No. 07-10270 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ____________________________________________ INGRID REEVES, Plaintiff-Appellant, v. C.H. ROBINSON WORLDWIDE, INC., Defendant-Appellee. ____________________________________________ On Appeal from the United States District Court For the Northern District of Alabama, No. 06-00358-CV-2-IPJ The Honorable Inge P. Johnson, Judge ____________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE ON REHEARING EN BANC IN SUPPORT OF PLAINTIFF-APPELLANT AND REVERSAL ____________________________________________ JAMES L. LEE DORI K. BERNSTEIN Deputy General Counsel Attorney LORRAINE C. DAVIS U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 M Street, N.E., Room 5NW10R Assistant General Counsel Washington, D.C. 20507 (202) 663-4734 Dori.Bernstein@EEOC.gov Reeves v. C.H. Robinson Worldwide, Inc., No. 07-10270 CERTIFICATE OF INTERESTED PERSONS Pursuant to 11th Cir. R. 26.1-1, the following is a list of persons or entities that have an interest in the outcome of this appeal: Bernstein, Dori K., Attorney, Office of General Counsel, EEOC, amicus curiae Campbell, Margaret H., Counsel for Defendant-Appellee C.H. Robinson Worldwide, Inc., Defendant-Appellee Davis, Lorraine C., Acting Associate General Counsel, EEOC, amicus curiae Equal Employment Opportunity Commission (EEOC), amicus curiae Johnson, Honorable Inge P., United States District Judge Lee, James L., Deputy General Counsel, EEOC, amicus curiae Lieder, Michael D., Counsel for Plaintiff-Appellant Micko, Douglas L., Counsel for Plaintiff-Appellant Mixon, Christopher A., Counsel for Defendant-Appellee Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Counsel for Defendant-Appellee Reeves, Ingrid, Plaintiff-Appellant Reiss, Sandra B., Counsel for Defendant-Appellee Simon, Kell A., Counsel for Plaintiff-Appellant Sprenger & Lang, PLLC, Counsel for Plaintiff-Appellant Warren, David L., Counsel for Defendant-Appellee Reeves v. C.H. Robinson Worldwide, Inc., No. 07-10270 Wheeler, Carolyn L., Assistant General Counsel, EEOC, amicus curiae TABLE OF CONTENTS Page CERTIFICATE OF INTERESTED PERSONS..................................................C-1 TABLE OF CITATIONS..................................................................ii STATEMENT OF INTEREST................................................................1 STATEMENT OF THE ISSUES..............................................................3 SUMMARY OF ARGUMENT..................................................................4 ARGUMENT.............................................................................6 I. The District Court Erred In Holding That Reeves Could Not Demonstrate Discrimination Based On Sex In Her Terms Or Conditions Of Employment Because A Jury Could Find Her Work Environment Was Objectively More Hostile Or Offensive To Women Than To Men..............................................................6 II.An Employer Who Maintains A Sex-Based Hostile Work Environment, As Alleged By Reeves, Is Liable For Disparate Treatment Because Of Sex, In Violation Of Title VII........................................................................23 CONCLUSION..........................................................................27 CERTIFICATE OF COMPLIANCE...........................................................28 CERTIFICATE OF SERVICE TABLE OF CITATIONS Page CASES Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 1990)....................................................13 Baldwin v. Blue Cross/Blue Shield of Alabama, 480 F.3d 1287 (11th Cir. 2007)..................................................11 Barbetta v. Chemlawn Services Corp., 669 F.Supp. 569 (W.D.N.Y. 1987).................................................14 Brennan v. Metropolitan Opera Association, Inc., 192 F.3d 310 (2d Cir. 1999).....................................................22 * Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275 (1998).....................................24, 25, 26 * Gallagher v. C.H. Robinson Worldwide, Inc., ___ F.3d ___, 2009 WL 1423967 (6th Cir. May 22, 2009) .........12, 14, 15, 16, 17 Griggs v. Duke Power, 401 U.S. 242, 91 S.Ct. 849 (1973)...............................................25 Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S.Ct. 367 (1993)......................................6, 8, 9, 10 Henson v. Dundee, 682 F.2d 897 (11th Cir. 1982)................................................7, 11 * Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399 (1986)..............6, 7, 8, 9, 11, 17, 18, 19, 20, 24 Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269 (11th Cir. 2002)..................................................25 Ocheltree v. Scollon Products, Inc., 335 F.3d 325 (4th Cir. 2003) (en banc)..........................................12 * Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S.Ct. 998 (1998).............................8, 9, 10, 15, 17, 24 * Petrosino v. Bell Atlantic, 385 F.3d 210 (2d Cir. 2004).............................................12, 21, 22 Quick v. Donaldson, 90 F.3d 1372 (8th Cir. 1996)....................................................26 * Reeves v. C.H. Robinson Worldwide, Inc., 525 F.3d 1139 (11th Cir. 2008), vacated, ___ F.3d ___, 2008 WL 6153721 (11th Cir. May 29, 2009)................. 