Case No. 01-1648 __________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT __________________________________________ LISA OCHELTREE, Plaintiff-Appellee, v. SCOLLON PRODUCTIONS, INC., Defendant-Appellant. __________________________________________________________ On Appeal from the United States District Court for the District of South Carolina, Case No. 96-CV-1215, Rehearing En Banc __________________________________________________________ Brief of the U.S. Equal Employment Opportunity Commission as Amicus Curiae Supporting Plaintiff-Appellee __________________________________________________________ NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel LOUIS LOPEZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, 7th Floor Washington, DC 20507 (202) 663-4098 TABLE OF CONTENTS TABLE OF AUTHORITIES ii STATEMENT OF INTEREST 1 STATEMENT OF FACTS 1 SUMMARY OF ARGUMENT 4 ARGUMENT Harassing conduct and comments need not be directed at a particular individual to satisfy the “based on sex” requirement in hostile work environment claims. 7 II. The sexually explicit, harassing conduct in this case satisfies the “based on sex” requirement in hostile work environment claims. 13 III. The majority erred by refusing to consider harassing conduct — which was clearly sexual in nature even though not directed at Ocheltree — when assessing the severity or pervasiveness of the hostile work environment claim. 16 CONCLUSION 24 CERTIFICATE OF COMPLIANCE 25 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES Anderson v. G.D.C., Inc., 281 F.3d 452 (4th Cir. 2002) 6 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) 22 Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 1990) 14 Brown v. Henderson, 257 F.3d 246 (2d Cir. 2001) 10 Cline v. Gen. Elec. Credit Auto. Lease, Inc., 748 F. Supp. 650 (N.D. Ill. 1990) 14 Conner v. Schrader-Bridgeport Int'l, Inc., 227 F.3d 179 (4th Cir. 2000) 7, 21 Doe v. City of Belleville, 119 F.3d 563 (7th Cir. 1997), vacated and remanded, 523 U.S. 1001 (1998) 13 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) 6, 15-16, 20, 22-23 Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982) 11 Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987) 17 Jackson v. Quanex Corp., 191 F.3d 647 (6th Cir. 1999) 7, 21 Jenson v. Eveleth Taconite Co., 824 F. Supp. 847 (D. Minn. 1993) 8 Lack v. Wal-Mart Stores, Inc., 240 F.3d 255 (4th Cir. 2001) 9, 18 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986) 6, 10-11 Ocheltree v. Scollon Prods., Inc., 308 F.3d 351 (4th Cir. 2002) passim Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) 14-16, 20, 23 O'Rourke v. City of Providence, 235 F.3d 713 (1st Cir. 2001) 17 O'Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093 (10th Cir. 1999) 19 Penry v. Fed. Home Loan Bank of Topeka, 155 F.3d 1257 (10th Cir. 1998) 13, 19, 23 Perry v. Harris Chernin, Inc., 126 F.3d 1010 (7th Cir. 1997) 20 Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486 (M.D. Fla. 1991) 8, 10, 12-13, 20 Rodgers v. Western- Southern Life Ins. Co., 12 F.3d 668 (7th Cir. 1993) 10-11 Schwapp v. Town of Avon, 118 F.3d 106 (2d Cir. 1997) 7 Smith v. First Union Nat'l Bank, 202 F.3d 234 (4th Cir. 2000) 9, 20 Smith v. Sheahan, 189 F.3d 529 (7th Cir. 1999) 11 Spriggs v. Diamond Auto. Glass, 242 F.3d 179 (4th Cir. 2001) 17, 19 Stahl v. Sun Microsystems, Inc., 19 F.3d 533 (10th Cir. 1994) 8 Steiner v. Showboat Operating Co., 25 F.3d 1459 (9th Cir. 1994) 9 Tights, Inc. v. Acme McCrary Corp., 541 F.2d 1047 (4th Cir. 1976) 22 Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62 (2d Cir. 2000) 8 FEDERAL STATUTES, REGULATIONS AND POLICY GUIDANCE Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. 1 42 U.S.C. § 2000e-2(a)(1) 6 29 C.F.R. § 1604.11(a) 13, 15 Policy Guidance on Current Issues of Sexual Harassment, 8 Fair Empl. Prac. Man. (BNA) 405:6681 (EEOC Mar. 19, 1990) 11 LAW REVIEW ARTICLES Kathryn Abrams, The New Jurisprudence of Sexual Harassment, 83 Cornell L. Rev. 1169 (1998) 12 Katherine M. Franke, What's Wrong with Sexual Harassment?, 49 Stan. L. Rev. 691 (1997) 13 STATEMENT OF INTEREST The U.S. Equal Employment Opportunity Commission (EEOC or Commission) is the federal agency charged by Congress to administer, interpret and enforce Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and other federal employment anti-discrimination statutes. In this case, a panel of the Fourth Circuit reversed a jury verdict finding that Lisa Ocheltree was subjected to a hostile work environment while employed at Scollon Productions, Inc. In reaching this conclusion, the majority held that conduct not directed at Ocheltree was not based on her sex and therefore irrelevant to her claim of a hostile work environment. Accordingly, this appeal raises important questions concerning: (1) whether harassing conduct needs to be directed at a particular individual to satisfy the “based on sex” requirement in hostile