Monica Hesse and Dan Zak, Violence. Threats. Begging. Harvey Weinstein's 30-year Pattern of Abuse in Hollywood, Wash. Post, Oct. 14, 2017, at https://www.washingtonpost.com/lifestyle/style/violence-threats-begging-harvey-weinsteins-30-year-pattern-of-abuse-in-hollywood/2017/10/14/2638b1fc-aeab-11e7-be94-fabb0f1e9ffb_story.html?utm_term=.c1e796b49076; Michelle Cottle, Capitol Hill's Sexual Harassment Problem: Congress has all the Necessary Elements for a Perfect Storm of Predation, The Atlantic, Nov. 3, 2017, at https://www.theatlantic.com/politics/archive/2017/11/capitol-hills-sexual-harassment-problem/544946/; Erik Ortiz and Corky Siemaszko, NBC News Fires Matt Lauer after Sexual Misconduct Review, NBC News, Nov. 30, 2017, at https://www.nbcnews.com/storyline/sexual-misconduct/nbc-news-fires-today-anchor-matt-lauer-after-sexual-misconduct-n824831; Susan Chira and Catrin Einhorn, How Tough is it to Change a Culture of Harassment? Ask Women at Ford, N.Y.Times, Dec. 19, 2017, at https://www.nytimes.com/interactive/2017/12/19/us/ford-chicago-sexual-harassment.html?_r=2&mtrref=www.autonews.com; Pete Wells, Scandals Keep Breaking, but Restauranteurs Have Yet to Own Up, N.Y.Times, Jan. 2, 2018, at https://www.nytimes.com/2018/01/02/dining/sexual-harassment-restaurants.html; Editors, Science Suffers from Harassment, Scientific American, Jan. 24, 2018, at https://www.scientificamerican.com/article/science-suffers-from-harassment/.

42 U.S.C. § 2000e-2(a)(1) ("It shall be an unlawful employment practice for an employer and that was reflected in EEOC guidance.¹⁴⁹ Rather, the Court in Vance concluded that "the defining characteristic of a supervisor" is the authority to take a tangible employment action.¹⁵⁰ In the Court's view, its definition of supervisor was a clear, readily workable standard that would, in "a great many cases," be known to the litigants even before litigation commenced.¹⁵¹

The Court in Vance also pointed out that an employer would still be subject to liability for harassment by employees not considered supervisors under its definition if the employer's negligence led to the hostile work environment.¹⁵² The Court described the negligence standard as providing sufficient protection for employees harassed by an individual who, while not a supervisor, could assign them unpleasant tasks or alter their work environment.¹⁵³

Since Vance, federal courts have regularly encountered cases where a harasser has significant authority over the plaintiff but fails to qualify as a supervisor under the Supreme Court's rule.¹⁵⁴ Panels sometimes come to seemingly inconsistent decisions about how to apply Vance to cases involving delegated authority—where an employer relies on a harasser's recommendations to take actions relating to the plaintiff and other employees. For example, in Kramer v. Wasatch County Sheriff's Office, the Tenth Circuit held that a sergeant in a sheriff's office was the plaintiff's supervisor, as evidence reflected that the defendant employer relied on recommendations from sergeants like him to decide whether to fire, promote, demote, reassign, and discipline, and the evidence also showed that the sergeant wrote the plaintiff's performance evaluations.¹⁵⁵

In EEOC v. AutoZone, Inc.,¹⁵⁶ a Sixth Circuit panel (in an unpublished decision) came to a different conclusion. It held that the alleged harasser, a store manager, was not the supervisor of employees at the store he managed¹⁵⁷ even though he could initiate disciplinary proceedings, hire hourly employees, and make recommendations to the district manager concerning employees' demotions or promotions. The court held the store manager was not the victims' supervisor under Vance because he did not have the authority to "fire, demote, promote, or transfer any employees."¹⁵⁸ The court concluded that the harasser's "ability to influence [the decisionmaker] does not suffice to turn [him] into his victims' supervisor."¹⁵⁹ Moreover, though the evidence showed that the harasser could hire hourly employees, the court concluded that this was immaterial to the analysis of whether he constituted the victims' supervisor, as he "could not and did not hire the employees he harassed, and that's what matters under Vance."¹⁶⁰

