_______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _______________________________________________________ No. 07-10233-FF _______________________________________________________ CECILIA THOMAS, Plaintiff-Appellant, v. COOPER LIGHTING, INC., Defendant-Appellee. _______________________________________________________ On Appeal from the United States District Court for the Middle District of Alabama (No. 2:06-cv-193) _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT AND IN FAVOR OF REVERSAL _______________________________________________________ RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ELIZABETH E. THERAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov CERTIFICATE OF INTERESTED PERSONS Pursuant to 11th Cir. R. 28-1, I certify that, to the best of my knowledge, the following is a complete list of the trial judges, attorneys, and all persons, associations of persons, firms, partnerships, and corporations having an interest in the outcome of this case that were not previously disclosed in the Plaintiff- Appellant's Principal Brief: Blackwood, Vincent J. (Assistant General Counsel for EEOC) Cooper, Ronald S. (General Counsel for EEOC) Davis, Lorraine C. (Acting Associate General Counsel for EEOC) Equal Employment Opportunity Commission (Amicus Curiae) Theran, Elizabeth E. (Counsel for EEOC) Pursuant to Fed. R. App. P. 26.1, the EEOC, as a government agency, need not file a corporate disclosure statement. ______________________________ ELIZABETH E. THERAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES ii STATEMENT OF INTEREST 1 STATEMENT OF THE ISSUE 2 STATEMENT OF THE CASE 2 A. Course of Proceedings 2 B. Statement of the Facts 3 C. District Court's Decision 7 SUMMARY OF ARGUMENT 9 ARGUMENT 11 THE DISTRICT COURT APPLIED TOO STRICT A STANDARD IN HOLDING THAT THE PLAINTIFF COULD NOT REASONABLY HAVE BELIEVED THAT SHE WAS COMPLAINING ABOUT A PRACTICE MADE UNLAWFUL BY TITLE VII AND, ACCORDINGLY, THAT THE DEFENDANT WAS FREE TO RETALIATE AGAINST HER FOR MAKING THAT COMPLAINT. 11 CONCLUSION 19 CERTIFICATE OF COMPLIANCE 20 CERTIFICATE OF SERVICE 21 TABLE OF AUTHORITIES CASES Baldwin v. Blue Cross/Blue Shield of Alabama, ___ F.3d ___, 2007 WL 805528 (11th Cir. Mar. 19, 2007) 18 Berman v. Orkin Exterminating Co., 160 F.3d 697 (11th Cir. 1998) 11 Burlington Northern & Santa Fe Railway Co. v. White, ___ U.S. ___, 126 S. Ct. 2405 (2006) 12-13 Clark County School District v. Breeden, 532 U.S. 268 (2001) 14-15 Gupta v. Florida Board of Regents, 212 F.3d 571 (11th Cir. 2000) 11, 18 Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385 (11th Cir. 1998) 8, 12, 15 & n.4 Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S. Ct. 367 (1993) 8, 16, 17 Lang v. Northwestern University, 472 F.3d 493 (7th Cir. 2006) 13-14 Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183 (11th Cir. 2001) 14, 16 Little v. United Technologies, 103 F.3d 956 (11th Cir. 1997) passim Mendoza v. Borden, Inc., 195 F.3d 1238 (11th Cir. 1999) passim Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S. Ct. 2399 (1986) 8 Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S. Ct. 998 (1998) 18 Sias v. City Demonstration Agency, 588 F.2d 692 (9th Cir. 1978) 12 STATUTES 31 U.S.C. § 3730(h) 13 Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. passim 42 U.S.C. § 2000e-3(a) 1, 11 RULES Fed. R. App. P. 26.1 C-1 Fed. R. App. P. 29(a) 1 Fed. R. App. P. 32(a)(5) 20 Fed. R. App. P. 32(a)(6) 20 Fed. R. App. P. 32(a)(7)(B) 20 11th Cir. R. 28-1 C-1 STATEMENT OF INTEREST The Equal Employment Opportunity Commission 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 appeal presents an important issue concerning the scope of Title VII's prohibition on retaliation against employees who complain about conduct made unlawful by the statute. In this case, the district court ruled that the plaintiff had not engaged in protected activity within the meaning of Title VII's anti-retaliation provision, 42 U.S.C. § 2000e-3(a), because the sexually harassing conduct of which she complained was "not close enough" in severity and pervasiveness to the standards established in the substantive case law to qualify as an unlawful employment practice under Title VII. In so doing, the district court not only misstated the legal standard for what constitutes a hostile work environment, but also applied too strict a standard in assessing whether the harassing conduct was of sufficient gravity to confer Title VII's protection on the plaintiff for