work environment cases; and (2) whether courts should consider such conduct as relevant evidence when evaluating the severity or pervasiveness of the hostile work environment. Because resolution of these questions will affect EEOC's enforcement of federal anti-discrimination laws, the Commission offers its views to the en banc Court. STATEMENT OF FACTS Lisa Ocheltree was employed in the production shop of Scollon Productions, Inc. from February 1994 until her discharge in August 1995. The production shop was comprised of 10 or 11 men and Ocheltree, the only woman. During her employment, the male production staff engaged on a daily basis in graphic conversations about their sexual exploits, used foul, vulgar and profane language, and told sexually-oriented jokes. Specifically, Ocheltree testified that her male coworkers made the following comments: that girl “gave good head and she likes to swallow,” “I fucked her all night long,” “she liked it from behind,” “she would do it anywhere with him,” “she could suck a golf club through a garden hose,” and would “speak of [his wife] sucking his dick and swallowing and letting it run down the side of her face.” JA 118-20, 200. Ocheltree also testified that management at Scollon engaged in the sexual harassment. For example, she stated that Harold Hirsch, her supervisor, announced that he enjoyed having sex with young boys and that Hirsch's comments were “purposely said in front of [her] because [Hirsch and two other male coworkers] enjoyed looking at [her] and seeing [her] reaction.” JA 119. On another occasion, Ellery Locklear, Scollon's vice president, told Ocheltree that “if [she] didn't like it there that [she] ought to go home and be a housewife, that maybe [she was] not cut out to be here, to be at this job.” JA 129. Finally, Ocheltree recounted three specific incidents of sexual harassment. First, a male coworker sang the following words to Ocheltree, “Come to me, oh, baby come to me, your breath smells like cum to me.” All of the male production staff, including her supervisor, laughed at this sight. JA 114-15. In the second incident, two male production employees positioned themselves in front of Ocheltree and simulated sex with a mannequin, who was dressed in a fish net bra and panties. One employee was pinching the mannequin's nipples, and the other was on his knees simulating oral sex. Ocheltree told the men that it was “disgusting” and that it needed to stop. As she turned to leave the room, the male production staff laughed. She later complained to her supervisor about this incident. JA 115-17. The trial evidence shows that sexually-charged behavior with the mannequin was commonplace; the male production staff would often simulate sex acts with the mannequin, especially when Ocheltree was nearby because they knew it bothered her. JA 202. On the third occasion, a male production employee showed Ocheltree a book that was opened to a page depicting a photograph of a man's genital area where the scrotum was pierced with hoops with chains running up to the top of the penis. The coworker asked Ocheltree what she thought of the photograph as the male production staff, including her supervisor, looked on and laughed. JA 117-18. Ocheltree and Brian Hodge, a male coworker in the production shop, testified that the work environment became more hostile throughout their employment at Scollon. JA 112-13; 199-200. Ocheltree testified that her informal complaints to her male coworkers and supervisor about the sexual harassment proved unsuccessful at stopping the offensive conduct. Thus, at a safety meeting of the production shop, Ocheltree reiterated her complaint and requested that the sexual harassment stop. JA 144-45. Rather than cease, however, the hostility and harassment continued and arguably intensified in Ocheltree's presence — becoming increasingly coarse and occurring with greater frequency until Ocheltree's discharge in August 1995. JA 202-04; 214-25. SUMMARY OF ARGUMENT The Fourth Circuit panel's decision overturning the jury verdict in this case rests on an erroneous standard for deciding whether harassing conduct is “based on sex.” Contrary to the majority's holding, harassing conduct need not be directed at a particular individual to satisfy the “based on sex” requirement in hostile work environment claims. Moreover, while verbal or physical conduct of a sexual nature will not automatically be deemed based on sex, such conduct certainly may have sex-based effects, where one gender is treated differently than the other gender. Even if the objectionable conduct in question does not originate with the purpose of offending women in the workplace, it may still be based on sex if the effect of the conduct is to create an environment which is, for example, more demeaning to women or disproportionately hostile to women precisely because they are women. A woman should not have to