Some circuits have separately held that a harasser is a supervisor when the individual has the authority to make decisions indirectly affecting an employee's pay and hours.¹⁶¹ This may be the case, for example, if a supervisor eliminates overtime work.¹⁶² In contrast to delegated authority, another circuit has recognized "apparent" authority—that is, that employees, including the plaintiff, reasonably believe that a harasser is a supervisor—as a basis for attaching supervisory status to a harasser for Title VII purposes.¹⁶³

Not every claim of workplace harassment is cognizable under Title VII. As harassment claims arise out of Title VII's antidiscrimination provision, harassment under Title VII must be "because of [an] individual's race, color, religion, sex, or national origin."¹⁶⁴ Plaintiffs can sometimes struggle to show that an instance of harassment was "because of" the plaintiff's protected characteristic. This situation is especially common when the harasser and the victim share the same sex. In its 1998 decision in Oncale v. Sundowner Offshore Services, Inc., the Supreme Court held that Title VII claims alleging harassment by a member of the same sex are viable so long as the evidence shows that such harassment "meets the statutory requirements" ¹⁶⁵—that is, that the harassment occurred "because of [an] individual's race, color, religion, sex, or national origin."¹⁶⁶

Although the Court recognized the viability of Title VII claims alleging same-sex harassment in Oncale, it stated that such cases face a distinctive challenge in proving that the harassment occurred because of the plaintiff's sex. In the typical sexual harassment case, the Court explained there is often little difficulty in making this showing, as "the challenged conduct typically involves explicit or implicit proposals of sexual activity it is reasonable to assume those proposals would not have been made to someone of the same sex."¹⁷¹ In same-sex harassment cases, the Court suggested three "routes" by which a plaintiff could prove that the harassing conduct was because of the plaintiff's sex: (1) "credible evidence" that the harasser was homosexual or motivated by sexual desire; (2) evidence that the harasser used "sex-specific and derogatory terms" reflecting the harasser's general hostility toward individuals of a particular sex; or (3) comparative evidence about how a harasser treats members of both sexes to show a hostility toward one sex or the other.¹⁷²

The Court in Oncale also explained that, much like the analysis of whether harassment is objectively "severe or pervasive," evaluating whether same-sex harassment occurred because of the plaintiff's sex turns on a "careful consideration of the social context in which particular behavior occurs."¹⁷³ As the "real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships," the Court said that "[c]ommon sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive."¹⁷⁴

Oncale provided important guidelines to lower courts. The first and the third evidentiary routes Oncale suggested appear to be the most common routes pursued by plaintiffs seeking to establish same-sex harassment claims.¹⁷⁵ One commentator, looking at 105 same-sex harassment cases, found that 40 used the first evidentiary route, while 25 utilized the third route.¹⁷⁶ In four cases, the plaintiff relied on the second, "general hostility" route.¹⁷⁷ Lower courts have also generally held that the three routes suggested in Oncale are not exclusive, allowing plaintiffs pursuing same-sex harassment claims some flexibility in showing that the harassment was because of sex.¹⁷⁸

Some cases illlustrate how the Oncale evidentiary routes are applied in practice. For example, in Cherry v. Shaw Coastal, the Fifth Circuit addressed a case involving the first Oncale route—evidence of homosexuality or sexual desire—in which the plaintiff, a male employee, alleged that he faced a series of harassing comments and behavior from his male supervisor, including text messages suggesting sexual attraction and inappropriate touching.¹⁷⁹ Here, the court found "more than sufficient evidence to support the conclusion" that the supervisor's conduct was "sexual in nature."¹⁸⁰ The third Oncale route—evidence that the harasser treated members of one sex differently from another—was at issue in Chavez v. Thomas & Betts Corp., where the Tenth Circuit affirmed a jury verdict finding actionable sexual harassment.¹⁸¹ In that case, the plaintiff, a woman, alleged that her female supervisor had harassed her by "target[ing] her as a woman and repeatedly humiliat[ing] her in front of men in the workplace" through humiliating comments about her "body parts" and exposing her underwear to her coworkers, without engaging in any similarly abusive conduct toward men in the workplace.¹⁸² The court concluded that this differential treatment was enough for a reasonable jury to conclude that the plaintiff was harassed because of her sex.¹⁸³