1, 2, 11, 16, 17, 20, 26 Reeves v. C.H. Robinson Worldwide, Inc., No. 2:06-CV-358-IPG (N.D. Ala. Dec. 11, 2006).................................1, 6 Robinson v. Jacksonville Shipyards, Inc., 760 F.Supp. 1486 (M.D. Fla. 1991)...............................................13 * Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971)............................................18, 19, 20 * Walker v. Ford Motor Co., 684 F.2d 1355 (11th Cir. 1982)..............................................20, 21 Yuknis v. First Student, Inc., 481 F.3d 552 (7th Cir. 2007)....................................................23 STATUTES Title VII of the Civil Rights Ace of 1964, 42 U.S.C. §§ 2000e et seq..........................................................1 42 U.S.C. § 2000e-2(a)(1)................................................2, 5, 6, 24 42 U.S.C. § 2000e-2(a)(2)......................................................5, 26 42 U.S.C. § 2000e-2(k).....................................................5, 25, 26 Page RULES AND REGULATIONS Fed.R.App.P. 29(a)................................................................... 2 Fed.R.App.P. 32(a)(7)................................................................28 11th Cir. R. 26.1-1.................................................................C-1 11th Cir. R. 35-9.....................................................................2 ADMINISTRATIVE GUIDANCE 29 C.F.R. § 1604.11(a)(3).........................................................7, 18 45 Fed. Reg. 74676 (1980)............................................................18 EEOC Policy Guidance on Current Issues of Sexual Harassment, No. N-915-050 (Mar. 19, 1990).....................................................12 STATEMENT OF INTEREST The Equal Employment Opportunity Commission (EEOC) is the agency established by Congress to administer, interpret, and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This Court has granted rehearing en banc of summary judgment against plaintiff-appellant Ingrid Reeves’s claim that the sex-specific epithets, raunchy jokes, and sexually explicit discussions and radio broadcasts that permeated her workplace on a daily basis subjected her to a hostile work environment because of her sex, in violation of Title VII. The district court held that because none of the offensive conduct specifically targeted or referenced Reeves, and her male colleagues were equally exposed to the same crude language and radio programs, she had not suffered “harassment on the basis of her sex,” as required to establish a violation of Title VII. See Reeves v. C.H. Robinson Worldwide, Inc., No. 2:06-CV-358-IPG, at 19-20, 24 (N.D. Ala. Dec. 11, 2006). A unanimous appellate panel reversed, holding that because the “‘sex specific profanity’” and “conversations and jokes that allegedly permeated the office on a daily basis” were “more degrading to women than men,” the evidence was “sufficient to survive summary judgment” as to whether the hostile environment Reeves encountered was “based on” her sex. See Reeves v. C.H. Robinson Worldwide, Inc., 525 F.3d 1139, 1144-45 (11th Cir. 2008), vacated, ___ F.3d ___, 2008 WL 6153721 (11th Cir. May 29, 2009). This Court granted en banc review, vacated the panel opinion, and requested supplemental briefs focused on the following issues: 1. Whether the district court erred when it granted summary judgment in favor of C.H. Robinson and against Reeves’s complaint of a hostile work environment on the ground that Reeves was not harassed “because of” her sex, 42 U.S.C. § 2000e-2(a)(1)? 2. Whether Reeves’s complaint of a hostile work environment should be evaluated as a claim of disparate treatment or a claim of disparate impact? In granting en banc review, this Court has raised important questions concerning the correct analysis under Title VII of a claim of hostile work environment sex discrimination. Because resolution of these questions by the en banc court will significantly affect Title VII enforcement efforts, the EEOC offers its views in support of Ingrid Reeves and reversal of summary judgment. As a federal agency, the EEOC is authorized to participate as amicus curiae before this Court. See Fed.R.App.P. 29(a); 11th Cir. R. 35-9. STATEMENT OF THE ISSUES 1. Whether the district court erred in holding that Reeves could not demonstrate discrimination because of her sex in her terms or conditions of employment, where the evidence would support a jury finding that her work environment was objectively more hostile or offensive to women than to men? 2. Whether an employer who maintains a sex-based hostile work environment, as alleged by Reeves, is liable for disparate treatment because of sex in violation of Title VII? SUMMARY OF ARGUMENT An employer who maintains a workplace permeated with language or conduct that a reasonable person would find particularly offensive to women engages in disparate treatment because of sex by subjecting female employees to disadvantageous working conditions to which males – who are not similarly required to work in an environment that is comparably hostile to men – are not subject. An employee whose workplace is saturated with slurs, conduct, or material that is objectively more offensive to women, and subjectively offensive to her, suffers discrimination because of her sex, regardless of whether the offensive conduct was directed at her or aimed exclusively at women. The district court erred in failing to determine whether the evidence would support a jury finding that Reeves’s work environment, taken as a whole, was objectively more offensive or hostile to women than to men. By focusing exclusively on whether Reeves was the target of sex-specific epithets, crude discussions, and salacious radio programs, to which men were also exposed, the court improperly restricted the evidentiary route by which Reeves could prove she endured a discriminatory work environment