assume the risk of harassment by accepting employment with a company where there is an existing anti-female work environment, as there was in this case. In this case, Ocheltree entered an all-male work environment in Scollon's production shop. In addition to being targeted for specific incidents of harassment, Ocheltree was subjected daily to sexually explicit discussions about her male coworkers' sexual exploits, which often depicted women as sexual objects for male gratification. Because the critical focus of a hostile work environment claim is the “environment,” courts consistently examine all of the surrounding circumstances to determine whether the hostility in a particular work environment is sufficiently severe or pervasive to alter the terms and conditions of employment. The majority erred by refusing to consider the cumulative effect of the general work atmosphere (including the sexual comments made in group settings) along with the particular instances of directed hostility toward Ocheltree, in determining whether she was subjected to a hostile work environment. Under this proper standard, the abundant evidence in this case, viewed in the light most favorable to Ocheltree, is more than sufficient to support the jury verdict in her favor. ARGUMENT Title VII of the Civil Rights Act of 1964 makes it an “unlawful employment practice for an employer ... to otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex.” 42 U.S.C. § 2000e-2(a)(1). From this statutory language, the Supreme Court held that “a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986). The Supreme Court has further explained that Title VII is violated “[w]hen the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotation marks and citations omitted). To establish a hostile work environment claim, a plaintiff is required to show four elements: (1) the subject conduct was unwelcome; (2) it was based on sex; (3) it was sufficiently severe or pervasive to alter the conditions of employment and to create an abusive work environment; and (4) it was imputable on some factual basis to the employer. See Anderson v. G.D.C., Inc., 281 F.3d 452, 458 (4th Cir. 2002). Whether a particular work environment is sexually hostile or abusive can be determined only by examining all of the relevant circumstances. In making this determination, courts should consider all evidence related to the hostile work environment. Incidents not expressly directed at the plaintiff and general conduct and comments, including those of a sexual nature, should be considered as they pertain to the question of whether the work environment is more hostile or disadvantageous to one sex. The “failure to consider the totality of the circumstances” and the “selective treatment of the evidence” constitute reversible error. Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) (reversing summary judgment where district court deemed irrelevant racially derogatory comments that were not made in the plaintiff's presence); see also Jackson v. Quanex Corp., 191 F.3d 647, 661 (6th Cir. 1999) (reversing district court's grant of judgment as a matter of law where court failed to consider totality of the circumstances in hostile work environment claim). Moreover, reviewing courts should avoid disaggregating the incidents and considering each offensive event in isolation because such an approach “robs the incidents of their cumulative effect” and “defeat[s] the entire purpose of allowing claims based upon a ‘hostile work environment' theory, as the very meaning of ‘environment' is ‘[t]he surrounding conditions, influences or forces which influence or modify.'” Jackson, 191 F.3d at 660 (citations omitted); see also Conner v. Schrader-Bridgeport Int'l, Inc., 227 F.3d 179, 193-94 (4th Cir. 2000). I. Harassing conduct and comments need not be directed at a particular individual to satisfy the “based on sex” requirement in hostile work environment claims. Courts have long recognized that harassing conduct and comments may be deemed based on sex even when the behavior “is not directed at a particular individual or group of individuals, but is disproportionately more offensive or demeaning to one sex.” Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1522-23 (M.D. Fla. 1991); see also Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 68 (2d Cir. 2000) (plaintiff need not be the target of harassing comments made to other employees in order for them to support plaintiff's hostile work environment claim); Stahl v. Sun Microsystems, Inc., 19 F.3d 533, 538 (10th Cir. 1994) (“[B]ecause one of the critical inquiries in this claim is the environment, incidents of sexual harassment directed at employees other than the plaintiff can be used as proof of the plaintiff's claim of a hostile work environment.”) (internal quotation marks and citation omitted). Harassing conduct that occurs in group settings therefore should not insulate an employer from Title VII liability, especially when women are “subjected to language which derogate[s] them and their sex in general, either by the meaning of the words themselves or through the meaning which was derived from the way in which the words were uttered.” Jenson v. Eveleth Taconite Co., 824 F. Supp. 847, 880 (D. Minn. 1993) (“No female employee should be required to confront sexually suggestive language and noises from male employees, either individually or in groups.”). Harassing conduct and comments that depict women in a degrading manner may satisfy the “based on sex” requirement when such behavior makes the work environment more hostile to a female than to her male coworkers precisely because she is a woman. Even if not directed at offending a particular female, harassing conduct that sexualizes the work environment to the detriment of all females is based on sex. Harassing conduct occurring in group settings of both men and women also may be based on sex if, for example, the conduct toward men is not related to their gender, but the conduct toward women centers on the fact that they are females. See Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994) (holding that a reasonable jury could find sex discrimination where harassment toward women “relied on sexual epithets, offensive, explicit references to women's bodies and sexual conduct”). The mere fact that some men also find harassing conduct to be offensive, as in this case, does not negate a finding that the conduct is based on sex, nor that the conduct could be found more offensive and hostile by women. See Lack v. Wal-Mart Stores, Inc., 240 F.3d 255, 262 (4th Cir. 2001) (complaints by women of male supervisor's offensive conduct “do not, as a matter of law, preclude [male plaintiff's same-sex harassment] claim”); Smith v. First Union Nat'l Bank, 202 F.3d 234, 242 (4th Cir. 2000) (rejecting argument that female plaintiff could not be harassed based on sex because both men and women complained about the alleged harasser). Men may be offended by conduct and language that demeans or derogates women, but their offense is not due to behavior that denigrates their own sex or gender. See Brown v. Henderson, 257 F.3d 246, 254 (2d Cir. 2001) (“[A] woman might be abused in ways that cannot be explained without reference to her sex, notwithstanding the fact that a man received treatment at least as harsh, though for other non-[gender-related] reasons.”). This type of offensive conduct is properly viewed as based on sex because it “creates a barrier to the progress of women in the workplace [and] because it conveys the message that they do not belong, that they are welcome in the workplace only if they will subvert their identities to the sexual stereotypes prevalent in that environment. That Title VII outlaws such conduct is beyond peradventure.” Robinson, 760 F. Supp. at 1523. In some instances, such as this case, a female trailblazer may enter a historically male-dominated workplace that is already infused with sexually explicit, disparaging conduct, language and graffiti. In such circumstances, the employer may argue that the harassing conduct is not directed at the female employee or women in general because the conduct existed before the female's entry into the work environment. Such an argument, which the majority in this case found persuasive, directly contradicts Title VII's goal of affording “employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult.” Meritor, 477 U.S. at 65. Thus, when considering hostile work environment claims, courts should review “the lexicon of obscenity that pervaded the environment of the workplace both before and after the plaintiff's introduction into its environs.” Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir. 1993) (internal quotation marks omitted). “Employers who tolerate workplaces marred by exclusionary practices and bigoted attitudes cannot use their discriminatory pasts to shield them from the present-day mandate of Title VII.” Smith v. Sheahan, 189 F.3d 529, 535 (7th Cir. 1999). As such, a woman should not have to “assume the risk of harassment by voluntarily entering an abusive, anti-female environment.” Policy Guidance on Current Issues of Sexual Harassment, 8 Fair Empl. Prac. Man. (BNA) 405:6681, 6692 (EEOC Mar. 19, 1990). Indeed, the Supreme Court has noted that “a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets.” Meritor, 477 U.S. at 66 (quoting Henson v. City of Dundee, 682 F.2d 897, 902 (11th Cir. 1982)). Judge Michael's dissent in this case convincingly analogizes this type of situation to that of an African American employee entering an all-white workplace that tolerated a pattern of derogatory racial slurs both before and after his arrival. Judge Michael states that the “majority's reasoning suggests that if the employer could show that none of the racial slurs were