Difficulty may arise when the plaintiff's evidence does not demonstrate either sexual desire or differential treatment, but the harassment is nonetheless sexualized in nature. In one such case, the Sixth Circuit affirmed a grant of summary judgment for the defendant when the plaintiff, a woman, alleged that her female supervisor called herself the "bitch in charge," exposed her breasts, made a vulgar comment and gesture toward the plaintiff's breasts, and repeatedly suggested that the plaintiff did not wear underwear.¹⁸⁴ While the court acknowledged that the conduct was "unacceptable in a work environment," it concluded that the plaintiff had failed to show that the conduct was motivated by her sex, either in terms of the supervisor's general hostility toward women or the supervisor's sexual desire.¹⁸⁵ Some courts have distinguished between sexualized bullying by members of the same sex and harassment "because of" sex,¹⁸⁶ yet the precise line between these two appears to remain unclear.

Some same-sex harassment cases, beyond using the routes suggested in Oncale, have succeeded by showing that the plaintiff was harassed for failing to conform to gender stereotypes. In Price Waterhouse v. Hopkins—a case involving a woman who argued that she was denied partnership at an accounting firm because she was considered insufficiently feminine—the Supreme Court, in a plurality opinion that has generally been accepted by lower courts,¹⁸⁷ held that sex discrimination under Title VII could occur when an employer discriminates on the basis of the employee's failure to fit within a sex-based stereotype.¹⁸⁸ Combining the reasoning of that case with Oncale, some courts have concluded that harassment on the basis of sex can occur when the plaintiff can show that the harassment resulted from a failure to conform to sex-based stereotypes. For example, in EEOC v. Boh Brothers Construction Co., LLC, a same-sex harassment case involving men at a construction site, the Fifth Circuit held that the evidence was sufficient to demonstrate that the alleged harassment was because of the victim's "sex" based on the plaintiff's nonconformity to male sex stereotypes.¹⁸⁹ There, the plaintiff provided evidence that the supervisor thought the victim was not a "manly-enough man" and that he used a number of feminine sex-based epithets to refer to the plaintiff.¹⁹⁰

The Supreme Court ruled in Bostock v. Clayton County that Title VII's prohibition on discrimination "because of . . . sex" forbids employers from making employment decisions because of an employee's sexual orientation or gender identity. In reaching that conclusion, the Court focused on the statutory text, which, the Court held, implemented a "but for" causation standard. The Court reasoned that because discrimination based on sexual orientation or gender identity necessarily involves consideration of an individual's sex, such actions are unlawful under Title VII. "An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex," the Court held.¹⁹¹ In other words, an employer who fires a male employee because he dates men acts because of the employee's sex. If the same employee were female, the employer would not have fired her for dating men. Similarly, an employer who fires a man who identifies as a woman acts because of that plaintiff's sex; the employer would not fire a woman who identified as a woman.¹⁹²

Bostock considered claims from employees who faced adverse employment actions. It did not address harassment or explain how its interpretation of sex discrimination under Title VII might apply to harassment claims. Nevertheless, the case has appeared to authorize employees to bring harassment claims when they are discriminated against because of their sexual orientation or gender identity, and courts have adjudicated such claims. As the Fifth Circuit stated, however, "the Court expanded the groups of individuals protected by Title VII" in Bostock but "in no way altered the preexisting legal standard for sexual harassment."¹⁹³