because of her sex. Evidence of harassment aimed specifically at Reeves, or proof that only women were exposed to the offensive conduct, are not the exclusive means of demonstrating sex discrimination in a hostile environment case; the nature of the objectionable conduct and its foreseeable effects are additional methods of raising an inference of workplace discrimination because of sex. A sex-based hostile work environment, as alleged by Reeves, subjects women to isadvantageous terms or conditions of employment and thus states a claim for disparate treatment because of sex, in violation of 42 U.S.C. § 2000e-2(a)(1). C.H. Robinson Worldwide (CHRW) is liable for the discriminatory environment created by Reeves’s coworkers upon a showing of combined knowledge and inaction, or demonstrable negligence, tantamount to the company’s adoption of the offending conduct and its effects, just as if CHRW had affirmatively authorized the creation of a work environment abusive to women as company policy. Because a policy of subjecting employees to a workplace permeated with conduct or material that is objectively more offensive to women – or to members of a particular racial, ethnic, or religious group – is plainly not a facially neutral employment practice that can be justified as a business necessity, Reeves’s complaint cannot be analyzed as a claim of disparate impact pursuant to 42 U.S.C. § 2000e-2(a)(2) and (k). ARGUMENT I. The District Court Erred In Holding That Reeves Could Not Demonstrate Discrimination Based On Sex In Her Terms Or Conditions Of Employment Because A Jury Could Find Her Work Environment Was Objectively More Hostile Or Offensive To Women Than To Men. The district court erred in holding that because Reeves was not the target of the epithets, crude discussions, and salacious radio programs to which men were also exposed, she was precluded, as a matter of law, from proving CHRW subjected her to a sex-discriminatory work environment. See Reeves v. C.H. Robinson Worldwide, Inc., No. 2:06-CV-358-IPG, at 19-20, 24 (N.D. Ala. Dec. 11, 2006). The court failed to recognize that a male-dominated workplace permeated with conduct or material that is particularly offensive to women can discriminatorily alter the working conditions of a female employee, regardless of whether the offensive behavior is aimed at her or exclusively at women. The court’s decision thus reveals a fundamental misconception of the nature of “‘abusive work environment’ harassment,” Harris v. Forklift Sys., Inc., 510 U.S. 17, 20, 114 S.Ct. 367, 370 (1993), as a form of actionable discrimination in violation of Title VII. Title VII broadly prohibits “discriminat[ion] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The Supreme Court in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399 (1986), endorsed the “hostile environment” theory of liability under Title VII, resting its holding on both the statutory text, which “evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment,” id., 477 U.S. at 64, 106 S.Ct. at 2404 (internal quotation marks and citations omitted), and the EEOC’s interpretive Guidelines. Id., 477 U.S. at 65, 106 S.Ct. at 2404-05. In particular, the Court expressly approved the EEOC’s definition of actionable sexual harassment to include “‘verbal or physical conduct of a sexual nature’ . . . where ‘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.’” Id. (quoting 29 C.F.R. § 1604.11(a)(3)); see id., 477 U.S. at 66, 106 S.Ct. at 2405 (EEOC “Guidelines . . . appropriately drew from, and were fully consistent with, the existing case law”). In so holding, the Court adopted the rationale of this Court in Henson v. Dundee, 682 F.2d 897, 902 (11th Cir. 1982): “Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, 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 67, 106 S.Ct. at 2405 (quoting Henson, 682 F.2d at 902). In subsequent decisions, the Supreme Court has reiterated that a “discriminatorily ‘abusive work environment’” exists “[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.” Harris, 510 U.S. at 18, 21, 114 S.Ct. at 369-70. In deciding whether harassment is actionable, the Court has “emphasized” repeatedly that “the statute does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same and of the opposite sex,” and “requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the ‘conditions’ of the victim’s employment.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 1002-03 (1998) (citing Harris, 510 U.S. at 21, 114 S.Ct. at 370; Meritor, 477 U.S. at 67, 106 S.Ct. at 2405-06). The Court in Oncale further “emphasized . . . that the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering ‘all the circumstances,’” and “requires careful consideration of the social context in which particular behavior occurs and is experienced by its target.” Id., 523 U.S. at 81, 118 S.Ct. at 1003. Cognizant that “[t]he 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,” the Court advised that “[c]ommon sense, and an appropriate sensitivity to social context will enable courts and juries to distinguish between simple teasing or roughhousing . . . and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive.” Id., 523 U.S. at 81-82, 118 S.Ct. at 1003. The district court in this case never determined whether the incessant profanity, sexually explicit discussions, and salacious radio broadcasts in the male-dominated Birmingham branch office of CHRW subjected Reeves to a hostile or abusive work environment under the familiar “severe or pervasive” standard. See Oncale, 523 U.S. at 81-82, 118 U.S. at 1003; Harris, 510 U.S. at 