directed at the plaintiff and that he would have been exposed to exactly the same language if he had been white, the harassment in this example could not be ‘because of race.'” Ocheltree v. Scollon Prods., Inc., 308 F.3d 351, 376 (4th Cir. 2002). Expressing serious discomfort with this outcome, Judge Michael notes that most courts would find that the black employee “suffers discrimination ‘because of race' because he is exposed to disadvantageous conditions of employment to which his white coworkers are not exposed,” making the workplace “more hostile to him precisely because he is black.” Id. This rationale applies to sexual harassment cases as well. For example, in this case, we submit that the offensive behavior at Scollon was always based on sex, and in particular demeaning to women; there simply was no female in the production shop to complain about its unwelcomeness and hostility. Neither Ocheltree nor any woman should have to bear any assumption of risk of harassment by taking a job in a company with an existing abusive, anti-female environment. Even if objectionable conduct does not originate with the purpose of offending women in the workplace (perhaps because no women worked in the jobs when the behavior began), such conduct may “clearly ha[ve] a disproportionately demeaning impact on the women” in a particular workplace. Robinson, 760 F. Supp. at 1523. See Kathryn Abrams, The New Jurisprudence of Sexual Harassment, 83 Cornell L. Rev. 1169, 1210-11 (1998) (observing that when women enter a predominantly male workplace, male coworkers often seek to reaffirm the masculine norms by “engag[ing] more intensely ... in talk that sexualizes or derogates women”). “A pre-existing atmosphere that deters women from entering or continuing in a profession or job is no less destructive to and offensive to workplace equality than a sign declaring ‘Men Only.'” Robinson, 760 F. Supp. at 1526. II. The sexually explicit, harassing conduct in this case satisfies the “based on sex” requirement in hostile work environment claims. In EEOC's Guidelines on Sexual Harassment, the Commission states that “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when ... such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.” 29 C.F.R. § 1604.11(a) (emphasis added). While verbal or physical conduct of a sexual nature will not automatically be deemed based on sex, such conduct certainly may have sex-based effects, where one gender is treated differently than the other gender. Whether the sexual conduct is an expression of desire, power, misogyny or something else is not dispositive; sexual conduct may reinforce the genders of the person acting and the person acted upon in the workplace. See Katherine M. Franke, What's Wrong with Sexual Harassment?, 49 Stan. L. Rev. 691, 763 (1997); see also Penry v. Fed. Home Loan Bank of Topeka, 155 F.3d 1257, 1261 (10th Cir. 1998) (“Conduct that is overtly sexual may be presumed to be because of the victim's gender.”); Doe v. City of Belleville, 119 F.3d 563, 576 (7th Cir. 1997) (Additional proof that harassment is based on sex is not “needed when the harassment has explicit sexual overtones ... [as] the content of that harassment in and of itself demonstrates the nexus to the plaintiff's gender that Title VII requires.”), vacated and remanded, 523 U.S. 1001 (1998) (remanded for reconsideration in light of Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998)); Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 n.3 (3d Cir. 1990) (“The intent to discriminate on the basis of sex in cases involving sexual propositions, innuendo, pornographic materials, or sexual derogatory language is implicit, and thus should be recognized as a matter of course. A more fact intensive analysis will be necessary where the actions are not sexual by their very nature.”); Cline v. Gen. Elec. Credit Auto. Lease, Inc., 748 F. Supp. 650, 654 (N.D. Ill. 1990) (“Sexual harassment cases differ because the discriminatory nature of the charged conduct speaks for itself. The main issue in sexual harassment cases is not whether the employer harassed the employee on the basis of her gender, but whether the claimed harassment affected the terms, conditions, or privileges of the plaintiff's employment, as Title VII uses those words.”). Significantly, the Supreme Court has not rejected the Commission's guidance. Even the Court's statement that it has “never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations,” Oncale, 523 U.S. at 80, does not signify that it would conclude that the conduct in this case is not gender-based. Indeed, “[t]he critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Oncale, 523 U.S. at 80 (quoting Harris, 510 U.S. at 25 (Ginsburg, J., concurring)). In this case, Ocheltree, the only woman in Scollon's production shop, was exposed to disadvantageous terms or conditions of employment to which her male coworkers were not exposed. The harassing comments made by Ocheltree's male coworkers easily classify as “verbal or physical conduct of a sexual nature.” 