Accordingly, courts assessing such claims have considered issues such as the frequency and severity of the mistreatment, as is common in sexual harassment cases, even as they face novel fact patterns. For example, the Sixth Circuit rejected an employee's harassment suit based on claims that coworkers sent him Bible verses after he came out as gay and gave him gifts such as pink nail polish.¹⁹⁴ These actions "could be seen as targeting his sexual orientation," the court acknowledged,¹⁹⁵ but comparing his situation with fact patterns in other sexual harassment cases, the court found that the treatment was not severe or pervasive. Similarly, another Sixth Circuit panel found that an employer mistreated an employee because of his sexual orientation by directing him to act more masculine (removing body piercings and changing his hairstyle) and to take down his relationship status on Facebook (showing he was dating a man),¹⁹⁶ but these isolated actions did not create a hostile work environment in the court's view.¹⁹⁷

In contrast, the Eleventh Circuit in Copeland v. Georgia Department of Corrections reversed a district court and concluded that a jury could find that a transgender prison guard endured severe or pervasive harassment.¹⁹⁸ The court pointed to allegations that staff and supervisors consistently laughed at and taunted the plaintiff and called him "ma'am" on the prison-wide radio system. This happened daily, three or four times a day, according to the plaintiff.¹⁹⁹ Coworkers also called the plaintiff "that" and "it" and speculated over whether he had a "dildo" in "her" pants.²⁰⁰ At times, coworkers pushed him or blocked his way. The plaintiff identified 34 coworkers who participated in this behavior. They joked about him in front of inmates, who joined in.²⁰¹ This treatment, the court concluded, could qualify as pervasive.²⁰² A factfinder could also find this mistreatment severe, the court concluded, given that supervisors participated and considering the context: work in a correctional institution. Harassing the plaintiff in this environment, the court opined, "sends the message to coworkers that the victim need not receive the support and cooperation necessary to remain safe. It sends the message to inmates that the victim is fair game."²⁰³

Bostock also reaffirmed that Title VII allows claims based on failure to conform to sex stereotypes, and courts have applied this understanding in harassment cases involving perceived sexual orientation.²⁰⁴ For example, in Roberts v. Glenn Industries Group, the Fourth Circuit relied on Bostock to allow a worker to sue for harassment by a supervisor who perceived him as gay.²⁰⁵ The supervisor called the worker "gay," asked him "how much dicks [he] would suck for money," and physically assaulted him.²⁰⁶ "Bostock makes clear that a plaintiff may prove that same-sex harassment is based on sex where the plaintiff was perceived as not conforming to traditional male stereotypes," the court explained.²⁰⁷

Harassment cases based on gender identity and sexual orientation continue to present new fact patterns. The Court in Bostock expressly declined to "address bathrooms, locker rooms, or anything else of the kind."²⁰⁸ The decision therefore did not give much guidance on whether a Title VII harassment claim is available when transgender employees allege discrimination in same-sex spaces, or what such a claim might look like. Bostock did not make clear whether refusing to use an employee's preferred name or pronoun is harassment or whether it can contribute to a hostile environment. Bostock also did not address the potential intersection of employer and employee religious rights and discrimination claims based on sexual orientation and gender identity.²⁰⁹ It remains to be seen how such issues may be addressed by courts in the future.

Sexual harassment includes all harassment based on sex. Mistreatment need not take the form of unwanted sexual advances or other sexual conduct.²¹⁰ Instead, demonstrations of "'anti-female animus' can support a sexual harassment claim based on a hostile work environment."²¹¹ As the Eighth Circuit observed, "intimidation and hostility toward women because they are women can obviously result from conduct other than explicit sexual advances."²¹² This type of hostile environment is one that "is hostile because it is 'sexist rather than sexual.'"²¹³

Such harassment might include expressions of hostility toward women in the workplace, targeting a worker for discipline or humiliation on account of her sex, or shows of physical aggression.²¹⁴ In one case, the Eighth Circuit concluded that plaintiffs could show a hostile environment after pointing to a "plethora of offensive incidents," including a male worker urinating in a female worker's water bottle and several men urinating in another woman's gas tank.²¹⁵