21-22, 114 S.Ct. at 370-71; Meritor, 477 U.S. at 67, 106 S.Ct. at 2405-06. Rather, the court rejected her claim on the ground that she could not prove CHRW subjected her to discriminatory working conditions on the basis of her sex because none of the offensive conduct was specifically directed at her, and men were equally exposed to it. See Reeves, No. 2:06-CV-358-IPG, at 19-20, 24. In so ruling, the court improperly restricted the “evidentiary route” Reeves “[chose] to follow . . . [to] prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted ‘discrimination . . . because of . . . sex.’” See Oncale, 523 U.S. at 80, 118 S.Ct. at 1002. The Court in Oncale emphasized that harassment is actionable only when it constitutes “‘discriminat[ion] . . . because of . . . sex,’” and reaffirmed that “‘the 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, 118 S.Ct. at 1002 (quoting Harris, 510 U.S. at 25, 114 S.Ct. at 372 (Ginsburg, J., concurring)). In rejecting “a categorical rule excluding same-sex harassment claims from the coverage of Title VII,” the Court provided various illustrative scenarios from which a factfinder could draw “the inference of discrimination” required by the statute. Id., 523 U.S. at 79, 118 S.Ct. at 1002. While such an inference is “easy to draw” where “the challenged conduct . . . involves explicit or implicit proposals of sexual activity,” the Court explained, “harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.” Id., 523 U.S. at 80, 118 S.Ct. at 1002. The Court continued: A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace. Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted “discrimination . . . because of . . . sex.” Id. The Court in Oncale thus acknowledged that a variety of “evidentiary route[s]” could lead a factfinder to the requisite “inference of discrimination” because of sex in a hostile environment case. Id. One such method of proof, as the appellate panel in this case correctly recognized, is through evidence of pervasive sex-specific slurs, sexually explicit discussions, and radio broadcasts that are objectively “more degrading to women than to men,” see Reeves v. C.H. Robinson Worldwide, Inc., 525 F.3d 1139, 1144-45 (11th Cir. 2008), vacated, ___ F.3d ___, 2008 WL 6153721 (11th Cir. May 29, 2009), regardless of whether the offensive conduct specifically targets the plaintiff or occurs openly in a mixed-sex workplace. In short, the panel correctly perceived that a reasonable jury could find the conduct Reeves routinely encountered in the Birmingham branch constituted an actionable “‘gauntlet of sexual abuse’” that erected an “‘arbitrary barrier to sexual equality’” in her workplace. See Meritor, 477 U.S. at 67, 106 S.Ct. at 2405 (quoting Henson, 682 F.2d at 902). This Court has previously recognized that certain epithets, such as “bitch,” “slut,” and “tramp,” are “more sex specific, which is to say more degrading to women than to men,” and therefore “may be considered, for whatever weight they have, on the sexual harassment scales,” even when used to refer to women other than the plaintiff. Baldwin v. Blue Cross/Blue Shield of Alabama, 480 F.3d 1287, 1302 (11th Cir. 2007). The EEOC has emphasized, moreover, that “[i]n general, a woman does not forfeit her right to be free from sexual harassment by choosing to work in an atmosphere that has traditionally included vulgar, anti-female language,” or pornographic materials. See EEOC Policy Guidance on Current Issues of Sexual Harassment, No. N-915-050 at 8-9 (Mar. 19, 1990). Other Courts of Appeals have similarly acknowledged that various types of sexually offensive conduct or material – such as jokes or comments that demean women, explicit descriptions of sexual exploits, and pornographic depictions of women – may be particularly degrading or offensive to female employees, especially for a lone woman in a traditionally male-dominated workplace. See, e.g., Gallagher v. C.H. Robinson Worldwide, Inc., ___ F.3d ___, ___ 2009 WL 1423967 at *5-*6 (6th Cir. May 22, 2009) (male employees’ “vulgar descriptions of female customers, associates, and even friends as ‘bitches,’ ‘whores,’ ‘sluts,’ ‘dykes,’ and ‘cunts;’ . . . joint ogling and discussions of obscene photographs and pornographic magazines; and . . . explicit conversations about their own sexual practices and strip club exploits” were “explicitly sexual and patently degrading of women”); Petrosino v. Bell Atlantic, 385 F.3d 210, 222 (2d Cir. 2004) (“comments and graphics that permeated [plaintiff’s] work environment may have sexually ridiculed both men and women,” but “the insults were directed at certain men, not men as a group” while, “[b]y contrast, the depiction of women in the offensive jokes and graphics was uniformly sexually demeaning and communicated the message that women as a group were available for sexual exploitation by men”); Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 328-29, 332 (4th Cir. 2003) (en banc) (jury could find “daily stream of discussion and conduct” by male employees, who “used a female-form mannequin as a prop to engage in sexual antics” and described “sexual exploits with their wives and girlfriends in extremely graphic terms,” “was particularly offensive to women”); Andrews v. City of Philadelphia, 895 F.2d 1469, 1485-86 (3d Cir. 1990) (“[o]bscene language and pornography quite possibly could be regarded as highly offensive to a woman who seeks to deal with her fellow employees and clients with professional dignity and without the barrier of sexual differentiation and abuse”) (internal quotation omitted). A number of district