29 C.F.R. § 1604.11(a). Indeed, the majority conceded that the daily work discussions at Scollon “certainly were sexually explicit.” Ocheltree, 308 F.3d at 357. A short sampling of these graphic conversations demonstrate the clear sexual nature of the comments in question. These statements included: that girl “gave good head and she likes to swallow,” “I fucked her all night long,” “she liked it from behind,” “she could suck a golf club through a garden hose,” and he would often “speak of [his wife] sucking his dick and swallowing and letting it run down the side of her face.” JA 118-20, 200. Clearly, such comments make distinctions based on gender and reinforce the gender identities and stereotypes of the men saying them and the women to which they refer. While “discussions of sexual matters (including discussions of oral sex) are not automatically demeaning to women, ... the tone of the discussions in the production shop was hardly one of mutuality and respect.” Ocheltree, 308 F.3d at 374 (Michael, J., dissenting) (emphasis in original). Indeed, the offensive comments in this case actually portray women in a denigrating manner which made Ocheltree's environment more hostile to her than to her male coworkers because of her sex. Thus, the sexual comments should properly be deemed based on sex and relevant to Ocheltree's hostile work environment claim. III. The majority erred by refusing to consider harassing conduct — which was clearly sexual in nature even though not directed at Ocheltree — when assessing the severity or pervasiveness of the hostile work environment. A reasonable jury could and did find that the evidence of the offensive comments not directed at Ocheltree, coupled with the incidents of harassment targeted at Ocheltree, created a hostile work environment. The Supreme Court has stated that whether a work environment is hostile or abusive “can be determined only by looking at all the circumstances.” Harris, 510 U.S. at 23. Relevant considerations may include “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Id. The Supreme Court further has noted that the “real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.” Oncale, 523 U.S. at 82. Accordingly, one of the critical inquiries in a hostile work environment claim must be the environment. “Evidence of a general work atmosphere therefore — as well as evidence of specific hostility directed toward the plaintiff — is an important factor in evaluating the claim.” Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415 (10th Cir. 1987). The “accumulated effect” of incidents of offensive comments directed at women and other harassing conduct, “taken together, can constitute a hostile work environment.” O'Rourke v. City of Providence, 235 F.3d 713, 729 (1st Cir. 2001). Of course, to be actionable, “the conduct must create an objectively hostile or abusive work environment, and the victim must also perceive the environment to be abusive.” Spriggs v. Diamond Auto. Glass, 242 F.3d 179, 184 (4th Cir. 2001). In this case, the majority held that “[o]f the catalogued offensive behavior, only three incidents were directed at Ocheltree — the vulgar song, the body-piercing magazine, and the sexual acts with the mannequin.” Ocheltree, 308 F.3d at 356-57. This conclusion is belied by the facts of this case, as Ocheltree presented sufficient evidence from which a reasonable jury could find that once she entered Scollon's male-dominated workforce, she was targeted for harassment, unlike the other male production employees. For example, Ocheltree testified that she was the only woman working in an environment with 10 or 11 men who engaged on a daily basis in sexually explicit conduct intended to make her feel uncomfortable. There was no evidence presented to the jury that similar incidents to those targeting Ocheltree were intentionally directed at male production staff to make them feel uncomfortable, to provoke reactions from them, or to laugh at their responses to the offensive behavior. Indeed, Ocheltree testified that when she objected to the offensive conduct, her male coworkers “told [her] to get over it, [she] was in a male environment, [she] was the only female in the shop area.” JA 114. Moreover, after Ocheltree complained of the sexual harassment at a staff meeting, the amount and frequency of the offensive conduct and comments by her male coworkers escalated considerably. JA 202-04. Yet, the majority narrowly interpreted this evidence, finding that after Ocheltree's complaint, “one can only conclude that the behavior worsened for all employees and was equally offensive to men and women alike.” Ocheltree, 308 F.3d at 359. The majority clearly missed the point and its conclusion is contrary to the substantial record evidence. Indeed, the