A sexist hostile environment may also take the form of frequent gender-specific epithets. For example, as the Seventh Circuit observed, "repeated use of the word 'bitch' to demean a female employee could support a claim of sexual harassment if it was sufficiently pervasive or severe and if the context showed a hostility to the plaintiff because she was a woman."²¹⁶ The court in that case concluded that name-calling alleged by the plaintiff supported a claim of hostile environment because her supervisor used the insult not "in jest" but "together with his threats against [her] employment."²¹⁷ Sexist behavior must still be severe or pervasive to qualify as harassment.²¹⁸

Title VII also protects against discrimination in employment based on pregnancy and, accordingly, harassment based on pregnancy. In 1978, the Pregnancy Discrimination Act²¹⁹ specified that pregnancy and related medical conditions fall under Title VII's protections against sex discrimination. Courts have recognized pregnancy harassment, such as managers urging pregnant workers to quit²²⁰ or to terminate a pregnancy,²²¹ can give rise to Title VII claims.²²²

Though Title VII sexual harassment claims are often raised as "hostile work environment" claims, a Title VII violation can also be established with evidence of quid pro quo harassment.²²³ Quid pro quo harassment occurs when a supervisor takes a "tangible employment action" against an employee (such as firing the employee or denying her a promotion)²²⁴ in relation to the supervisor's sexual demands.²²⁵ Though some federal appellate courts require a plaintiff to show a tangible employment action resulting from his or her refusal to submit to demands for sexual conduct,²²⁶ other federal appellate courts will also accept a showing that an employee submitted to unwelcome advances to avoid losing job benefits.²²⁷ In some cases, an employee submits to unwanted advances and, when he or she later refuses sexual favors, faces punishment or loss of privileges. In such cases, the change in terms or conditions of employment after a worker refuses sex shows the quid pro quo.²²⁸ Still other federal appellate courts have appeared to acknowledge the possibility of quid pro quo claims under Title VII where the plaintiff submits to a supervisor's sexual demands, but without expressly holding that such claims are cognizable.²²⁹ The Supreme Court has not addressed this issue.²³⁰

If evidence shows that a tangible employment action occurred, a plaintiff alleging quid pro quo harassment need not also establish that the harassment was sufficiently "severe or pervasive" to alter the conditions of her employment;²³¹ in other words, the legal standard applied to hostile work environment claims does not apply to quid pro quo claims. As the Supreme Court explained in Ellerth, the tangible employment action resulting from an employee's refusal to submit to a supervisor's sexual demands itself explicitly alters the terms and conditions of the plaintiff's employment.²³² Without evidence of a tangible employment action, however, courts will generally analyze the claim as alleging a "hostile work environment,"²³³ and will thus, in that analysis, require a showing that the harassment was "severe or pervasive" enough to constitute a Title VII violation.

Just as an employer is strictly liable for supervisory harassment that results in a tangible employment action, federal courts generally hold that an employer is strictly liable for quid pro quo harassment.²³⁴

Rather than firing an employee, an employer may compel the employee to resign, for example, by creating intolerable working conditions. This scenario is known as a "constructive discharge."²³⁵ In its 2004 decision in Pennsylvania State Police v. Suders, the Supreme Court recognized a constructive discharge claim under Title VII in a case involving a woman who sued her former employer, the state police, alleging sexual harassment by her supervisors so intolerable that she was forced to resign.²³⁶ The allegations in Suders included that the plaintiff's supervisors brought up inappropriate subjects, routinely grabbed their genitals, belittled and intimidated her, and had her wrongly arrested for the theft of a set of job-required examinations.²³⁷ The questions presented to the Supreme Court were (1) whether the plaintiff could bring a claim for constructive discharge in the first instance; and (2) if constructive discharge was a viable Title VII claim, whether a defendant could raise the Ellerth/Faragher affirmative defense.²³⁸