courts have also recognized that sexually offensive material or conduct, while not directed at a particular female employee, can contribute to a discriminatory work environment because it demeans women generally. See, e.g., Robinson v. Jacksonville Shipyards, Inc., 760 F.Supp. 1486, 1522-23 (M.D. Fla. 1991) (actionable harassment because of sex includes “behavior that is not directed at a particular individual or group of individuals, but is disproportionately more offensive or demeaning to one sex,” such as “pictures of nude and partially nude women . . ., behavior that did not originate with the intent of offending women in the workplace (because no women worked in the jobs when the behavior began) but clearly [having] a disproportionate impact on the women now working [there]”; pornography in workplace, “even if not directed at offending a particular female employee, sexualizes the work environment to the detriment of all female employees”); Barbetta v. Chemlawn Services Corp., 669 F.Supp. 569, 573 (W.D.N.Y. 1987) (proliferation in workplace of pornography and demeaning comments “may be found to create an atmosphere in which women are viewed as men’s sexual playthings rather than as their equal coworkers”). The Sixth Circuit recently reached the same conclusion as the appellate panel in this case and reversed summary judgment against the hostile environment claim of Julie Gallagher, a female employee in CHRW’s Cleveland branch, who encountered a work environment “disturbingly similar” to the one Reeves experienced in the Birmingham branch. Gallagher, 2009 WL 1423967 at *6. Like Reeves, Gallagher “could not avoid exposure” to “commonplace offensive occurrences,” including: “coworkers’ vulgar descriptions of female customers, associates, and even friends as ‘bitches,’ ‘whores,’ ‘sluts,’ ‘dykes,’ and ‘cunts;’ coworkers’ joint ogling and discussions of obscene photographs and pornographic magazines; and coworkers’ explicit conversations about their own sexual practices and strip club exploits.” Id. at *5. Aside from a few “incidents, in which offensive conduct was directed at Gallagher,” the Sixth Circuit acknowledged, “much of the other highly offensive conduct was not directed at Gallagher” and “does not appear to have been motivated by Gallagher’s presence or by the fact that she is a woman.” Id. The district court in Gallagher, like the court below, “concluded that because much of the offensive conduct Gallagher complained of occurred in an open forum where men and women worked together, it did not occur because she is a woman and was therefore not based on sex.” Id. at *6. “This conclusion,” the Sixth Circuit decided, “reflects a mistaken perception of what is required to find that conduct is ‘based on sex’ in the legal sense.” Id. at *5. “[M]ost of the complained of harassment,” the Court recognized, including “conduct directed at Gallagher and indiscriminate conduct – is explicitly sexual and patently degrading of women.” Id. *6. Because “[t]he natural effect of exposure to such offensive conduct is embarrassment, humiliation and degradation, irrespective of the harasser’s motivation – especially and all the more so if the captive recipient of the harassment is a woman,” the Court reasoned, “it is hardly necessary for Gallagher to otherwise show that the conduct evinces anti-female animus; it is obvious.” Id. The Sixth Circuit therefore held that “even though members of both sexes were exposed to the offensive conduct at the Cleveland office, considering the nature of the patently degrading and anti-female nature of the harassment, it stands to reason that women would suffer, as a result of the exposure, greater disadvantage in the terms and conditions of their employment than men.” Id. (citing Oncale, 523 U.S. at 80, 118 S.Ct. at 1002). In concluding otherwise, the Court explained, the district court “focused too narrowly on the motivation for the harassers’ offensive conduct rather than on the effects of the conduct on the victim-recipient.” Id. Similarly, evidence that the working environment in CHRW’s Birmingham branch was objectively hostile to women, and subjectively offended Reeves, is sufficient to support a finding that she suffered discrimination because of sex in her terms or conditions of employment. Viewing the evidence most favorably to Reeves, as required on summary judgment, a jury could find that she endured a male-dominated workplace permeated with conduct – sex-specific epithets (e.g., “bitch,” “whore,” “cunt,” etc.), raunchy jokes, sexually explicit discussions, a pornographic computer image, and salacious radio broadcasts – that was objectively more demeaning and offensive to women, and persisted despite her repeated complaints. See Reeves, 525 F.3d at 1141-42. Because a jury could find Reeves’s male colleagues were not required to work in an environment that was similarly degrading or hostile to men, the evidence is sufficient to demonstrate that CHRW subjected her to disadvantageous working conditions because of her sex. Like the district court in Gallagher, the trial court in this case “focused too narrowly on the motivation for the harassers’ offensive conduct rather than on the effects of the conduct on the victim-recipient,” see Gallagher, 2009 WL 1423967 at *6, and thereby improperly restricted the “evidentiary route” Reeves “[chose] to follow . . . [to] prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted ‘discrimination . . . because of . . . sex.’” See Oncale, 523 U.S. at 80, 118 S.Ct. at 1002. The district court erred by holding that because Reeves was not the target