trial evidence revealed that only Ocheltree experienced increased hostility after her complaint. There was no evidence presented that the male production staff was subjected to increased intimidation, ridicule, or insult after Ocheltree's complaint. Ocheltree produced sufficient evidence of conduct directed at her from which a reasonable jury could find that she was “treated differently” and “with greater hostility” because she was a woman. Lack, 240 F.3d at 261 (“Since a hostile work environment claim is fundamentally a sex discrimination claim, a male plaintiff must establish that the harasser discriminated against him, i.e., treated him differently or with greater hostility, because he is a man.”). In addition, the majority discounted the remainder of the harassing comments made by Ocheltree's male coworkers because they “occurred in group settings” and therefore, according to the majority, were not based on Ocheltree's sex. Ocheltree, 308 F.3d at 357. Because the majority did not consider these offensive comments to be gender-based, the Fourth Circuit panel in effect held that such comments could never be considered relevant evidence that the work environment was more hostile to one sex. Courts, however, should not “mechanically proceed[] through the evidence, determining that certain of [the harasser's] conduct was gender-based (and therefore relevant to the plaintiffs' claims), while determining that other conduct was not gender-based (and was therefore irrelevant to the plaintiffs' claims).” Penry, 155 F.3d at 1262. Title VII sexual harassment case law “eschew[s] such a mechanical approach to analyzing hostile work environment claims.” Id.; see also Spriggs, 242 F.3d at 184 (rejecting argument that “conduct targeted at persons other than [plaintiff] cannot be considered” relevant when evaluating hostile work environment claim); O'Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1099 (10th Cir. 1999) (“Even though these statements may not have been directed specifically at Plaintiff, they nonetheless have gender-related implications and we cannot, with straight faces, say that this conduct had nothing to do with gender.”) (internal quotation marks, brackets and citation omitted). Thus, under the proper analysis — fully considering the offensive comments not expressly directed at Ocheltree — a reasonable jury could and did find that she was “exposed to disadvantageous terms or conditions of employment” to which her male coworkers were not exposed. Oncale, 523 U.S. at 80 (quoting Harris, 510 U.S. at 25 (Ginsburg, J., concurring)). As stated earlier, the offensive comments that occurred in group settings at Scollon's production shop may constitute harassment based on sex if the comments are shown to be disproportionately demeaning toward women. See Robinson, 760 F. Supp. at 1522-23. This is clearly demonstrated in this case. For example, Ocheltree's male coworkers engaged in daily discussions about their sexual exploits, frequently portraying women as sexual objects existing only to gratify male desires. The sexual comments, always made in Ocheltree's presence, were far too graphic and occurred far too frequently to be dismissed as “occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers.” Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir. 1997) (citation omitted). Rather, these comments, which unequivocally depict women in a degrading and exploitative manner, constitute harassment based on sex because they made the work environment more hostile to Ocheltree than to her male coworkers precisely because she is a woman. See Smith v. First Union Nat'l Bank, 202 F.3d at 242 (“A work environment consumed by remarks that intimidate, ridicule, and maliciously demean the status of women can create an environment that is as hostile as an environment that contains unwanted sexual advances.”). As a result of its refusal to consider the full range of sexually explicit comments made in Ocheltree's presence, the majority held that only evidence of the three incidents directed at Ocheltree could be deemed based on sex and, collectively, they could not be considered “severe or pervasive for purposes of Title VII.” Ocheltree, 308 F.3d at 359. We believe the majority erred in eliminating most of the harassing comments from the severe or pervasive analysis in this case. As we have indicated, the sexually charged comments by Ocheltree's male coworkers, even though not directed at her, are relevant and did contribute to the overall hostility at Scollon's production shop. See Jackson, 191 F.3d at 661 (“[I]n the sexual harassment context, this Court has deemed probative remarks that demeaned women generally while not demeaning any one woman in particular.”). Thus, the proper question is whether a reasonable jury could find that, taken together, the incidents directed at Ocheltree and the daily sexually explicit workplace banter