complaining about it. Because resolution of this issue will affect the EEOC's enforcement of Title VII, the Commission offers its views to the Court pursuant to Fed. R. App. P. 29(a). STATEMENT OF THE ISSUE<1> Whether the district court erred by applying too strict a standard in holding that the plaintiff could not reasonably have believed that she was complaining about a practice made unlawful by Title VII when she complained to her employer about sexual harassment by her direct supervisor. STATEMENT OF THE CASE A. Course of Proceedings This is an appeal from a final judgment of the district court granting summary judgment and dismissing all of the plaintiff's claims. The plaintiff initiated this action by filing a complaint on March 1, 2006, alleging that the defendant violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., by subjecting her to a sexually hostile work environment and terminating her employment in retaliation for her complaining about that environment. R.1 (Complaint) at 2-3.<2> The district court granted summary judgment dismissing all of the plaintiff's claims on January 5, 2007. R.55, 56 (Memorandum Opinion and Order, Judgment). Plaintiff's timely appeal followed on January 16, 2007. R.57 (Notice of Appeal). B. Statement of the Facts Viewed in the light most favorable to the plaintiff, the nonmoving party below, the record reveals the following facts. Cecilia Thomas began working for Cooper Lighting in Eufaula, Alabama, as a temporary employee in November 2003. R.52-2 at 164. Throughout the period of Thomas's employment at Cooper Lighting, Eddie Cain was her supervisor, and Vickie Nolin was her line leader. R.37-5 at 3. Thomas testified that, before she started working at Cooper Lighting, her sister, Earlona Walker, who worked there, had warned her about Cain, telling her that she "had to watch out for him" because he "likes to come on to every woman that first come into that building." R.52-2 at 172-73. At least three current and former female employees of Cooper Lighting stated that Cain had made sexual remarks and advances to them. R.52-11, 52-12, 52-14. Shortly after Thomas began working at Cooper Lighting, Cain began making sexual advances and comments to her. R.52-2 at 167; R.37-5 at 3. Thomas testified that Cain was usually around her for a substantial part of every work day, unless he was on vacation. R.52-2 at 168, 356-57. The first specific incident Thomas identified occurred sometime between April and June of 2004, when she was standing on the line in the presence of at least one other coworker, and Cain told her that "he wanted to take me to his home, lay me down in my bed, touch me all over, til I started hollarin', and I'd have my head banging up against the headboard." R.52-2 at 181. Thomas testified that she was upset by Cain's remarks, and told Cain that she was going to report him to the human resources manager. Id.; R.37-5 at 3. Cain responded that "they were not going to listen to [her]" and that Thomas would "lose her job" if she complained. R.37-5 at 3. Thomas reported Cain's conduct to Nolin, but, to her knowledge, no action was ever taken. Id. Thomas testified that, after she rejected his advances, Cain "barked orders" at her all the time, that he did not bark orders at other employees, and that he raised his voice at her, and only her, "all the time." R.52-2 at 203-04. She also testified that Cain "kept saying" to her that she "should have gave in to him," and that she responded by cursing at him and telling him that she "didn't want to hear it." Id. at 312. Specifically, she related that, in the course of giving her work assignments, particularly undesirable ones, Cain would frequently tell her that she "should have gave in to me, and it wouldn't have been no problem." Id. at 314. Thomas and Nolin testified that Thomas frequently cried at work as a result of Cain's harassment, and that Thomas also left work early and took half days off on several occasions when she could no longer endure his treatment of her. Id. at 182, 211- 12; R.52-4 at 36-37, 57. Thomas also identified four other specific offensive remarks made by Cain sometime within the next year, three of which were corroborated by Shavone Young, a coworker who witnessed them. Two occurred as part of the same conversation when, referring to Thomas, Cain stated to Young, "Look at all that ass," and continued, "look Shavone, that's her children's swing set, them big ass drawers." R.52-13; R.52-2 at 191, 