of the epithets, crude discussions, and salacious radio programs to which men were also exposed, she was precluded, as a matter of law, from proving CHRW subjected her to a sex-discriminatory work environment. Evidence of sexually derogatory conduct directed specifically at the plaintiff, or only at women, is not the exclusive means of proving sex discrimination in a hostile environment case; the nature of the offensive conduct and its foreseeable effects are additional methods by which Reeves could raise an inference of discrimination because of her sex in her terms or conditions of employment. In addition to the Sixth Circuit’s decision in Gallagher, the EEOC’s interpretive Guidelines, the Supreme Court’s decision in Meritor, and the decisions of this Court and other Circuits, support the appellate panel’s rationale and holding that pervasive, non-targeted conduct or language that is “more degrading to women than men” can create a discriminatory work environment “based on” sex. See Reeves, 525 F.3d at 1145. “[E]ven if such language was used indiscriminately in the office such that men and women were equally exposed to the language,” the panel reasoned, “the language had a discriminatory effect on Reeves because of its degrading nature.” Id. The EEOC’s definition of actionable sexual harassment, approved by the Court in Meritor, includes “verbal or physical conduct of a sexual nature . . . 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)(3) (emphasis added). In fact, the seminal case on which both the EEOC and the Supreme Court relied in approving a hostile environment theory of discrimination, Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971), concerned conduct – the segregation of Hispanic patients of the respondent’s optometry practice – that would not be actionable under the rationale of the district court in this case. “In concluding that so-called ‘hostile environment’ . . . harassment violates Title VII,” the Court in Meritor explained, “the EEOC drew upon a substantial body of . . . precedent holding that Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult,” including Rogers, which “was apparently the first case to recognize a cause of action based upon a discriminatory work environment.” Meritor, 477 U.S. at 66, 106 S.Ct. at 2405; see 45 Fed. Reg. 74676 (1980) (citing Rogers among “analogous cases with respect to racial harassment”). The Meritor Court summarized the holding in Rogers “that a Hispanic complainant could establish a Title VII violation by demonstrating that her employer created an offensive work environment for employees by giving discriminatory service to its Hispanic clientele,” and quoted approvingly the decision’s rationale: “[T]he phrase ‘terms, conditions or privileges of employment in [Title VII] is an expansive concept which sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination. . . . One can readily envision working environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers . . . .” Meritor, 477 U.S. at 65-66, 106 S.Ct. at 2405 (quoting Rogers, 454 F.2d at 238). Citing cases in which courts had “applied this principle to harassment based on race, . . . religion, . . . and national origin,” the Court concluded that “[n]othing in Title VII suggests that a hostile environment based on discriminatory sexual harassment should not be likewise prohibited.” Id., 477 U.S. at 66, 106 S.Ct. at 2405 (citations omitted). Thus, the practice challenged in Rogers – ethnic segregation of patients – was not directed at the charging party, a Hispanic employee; it would have occurred regardless of her presence in the workplace; and it was conduct to which all employees (including non-Hispanic workers) were exposed. Yet the discriminatory treatment of clientele, the Court recognized, could demonstrate actionable discrimination in the terms or conditions of the complainant’s employment, due to its potential effect on “‘the emotional and psychological stability of minority group workers.’” See Meritor, 477 U.S. at 65-66, 106 S.Ct. at 2405 (quoting Rogers, 454 F.2d at 238). Similarly, as the appellate panel correctly recognized, see Reeves, 525 F.3d at 1144, this Court in Walker v. Ford Motor Co., 684 F.2d 1355 (11th Cir. 1982), decided that the nature and pervasiveness of racially offensive language, and its effects on the African-American plaintiff, were sufficient to demonstrate a discriminatory work environment in violation of Title VII, although the plaintiff alleged only “one occasion” when a coworker directed a racial epithet at him. Id. at 1358-59. Citing the trial court’s findings that “personnel’s use of the terms ‘nigger-rigged’ and ‘black-ass,’ as well as other racially abusive language was ‘repeated,’ ‘continuous,’ and ‘prolonged,’ despite Walker’s objections, and that the language made Walker feel unwanted and uncomfortable in his surroundings,” this Court affirmed the “conclusion that the work atmosphere at the . . . dealership violated” Title VII. Id. at 1359. The Court in Walker rejected the employer’s argument that the evidence was insufficient to support the finding of a discriminatory work environment because “the racial slurs used by [its] personnel were . . . common parlance of an automobile dealership (i.e., ‘nigger rigged’) . . . and in most instances not aimed at Walker.” Id. at 1358-59. “The fact that many of the epithets were not directed at Walter is not determinative,” this Court explained, because “[t]he offensive language often was used in Walker’s presence after he had voiced objections.” Id. at 1359 at n.2. The Second Circuit has likewise held