On the first question, the Court held that constructive discharge in sexual harassment cases is a valid claim, one that can be characterized as an "aggravated case" of sexual harassment or a hostile work environment.²³⁹ According to the Court in Suders, a plaintiff bringing a constructive discharge claim must "show working conditions so intolerable that a reasonable person would have felt compelled to resign."²⁴⁰ The claim is of the "same genre" as hostile work environment claims generally but is a "'worse case' harassment scenario, harassment ratcheted up to the breaking point."²⁴¹ As with the "severe or pervasive" standard, the application of this standard depends on the facts of each case.²⁴² The Court held that the plaintiff in Suders had presented sufficient evidence to go to a jury on her claim of constructive discharge.²⁴³

Federal courts, applying Suders, generally agree that the conduct involved in a constructive discharge case must be worse than what would suffice to show "severe or pervasive" harassment.²⁴⁴ In other words, if a plaintiff cannot show actionable harassment, the plaintiff's constructive discharge claim must fail as well.²⁴⁵ Relatedly, it is possible to establish "severe or pervasive" harassment without reaching the level necessary to show a constructive discharge.²⁴⁶

The second question before the Court in Suders was whether an employer could ever raise the Faragher-Ellerth affirmative defense to a constructive discharge claim. Drawing from the reasoning of its Faragher and Ellerth decisions, the Court concluded that the defense would not be available if an "official act" caused the constructive discharge. An employer cannot avail itself of the defense, the Court held, "if the plaintiff quits in reasonable response to an employer-sanctioned adverse action officially changing her employment status or situation, for example, a humiliating demotion, extreme cut in pay, or transfer to a position in which she would face unbearable working conditions."²⁴⁷

This conclusion opened the door to a new question: When is a constructive discharge the result of an "official act"? The Court in Suders defined an "official act" as "an employer-sanctioned adverse action officially changing [the plaintiff's] employment status or situation."²⁴⁸ It also discussed two lower court examples to illustrate the concept. First, the Court cited Reed v. MBNA Marketing Systems, Inc., a case where the plaintiff raised a constructive discharge claim based on a supervisor's sexual comments and sexual assault. The Court agreed with the First Circuit that there was no "official act" there; the supervisor's conduct was "exceedingly unofficial and involved no direct exercise of company authority."²⁴⁹ As a result, the defendant could raise the affirmative defense.²⁵⁰ By contrast, the Court pointed to Robinson v. Sappington. In that case, after the plaintiff complained about sexual harassment by a judge for whom she worked, the presiding judge had her transferred to another judge who did not want her on staff.²⁵¹ The Court agreed with the Seventh Circuit that this "official act" of transferring the plaintiff precluded the defendant from raising the Faragher-Ellerth defense.²⁵²

Since Suders, lower courts have construed an "official act" to require a showing that some supervisor made a formal change in the employee's status. In Chapp v. 202 Lake Street Partners, for example, a federal district court reviewed a sixteen-year-old restaurant employee's allegations that his supervisor touched his groin area and sent him inappropriate text messages.²⁵³ The employee quit, and the court held that the restaurant could assert an affirmative defense given that it took no official action against the employee.²⁵⁴ In contrast, in Horace v. ARIA, the Eleventh Circuit observed that a worker complaining of racial harassment resigned, in part, after the company refused to correct an error in his rate of pay.²⁵⁵ This, the court held, could qualify as an official act.²⁵⁶

Whether a plaintiff can meet the standard for a constructive discharge claim, as opposed to showing severe or pervasive harassment that does not rise to the level of constructive discharge, has implications for the damages available. The Court stated in Suders that "a prevailing constructive discharge plaintiff is entitled to all damages available for formal discharge. The plaintiff may recover postresignation damages, including both backpay and, in fitting circumstances, frontpay."²⁵⁷ By contrast, as explained below, a plaintiff who prevails on a harassment claim not involving discharge would not be eligible for lost compensation.²⁵⁸

To establish a Title VII retaliation claim, a plaintiff must show that he or she engaged in "protected activity" responding to a potential Title VII violation;²⁶¹ reprisals for unprotected behavior will not give rise to a claim. Title VII covers two types of protected activity: "opposition,"²⁶² when an employee "has opposed any practice" Title VII prohibits, and "participation," when an employee has "participated in any manner in an investigation, proceeding, or hearing" under the statute.²⁶³