387-88. According to Thomas's deposition testimony, when she responded to Cain's remarks by asking him, "You talking about me that bad? Do you really, really want me to tell what you really said?," Cain "put somebody in [Thomas's] spot and had [her] to go all the way over there and work by myself packing frames." R.52-2 at 184, 191-92. From that point on, according to Thomas, Cain assigned her to a "floater" or "utility" position, where she would fill in on different jobs where the permanent employee was out, rather than a permanent position. Id. at 188-89, 192. Thomas testified that she complained repeatedly to Cain and to Michael Williams, her union representative, about her assignments to floater and utility positions, but nothing was done. Id. at 281. On another occasion, Thomas and Young both recalled, Cain remarked that Thomas's "breasts are too big." R.52-13; R.52-2 at 386-88. Finally, Thomas testified, closer to the time of her eventual termination in July of 2005, Cain told her, "Well, you wouldn't have had this problem if you would have gave into what I had told you in the beginning." R.52-2 at 196. In addition, Thomas testified that, sometime before April 2005, Cain had approached her in the break room while she was talking on her cell phone and said to her, "Cecilia, [y]ou know you're gone lose your job before I will." Id. at 287. On April 8, 2005, Thomas told Cain and Nolin that she was planning to report Cain for sexual harassment. R.37-5 at 3; R.52-2 at 259. Nolin and Cain spoke with James Davis in HR, and Davis sent Thomas home from work for the rest of the week without pay. R.52-2 at 264, 269. On the following Monday, April 11, Thomas met with Cain, Davis, and Williams and presented them with a written complaint that included a description of the "banging against the headboard" comment and the statement that "I would have not been a floater if Eddie Cain didn't say those rude sexual remarks to me."<3> Id. at 273, 280; R.52-17 (written complaint). Thomas testified that there was no discussion of her harassment complaint at the meeting, although there was some discussion of her complaints about her job assignments. R.52-2 at 278-79. According to Thomas, Davis talked to her about her "attitude," lectured her on her job responsibilities as a floater, asked her if she still wanted to work, and sent her out of the room. Id. Just under three months later, on July 7, 2005, Thomas was fired; the reason stated on her termination form was "excessive absenteeism." R. 52-19. On Thomas's termination form, Nolin checked "unsatisfactory" for every aspect of Thomas's performance, including attendance, cooperation, initiative, job knowledge, and quality of work. Id. However, at her deposition, Nolin testified that Thomas had a "knack" for assembly work and was able to "do any job on the assembly line." R.52-4 at 36, 39. Nolin admitted that her assessment of Thomas's job knowledge on her termination report was incorrect and that her assessment of Thomas's quality of work was "not truthful." Id. at 139-40. C. District Court's Decision With respect to the retaliation claim, the court began by observing that "a plaintiff's opposition to unlawfully discriminatory employment practices is protected by 42 U.S.C. § 2000e-3(a) if the plaintiff reasonably believes that unlawful discrimination took place." R.55 (Memorandum Opinion and Order) at 9. The court noted that "[t]he belief must be held in good faith and must also be objectively reasonable; however it need not be factually or legally correct." Id. at 9-10 (citing Little v. United Techs., 103 F.3d 956, 960 (11th Cir. 1997)). The court summarized the evidence relevant to Thomas's complaint as follows: the statements in her EEOC charge about Cain's "need[ing her] to take [her] clothes off and have [her] head banging up against the headboard of [his] bed," her threat to report him to HR, and his reply that HR would not listen to her and that she would lose her job; and the three statements in Young's affidavit about Thomas's breasts being too big, her underclothes being her children's swing set, and "look at all that ass." R.55 at 11. According to the court, "three of the four remarks occurred on a single day and the plaintiff could not remember when the fourth occurred." Id. The court ruled that, accepting this evidence as true, "it is possible that she subjectively believed, in good faith, that [Cain] committed unlawful sexual harassment." Id. The court then went on