that a female plaintiff in a male-dominated workplace permeated with sexually offensive comments and graffiti could demonstrate a discriminatory environment based on sex, notwithstanding that most of the objectionable conduct did not target her and male employees were equally exposed to it. See Petrosino v. Bell Atlantic, 385 F.2d 210, 222 (2d Cir. 2004). “The mere fact that men and women are both exposed to the same offensive circumstances on the job site,” the Court recognized, “does not mean that, as a matter of law, their work conditions are necessarily equally harsh.” Id. at 221. Evidence from which a jury could find sexually offensive comments and graffiti “more offensive to women than to men,” the Court held, would demonstrate the conduct was “discriminatory based on sex.” Id. at 222. While acknowledging that “much of this offensive material was not directed specifically at Petrosino – indeed, her male coworkers would likely have traded sexual insults every morning and defaced [company property] with sexual graffiti regardless of Petrosino’s presence in the . . . department,” the Second Circuit decided these circumstances did “not, as a matter of law, preclude a jury from finding that the conduct subjected Petrosino to a hostile work environment based on her sex.” Id. The Court reasoned that “‘[d]isplays of photos of Blacks being lynched or of nude women in sexually provocative poses would not be insulated from Title VII claims simply because the photos were observable by all office employees, White and Black, male and female.’” Id. (quoting Brennan v. Metropolitan Opera Association, Inc., 192 F.3d 310, 320 (2d Cir. 1999) (Newman, J., concurring)). The Court therefore rejected the “argument that the common exposure of male and female workers to sexually offensive material necessarily precludes a woman from relying on such evidence to establish a hostile work environment based on sex.” Id. As these authorities recognize, offensive conduct need not be directed toward the plaintiff to contribute to a discriminatory hostile work environment, and the common exposure of all employees to pervasive conduct that is more degrading to one gender (or race, ethnicity, or religion) does not preclude a hostile environment claim by a member of that sex (or racial, ethnic, or religious group). In short, an employee whose work environment is permeated with conduct or material that is objectively more offensive to women, and sufficiently severe or pervasive to alter her conditions of employment, suffers discrimination because of her sex, regardless of whether the offensive conduct was directed at her or aimed exclusively at women. Men who are exposed to (or offended by) the same workplace conduct that demeans women are not subject to working conditions that discriminate against them because of their sex, any more than a white employee who is offended by racially derogatory conduct that demeans African-Americans has suffered workplace discrimination because of his race. See Yuknis v. First Student, Inc., 481 F.3d 552, 554 (7th Cir. 2007) (offensive conduct is not discriminatory harassment “if one is not within the target area of the offending conduct – if, for example, the speech or conduct is offensive to women and one is a man or offensive to whites and one is a black,” but recognizing that “one could be in the target area because a group of which one was a member was being vilified, although one was not singled out”). Thus, regardless of whether Reeves’s male coworkers were specifically motivated by her gender to use sexist epithets, engage in crude discussions, view pornography at work, or listen to salacious radio programs, both the nature of this conduct and its foreseeable effect on Reeves are evidence from which a jury could find that CHRW subjected her to a discriminatory work environment because of her sex. See id. (“A working environment may be deeply hurtful to women even though the men who created it were merely trying to please themselves, and were thus guilty of insensitivity rather than aggression.”). II. An Employer Who Maintains A Sex-Based Hostile Work Environment, As Alleged By Reeves, Is Liable For Disparate Treatment Because Of Sex, In Violation Of Title VII. A sex-based hostile work environment, as alleged by Reeves – i.e., an environment permeated with conduct or material that is objectively more offensive to one sex than the other – subjects “‘members of one sex . . . to disadvantageous terms or conditions of employment to which members of the other sex are not exposed,’” Oncale, 523 U.S. at 80, 118 S.Ct. at 1002 (citation omitted), and thus states a claim for disparate treatment because of sex, in violation of 42 U.S.C. § 2000e-2(a)(1) (“It shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to [her] . . . terms [or] conditions . . . of employment, because of such individual’s . . . sex . . . .”). See Meritor, 477 U.S. at 64-65, 106 S.Ct. at 2404 (Title VII’s prohibition against “disparate treatment of men and women in employment” in section 2000e-2(a)(1) proscribes workplace “sexual misconduct” that “has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment”) (quotation marks and citations omitted) (emphases added). The standard approved by the Supreme Court to establish employer liability for coworker harassment confirms that Reeves’s claim is one of disparate treatment, rather than disparate impact. See Faragher v. City of Boca Raton, 524 U.S. 775, 799-800, 118 S.Ct. 2275, 2289 (1998) (noting broad “unanimity of views” among district and appellate courts “uniformly judging employer liability for co-worker harassment under a negligence standard”). Liability for a discriminatory work environment created by coworkers, as alleged by Reeves, is established directly (as opposed to vicariously) by showing the employer knew or should have known of the harassing conduct but failed to take prompt remedial action. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1278 (11th Cir. 2002) (“Where the perpetrator of the harassment is merely a co-employee of the victim, the employer will be held directly liable if it knew or should have known of the harassing conduct but failed to take prompt remedial action.”) (emphasis added). “Actual notice is established by proof that management knew of the harassment, whereas constructive notice will be found where the harassment was so severe and pervasive that management should have known of it.” Id. Significantly, CHRW has not asserted insufficient evidence to meet this standard as an alternative ground to sustain summary judgment, in effect conceding that a jury could find it was aware of the environment at the Birmingham office, either because Reeves complained repeatedly to the branch manager who oversaw office perations, or because the objectionable conduct was “so severe and pervasive that management should have known of it.” Id. In these circumstances, the Supreme Court has recognized, the employer’s “combined knowledge and inaction may be seen as demonstrable negligence, or as the employer’s adoption of the offending conduct and its results, quite as if they had been authorized affirmatively as the employer’s policy.” Faragher, 524 U.S. at 790, 118 S.Ct. at 2284. A policy of subjecting employees to a workplace permeated with derogatory slurs, conduct, or other material that is objectively more offensive to women – or to members of a particular racial, ethnic, or religious group – is plainly not a facially neutral employment practice that is “fair in form, but discriminatory in operation,” and justifiable as a “business necessity.” See Griggs v. Duke Power, 401 U.S. 424, 431, 91 S.Ct. 849, 853 (1973); see also 42 U.S.C. § 2000e-2(k). Reeves’s complaint therefore cannot be analyzed as a claim of disparate impact pursuant to 42 U.S.C. § 2000e-2(a)(2) and (k). Thus, whatever may have personally motivated Reeves’s male colleagues to suffuse the Birmingham branch office with anti-female epithets, crude jokes and songs, and sexually explicit discussions and radio broadcasts – and to persist in such behavior despite her repeated complaints and requests to stop – CHRW’s “combined knowledge and inaction may be seen as . . . [its] adoption of the offending conduct and its results, quite as if they had been authorized affirmatively as [company] policy.” Faragher, 524 U.S. at 790, 118 S.Ct. at 2284. Because much of this conduct, as the appellate panel concluded, “is more degrading to women than men,” Reeves, 525 F.3d at 1144, “[t]he motive behind the discrimination is not at issue because ‘[a]n employer could never have a legitimate reason’ for creating or permitting a hostile work environment,” see Quick v. Donaldson, 90 F.3d 1372, 1378-79 (8th Cir. 1996), for female employees. CONCLUSION Because Reeves has presented sufficient evidence that CHRW subjected her to disparate treatment because of her sex in her terms or conditions of employment, in violation of Title VII, the EEOC urges this Court to reverse the summary judgment and remand for trial on the merits. Respectfully submitted, /s/ Dori K. Bernstein JAMES L. LEE DORI K. BERNSTEIN Deputy General Counsel Attorney LORRAINE C. DAVIS U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITYCOMMISSION Office of General Counsel CAROLYN L. WHEELER 131 M Street, N.E., Room 5NW10R Assistant General Counsel Washington, D.C. 20507 (202)663-4734 Dori.Bernstein@EEOC.gov CERTIFICATE OF COMPLIANCE WITH F.R.A.P. RULE 32(a)(7) The undersigned, counsel of record for the plaintiff-appellant, Equal Employment Opportunity Commission, furnishes the following in compliance with Fed.R.App.P. 32(a)(7): I hereby certify that this brief conforms to the rules contained in Fed.R.App.P. 32(a)(7) for a brief produced with a proportionally spaced font. The length of this brief is 6,074 words. Dated: June 30, 2009 U.S. Equal Employment Opportunity Commission Office of General Counsel 131 M Street, N.E., Room 5NW10R Washington, D.C. 20507 /s/ Dori K. Bernstein Dori K. Bernstein Attorney for Amicus Curiae, EEOC (202)663-4734 Dori.Bernstein@EEOC.gov CERTIFICATE OF SERVICE I, Dori K. Bernstein, counsel for amicus curiae EEOC, certify that on June 30, 2009, the foregoing brief was transmitted electronically, and two copies were served by first class U.S. mail, to counsel of record, as follows: Douglas L. Micko Byron R. Perkins Schaefer Law Firm, LLC The Cochran Firm 1700 U.S. Bank Plaza South 505 North 20th Street, Suite 825 220 South Sixth Street Birmingham, Alabama 35203 Minneapolis, Minnesota 55402-4511 bperkins@cochranfirm.com dmicko@schaeferlaw.com Kell A. Simon Michael D. Lieder Ross Melton, P.C. Sprenger & Lang, PLLC 1104 San Antonio Street Suite 500 Austin, Texas 78701 1400 Eye Street, N.W. ksimon@rosslawpc.com Washington, D.C. 20005 mlieder@sprengerlang.com Margaret H. Campbell Ogletree, Deakins, Nash, Smoak & Stewart, P.C. One Federal Place, Suite 1000 1819 Fifth Avenue North Birmingham, Alabama 35203-2118 Margaret.campbell@ogletreedeakins.com /s/ Dori K. Bernstein Dori K. Bernstein, Attorney Equal Employment Opportunity Commission Office of General Counsel 131 M Street, N.E., Room 5NW10R Washington, D.C. 20507 (202)663-4734 Dori.Bernstein@eeoc.gov