involving derogatory descriptions of women were sufficiently severe or pervasive to alter the conditions of Ocheltree's employment and to create a hostile work environment. The Fourth Circuit has recognized that “whether the harassment was sufficiently severe or pervasive to create a hostile work environment is quintessentially a question of fact for the jury, as is the issue of the plaintiff's credibility.” Conner, 227 F.3d at 199-200 (internal quotation marks and citation omitted). It is therefore inappropriate for a reviewing court to re-weigh the evidence, make new credibility determinations, draw additional inferences from the facts, or otherwise substitute its judgment for that of jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge ....”); Tights, Inc. v. Acme-McCrary Corp., 541 F.2d 1047, 1055 (4th Cir. 1976) (“We may not therefore weigh the evidence, pass on the credibility of witnesses, or substitute our judgment of the facts for that of the jury.”). We believe that a reasonable jury that fully considered Ocheltree's evidence at trial could find that she proved her hostile work environment claim. The record evidence clearly demonstrates that Ocheltree subjectively perceived the production shop as hostile. She complained of the harassment several times. JA 115-17, 144-45. Ocheltree also testified that when her male coworkers engaged in the harassing conduct she “would have to get up and leave [her] work area to go — just to get away from the atmosphere.” JA 120. She even sought medical treatment for the sexual harassment and was prescribed anti-depressant medication to address her feelings of embarrassment and humiliation at work. JA 126-27. Thus, the record evidence shows that the harassing conduct affected Ocheltree, the only female in Scollon's production shop, differently than it affected her male coworkers, i.e., it “ma[d]e it more difficult to do the job.” Harris, 510 U.S. at 25 (Ginsburg, J., concurring) (citation omitted). In deciding whether a reasonable jury could find that the work environment was objectively hostile, i.e., hostile to “a reasonable person in the plaintiff's position,” Oncale, 523 U.S. at 82, the majority should have considered the totality of the circumstances, including the daily banter of sexually explicit, derogatory discussions that permeated the production shop at Scollon. See Penry, 155 F.3d at 1263 (“Even where the motive behind the alleged conduct was not the plaintiff's gender, the court may still consider that conduct relevant when evaluating ... whether gender-motivated conduct was so severe and pervasive as to create Title VII liability.”). Title VII is violated when the hostility in the work environment is so severe or pervasive that it “detract[s] from employees' job performance, discourage[s] employees from remaining on the job, or keep[s] them from advancing in their careers.” Harris, 510 U.S. at 22. Applying these standards to the record evidence in this case, we believe that a reasonable jury could conclude that a reasonable person in Ocheltree's situation would experience the work environment as abusive. Thus, the majority erred in overturning the jury verdict finding that Ocheltree proved her hostile work environment claim. CONCLUSION For the foregoing reasons, we urge this Court to affirm the district court's decision to deny Defendant's motion for judgment as a matter of law and uphold the jury verdict finding that Ocheltree was subjected to a sexually hostile work environment in violation of Title VII. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ___________________________ LOUIS LOPEZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, 7th Floor Washington, DC 20507 (202) 663-4098 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(B). This brief contains 5,654 words, and was prepared using the WordPerfect 9.0 processing system in 14-point proportionally spaced type for text and 14-point proportionally spaced type for footnotes. ___________________________ LOUIS LOPEZ CERTIFICATE OF SERVICE I, Louis Lopez, hereby certify that on the 19th day of February 2003, I caused: (1) copies of the attached brief; (2) copies of EEOC's motion for leave to file its amicus curiae brief out of time and to participate in oral argument on ceded time by plaintiff-appellee; and (3) copies of my appearance of counsel form to be sent by Federal Express, next day delivery, to the following: Patricia S. Connor, Clerk of the Court U.S. Court of Appeals for the Fourth Circuit 1100 East Main Street, Suite 501 Richmond, VA 23219 Charles F. Thompson Michael D. Malone Tally, Malone, Thompson & Gregory 1527 Blanding Street Columbia, SC 29201 William E. Hopkins, Jr. McCutcheon, Blanton, Rhodes & Johnson, L.L.P. P.O. Box 11209 Columbia, SC 29211 ___________________________ LOUIS LOPEZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, 7th Floor Washington, DC 20507 (202) 663-4098