to consider whether Thomas's charge of sexual harassment was "objectively reasonable." R.55 at 12. According to the court, "[i]n determining whether a charge of discrimination is objectively reasonable, the court refers to and assumes knowledge of existing substantive law." Id. (citing Harper v. Blockbuster Entm't Corp., 139 F.3d 1385, 1388-89 & n.2 (11th Cir. 1998)). According to the district court, because the remarks at issue do not "include any threat or offer to take tangible employment actions if sexual favors are refused or granted," the court was required to examine them to determine whether they were "so severe and pervasive as to alter the terms and conditions of employment explicitly." Id. (emphasis added) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370 (1993); Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67, 106 S. Ct. 2399, 2405 (1986); and Mendoza v. Borden, Inc., 195 F.3d 1238, 1245-46 (11th Cir. 1999) (en banc)). The court then observed that "the incidents, if they occurred at all, were four in number and occurred on two days." Id. Moreover, the court noted, "[t]hree of these remarks, while crude and anatomical, did not refer to sexual intercourse, . . . and the plaintiff has offered no evidence that Cain repeated his single proposition after she refused and threatened to report him." Id. at 13. Finally, the court observed, "[a]ll four incidents were objectively rude rather than threatening or humiliating." Id. Thus, the court concluded, "the conduct described by the plaintiff was not close enough to the standards for sexual harassment to make her complaint 'objectively reasonable,'" and therefore "the plaintiff's complaint of sexual harassment was not protected conduct under Title VII." Id. SUMMARY OF ARGUMENT The district court erred by applying too strict a standard in holding that the plaintiff could not reasonably have believed that she was complaining about a practice made unlawful by Title VII when she complained to her employer about sexual harassment by her direct supervisor. In order to claim protection against retaliation under the "opposition clause" of section 704(a) of Title VII, an employee is only required to show that she had a reasonable belief that a practice made unlawful by Title VII was occurring, not that the practice in question was in fact unlawful. This requirement is consistent with the broad remedial purpose of Title VII's antiretaliation provision, and helps to ensure that employees will feel free to approach their employers with information about violations of the statute. In this case, where the plaintiff was complaining about sex-based harassment, the district court erred in holding that the plaintiff failed to show that her belief that she was being sexually harassed was "objectively reasonable" because the conduct of which she complained did not sufficiently approximate the legal standard for an actionable hostile work environment. When the facts in the record are viewed in light of the totality of the circumstances, and in the light most favorable to the plaintiff, the conduct alleged by the plaintiff was more than adequate to support a reasonable belief that she was being subjected to a hostile work environment in violation of Title VII. Accordingly, the plaintiff should have been protected under § 704(a) from retaliation on the basis of her complaint about that environment. ARGUMENT THE DISTRICT COURT APPLIED TOO STRICT A STANDARD IN HOLDING THAT THE PLAINTIFF COULD NOT REASONABLY HAVE BELIEVED THAT SHE WAS COMPLAINING ABOUT A PRACTICE MADE UNLAWFUL BY TITLE VII AND, ACCORDINGLY, THAT THE DEFENDANT WAS FREE TO RETALIATE AGAINST HER FOR MAKING THAT COMPLAINT. Section 704(a) of Title VII makes it unlawful for an employer to discriminate against an employee because the employee "has opposed any practice made an unlawful employment practice" by the statute. 42 U.S.C. § 2000e-3(a). Thomas alleges that she is protected by this provision because she reasonably believed that the conduct of which she complained violated Title VII. This Court has held that, in order to state a claim under this provision, "the plaintiff need only show that he had a 'reasonable belief' that an unlawful employment practice was occurring, and is not required to show that the employer actually engaged in an unlawful employment practice." Berman v. Orkin Exterminating Co., 160 F.3d 697, 702 (11th Cir. 1998); see also Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 586 (11th Cir. 2000). As this Court stated in Little: A plaintiff [] need not prove the underlying discriminatory conduct that he opposed was actually unlawful in order to . . . overcome a motion for summary judgment; such a requirement "[w]ould not only chill the legitimate assertion of employee rights under Title VII but would tend to force employees to file formal charges rather than seek conciliation o[r] informal adjustment of grievances." 