Protected "opposition" encompasses a wide range of activities. For instance, the Supreme Court has ruled that reporting in the context of an employer's investigation can be protected opposition. In Crawford v. Metropolitan Government of Nashville and Davidson County, the Court held that an employee who reports "discrimination not on her own initiative, but in answering questions during an employer's internal investigation," may be protected under the opposition clause of Title VII's anti-retaliation provision.²⁶⁴ In that case, the Court addressed a worker's Title VII claim that she was fired in retaliation for reporting harassment during her employer's internal investigation of a male manager.²⁶⁵ The plaintiff—in response to questions from a human resources officer about whether she had ever witnessed "'inappropriate behavior'" by the male manager—described several instances of his sexually harassing behavior.²⁶⁶

With respect to protected "participation," courts have held that participation in a Title VII proceeding after a charge of discrimination has been filed with the EEOC counts.²⁶⁷ In the EEOC's view, participation in an employer's internal equal employment complaint process counts as well.²⁶⁸ The Crawford Court did not decide whether participation in an employer's internal investigation counts as protected "participation" in a Title VII proceeding,²⁶⁹ but several federal courts of appeals have held that an employee's participation in such an investigation, when no EEOC charge has been filed, is not protected participation.²⁷⁰ Protected "participation" is broader than "opposition" in one respect—it does not consider the employee's motive. Even if a worker does not support a claimant, participating as a witness in a Title VII proceeding is protected.²⁷¹

An employee may be protected from retaliation even if he or she reports behavior that does not qualify as a Title VII violation. To be engaged in protected behavior, a plaintiff must have a "good faith" or objectively "reasonable" belief that the conduct he or she reported was unlawful under Title VII.²⁷² Sometimes referred to as the "reasonable belief" standard,²⁷³ courts will dismiss retaliation claims if the employee was unreasonable in believing the reported conduct was harassment,²⁷⁴ even if evidence reflects that the plaintiff was fired or otherwise acted against shortly after making the report.²⁷⁵ The "reasonable belief" standard applies when employees report their own harassment,²⁷⁶ when an employee reports seeing another employee being harassed,²⁷⁷ and when an employee supports another employee's harassment report.²⁷⁸ Federal courts have developed a body of case law on what constitutes a reasonable belief that unlawful conduct has occurred under Title VII. In determining whether the plaintiff's harassment report was reasonable, federal courts often evaluate whether the harassing conduct the plaintiff reported was "close enough" to an actual Title VII violation.²⁷⁹ Thus, a court's "reasonableness" analysis in a Title VII retaliation case involving an underlying report of perceived sexual harassment can rely significantly on its precedent deciding what conduct is sufficiently "severe or pervasive" to make out a Title VII discrimination claim.²⁸⁰

Courts do not assume employees know such precedent. In one case, the Tenth Circuit explained that it adopted "an objective reasonableness inquiry that considers the law against what a reasonable employee would believe, not what a reasonable labor and employment attorney would believe."²⁸¹ In another case, the Seventh Circuit held that the plaintiff was objectively reasonable in believing the conduct she reported to her supervisor was harassment when she reported that her male coworker, unwelcome and unsolicited, sat on her lap and whispered into her ear about her appearance.²⁸² The court explained that its hostile work environment precedent "has often recognized in the past that unwanted physical contact falls on the more severe side for purposes of sexual harassment," that the reported conduct was "the type of occurrence that, if it happened often enough, could constitute sexual harassment," and that the plaintiff was thus reasonable in believing that conduct to be unlawful.²⁸³

By contrast, in another case, the Eleventh Circuit held that the plaintiff did not reasonably believe she had suffered unlawful harassment where her supervisor commented on her breasts and breast size more than once, including laughing as he told her "'you just look like you're going to burst'" out of a new shirt she was wearing, and telling her that there were no aprons big enough to accommodate her breasts.²⁸⁴ The court concluded that "the conduct [plaintiff] described is insufficient to support an objectively reasonable belief that [her manager] was engaging in an unlawful employment practice," describing the conduct as "simple teasing."²⁸⁵