103 F.3d at 960 (quoting Sias v. City Demonstration Agcy., 588 F.2d 692, 695 (9th Cir. 1978)). The district court here, after observing that "it is possible that [Thomas] subjectively believed, in good faith," that Cain's conduct constituted unlawful sexual harassment, concluded that she was not protected from retaliation because any such belief was not "objectively reasonable." In reaching this conclusion, the court first noted this Court's holding that, in assessing the objective reasonableness of a plaintiff's belief, a court "refers to and assumes knowledge of existing substantive law." R.55 at 12 (citing Harper, 139 F.3d at 1388-89 & n.2). The court then analyzed the evidence in this case against the standard applied by the courts in deciding whether summary judgment should be awarded on the merits of a hostile work environment claim, and found that it was "not close enough" to render her good faith belief that a violation occurred "objectively reasonable." The standard applied by the district court in this case is unduly narrow, and, if affirmed, would undermine Title VII's protection against retaliation. As the Supreme Court recently observed, "effective enforcement [of Title VII] could . . . only be expected if employees felt free to approach officials with their grievances. . . . Interpreting the anti-retaliation provision to provide broad protection from retaliation helps assure the cooperation upon which accomplishment of the Act's primary objective depends." Burlington N. & Santa Fe Ry. Co. v. White, ___ U.S. ___, 126 S. Ct. 2405, 2414 (2006) (internal citation and quotation marks omitted). The approach that the district court took here - requiring that the harassing conduct at issue closely approximate the standard for independently actionable sexual harassment in order for the plaintiff's belief that she had been harassed to be "objectively reasonable" - substantially undercuts the remedial purpose of § 704(a) and contravenes the law of this Court. This Court has indeed held that a plaintiff's belief that she has opposed prohibited conduct under Title VII must be both subjectively and objectively reasonable. See Little, 103 F.3d at 960 (observing that it "is not enough for a plaintiff to allege that his belief in this regard was honest and bona fide; the allegations and record must also indicate that the belief, though perhaps mistaken, was objectively reasonable"). However, the purpose of the requirement that a plaintiff's sincerely held belief in her complaint be objectively reasonable is not to hold that conduct to the same standard as an independent discrimination claim, but, rather, simply to ensure that it has some grounding in reality. As one court has put it, "people believe the most fantastic things in perfect good faith; a kind heart but empty head is not enough." Lang v. Northwestern Univ., 472 F.3d 493, 495 (7th Cir. 2006) (discussing antiretaliation provision of False Claims Act, 31 U.S.C. § 3730(h)); see also id. ("Other anti-retaliation statutes, such as the one in Title VII of the Civil Rights Act of 1964, . . . also are limited to the protection of objectively reasonable reports and do not prevent employers from discharging workers who enter fantastic realms."). So long as the conduct of which the plaintiff is complaining is objectively consistent with that deemed to be unlawful in the case law generally, the objective prong of the standard is met. In this case, where Thomas complained of multiple incidents of explicitly sexual and crude sex-based anatomical remarks and assignment to inferior work tasks after her refusal to comply with her supervisor's initial sexual proposition, it was objectively reasonable for her to believe that this conduct constituted sexual harassment. See, e.g., Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183, 1189 (11th Cir. 2001) (deeming it "important" to the issue of the plaintiff's reasonable belief that she had been sexually harassed that the harasser's conduct towards her involved sexual solicitation because "[u]nless there is evidence to the contrary, . . . we also infer that the harasser treats members of the 'non-preferred' gender differently - and thus that the harasser harbors an impermissible discriminatory animus towards persons of the preferred gender") (alterations in original) (internal citation omitted); Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001) (no objectively reasonable belief in existence of sexually hostile work environment based on a single incident involving coworkers' discussion of a sexual remark that was not targeted at the plaintiff, that was part of an applicant file she was required to review in the course of her job, along with the rest of her coworkers, and that she conceded "did not bother or upset her"). For this reason, Harper, the case relied on by the district court for the proposition that plaintiffs in a retaliation case are presumed to have "knowledge of existing substantive law," is both distinguishable and profoundly different from this case.<4> In Harper, this Court held that the plaintiffs' actions in opposing their employer's grooming policy, which prohibited men, but not women, from wearing long hair, were not protected activity under § 704(a) because "the reasonableness of the plaintiffs' belief in this case is belied by the unanimity with which the courts have declared grooming policies like Blockbuster's non-discriminatory." 139 F.3d at 1388. Accordingly, this Court concluded, in light of the plaintiffs' "[choice] to protest [the] grooming policy despite the existence of long-standing binding precedent holding that such a policy was not discriminatory," the plaintiffs "could not have had an objectively reasonable belief that Blockbuster's grooming policy discriminated against them on the basis of their sex." Id. at 1389. The question of whether sexual harassment rises to the level of a hostile work environment is, however, fundamentally different from the question at issue in Harper. There is no such clear mandate in the case law as to the precise quantum of evidence required to establish an actionable hostile work environment; rather, it is axiomatic in this area of law that this inquiry must be undertaken on a case-by-case basis, in light of the totality of the circumstances. E.g., Harris, 510 U.S. at 22-23, 114 S. Ct. at 371 (observing that the issue of whether a hostile work environment exists "is not, and by its nature cannot be, a mathematically precise test. . . . But we can say that whether an environment is 'hostile' or 'abusive' can be determined only by looking at all the circumstances."); Mendoza, 195 F.3d at 1246 (observing 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") (internal citations and quotation marks omitted). Indeed, as this Court has observed, in a case where "reasonable minds could disagree on [whether the plaintiff had a good-faith reasonable belief that she was the victim of sexual harassment]," this issue is "an inappropriate candidate for judgment as a matter of law." Lipphardt, 267 F.3d at 1188. Thus, while it may be appropriate to look to the substantive law in evaluating what kinds of conduct objectively may be considered unlawful, it undermines the purpose of Title VII's antiretaliation provision to require a plaintiff to know, fully comprehend, and approximate the complicated legal standard for what constitutes an actionable hostile work environment in order to establish her objectively reasonable belief that the harassment she was complaining about was "close enough" to this standard to warrant protection. We note, moreover, that the district court itself misstated the standard for a hostile work environment articulated by the Supreme Court in Harris - the actions in question need not be both "severe and pervasive," as the district court stated, but rather sufficiently "severe or pervasive" as to alter the terms and conditions of the plaintiff's employment. See, e.g., Harris, 510 U.S. at 21, 114 S. Ct. at 370; Mendoza, 195 F.3d at 1245. Thus, insofar as the district court faulted the plaintiff for failing to establish that the conduct at issue was "severe and pervasive," R.55 at 12, the district court clearly erred as a matter of law. Finally, we note that the district court appears to have failed to consider all of the facts in the record and to have significantly misunderstood the import of the facts before it. The evidence in the record reflects that the incidents here were far more than four in number and occurred over a period of a year or more, and that they included not only the sexual remarks in question but also evidence that Cain assigned Thomas inferior job tasks and isolated her from coworkers because she refused to accede to his sexual demands. We also note that there is no requirement in the law that remarks must refer specifically to "sexual intercourse," as the district court suggested, in order to constitute sexual harassment; crude anatomical references or other gender-related remarks may certainly form a part of a sexually hostile work environment. See, e.g., Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80-81, 118 S. Ct. 998, 1002 (1998) (observing that "[a] trier of fact might reasonably find [sexual harassment], for example, if a female victim is harassed in such sex-specific and derogatory terms . . . as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace"); Gupta, 212 F.3d at 583 (observing that "the statements and conduct must be of a sexual or gender-related nature - 'sexual advances, requests for sexual favors, [or] conduct of a sexual nature' . . . before they are considered in determining whether the severe or pervasive requirement is met.") (alterations in original) (quoting Mendoza, 195 F.3d at 1245) (emphasis added); Baldwin v. Blue Cross/Blue Shield of Ala., ___ F.3d ___, 2007 WL 805528, at *11 (11th Cir. Mar. 19, 2007) (observing that "sex specific" profanity and swear words such as "bitch," "slut," and "tramp" "may be considered, for whatever weight they have, on the sexual harassment scales"). When the entire course of the conduct at issue here is viewed in light of the totality of the circumstances, it was objectively reasonable for Thomas, as a lay person, to believe that Cain's treatment of her constituted sexual harassment under Title VII. Therefore, her complaint to her employer about that conduct is protected under § 704(a). CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings. Respectfully submitted, RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ______________________________ ELIZABETH E. THERAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 4,461 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. _________________________ Elizabeth E. Theran Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov Dated: April 10, 2007 CERTIFICATE OF SERVICE I, Elizabeth E. Theran, hereby certify that I filed one original and six hard copies of the foregoing brief with this Court this 10th day of April, 2007, by first- class mail, postage pre-paid. I also certify that I served one copy of the foregoing brief this 10th day of April, 2007, by first-class mail, postage pre-paid, to the following counsel of record: Counsel for Plaintiff-Appellant: Jerry D. Roberson, Esq. P.O. Box 380487 Birmingham, AL 35238-0487 (205) 981-3906 Counsel for Defendant-Appellee: Matthew Alexander Freeman, Esq. Jackson Lewis LLP 245 Peachtree Center Ave. NE, Ste. 1900 Atlanta, GA 30303-1226 (404) 525-8200 _________________________ Elizabeth E. Theran Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov *********************************************************************** <> <1> We take no position with respect to any other issue presented in this appeal. <2> Citations to the record proper are abbreviated "R." and refer to the district court docket entry number. Pincites refer to the internal pagination of the document (e.g., deposition transcript pages or affidavit pages), not PACER pagination, except where the document in question is otherwise unpaginated. <3> Cain and Williams stated that Thomas told them at some time before the April 11 meeting that she had changed her mind and did not want to complain about harassment. R.37-18 at 6; R.37-31 at 5. However, Thomas never conceded that she withdrew, or sought to withdraw, her complaint, and it is undisputed that she did in fact submit a written complaint of sexual harassment to Cain, Davis, and Williams on April 11. R.52-2 at 268, 275-78; R.52-17. <4> Although the Harper decision cites Little, a hostile work environment case, for the same proposition, it is striking to note that this Court in Little did not hold that it was appropriate in that context to "charge" a plaintiff with full knowledge of the substantive case law. Rather, Little simply held that, "based on the particularized facts of this case, Little did not have an objectively reasonable belief that he was opposing an unlawful employment practice." 103 F.3d at 960.