When a court characterizes reported harassment as a "single incident," a retaliation claim based on the report may be particularly vulnerable to dismissal under the reasonable belief standard.²⁸⁶ In these circumstances, courts often cite the Supreme Court's 2001 per curiam decision in Clark County School District v. Breeden.²⁸⁷ The Fifth Circuit, for example, has characterized Breeden as "holding that a plaintiff did not engage in protected activity because 'no reasonable person could have believed that' a single, non-serious incident 'violated Title VII's standard.'"²⁸⁸

In Breeden,²⁸⁹ the plaintiff met with her male coworker and male supervisor to review the psychological evaluation reports of several job applicants.²⁹⁰ One job applicant had written that he had once said to a coworker, "'I hear making love to you is like making love to the Grand Canyon.'"²⁹¹ The plaintiff's supervisor read the comment out loud and told the plaintiff he did not know what the comment meant, to which the plaintiff's male coworker responded by saying he would explain it later, and both men chuckled.²⁹² In holding that the plaintiff was not objectively reasonable in believing this exchange to be unlawful harassment, the Court explained that the plaintiff's job "required her to review the sexually explicit statement in the course of screening job applicants," cited the district court record reflecting that the plaintiff was not bothered or upset by reading the statement in the file, and stated that her fellow employees' conversation about the statement was, "at worst an 'isolated inciden[t]' that cannot remotely be considered 'extremely serious,' as our cases require."²⁹³ In that context, the Court stated that "[n]o reasonable person could have believed that the single incident recounted above violated Title VII's standard."²⁹⁴ Though the Court analyzed the plaintiff's objective reasonableness in Breeden, the Court did not "rule on the propriety" of the reasonable belief test itself.²⁹⁵

Some federal appellate courts have construed Breeden to mean that reporting an "isolated incident" is objectively unreasonable,²⁹⁶ while others have held that reporting an "isolated incident" can be objectively reasonable if the incident concerns humiliating or physically threatening conduct.²⁹⁷ Still other courts have focused on the circumstances and context of the plaintiff's report rather than the number of incidents reported.²⁹⁸

In Montell v. Diversified Clinical Services, Inc., for example, the Sixth Circuit rejected the defendant's argument that the plaintiff could not have reasonably believed that her supervisor's "few comments" could be unlawful sexual harassment.²⁹⁹ Stating that the "argument [could] be quickly dispatched," the court explained that the plaintiff could have had an objectively reasonable belief that her supervisor was engaging in unlawful sexual harassment when he told her he was turned on by a woman in a red dress and heels, while the plaintiff was wearing a red dress and heels.³⁰⁰ The court reasoned that the comment was sexual in nature and came from a supervisor directed at his subordinate and stated that the supervisor had prefaced his comment by telling her she could get him in trouble with the human resources department for making the comment.³⁰¹ The court concluded that the evidence was sufficient to show she could have had an objectively reasonable belief, and that whether she did in fact have such a belief, "a question of credibility, must be left to a jury."³⁰²

Beyond prohibiting retaliation in the form of adverse employment actions like termination or demotion, Title VII also bars retaliatory harassment—that is, when a plaintiff reports a potential Title VII violation of any kind, and the employer reacts by harassing the employee. Circuit courts disagree on how to analyze such claims, however. Specifically, they diverge on whether the "severe or pervasive" standard from Harris v. Forklift Systems, Inc. applies to retaliatory harassment claims, or whether Burlington Northern v. White³⁰³ (which generally controls Title VII retaliation claims) provides the appropriate standard.

The Supreme Court decided Burlington Northern v. White in 2006, setting the legal standard for evaluating actionable retaliation. Before Burlington Northern, some circuits found retaliation only if an employer fired or demoted an employee, while others did not limit actionable retaliation to such "ultimate" employment decisions.³⁰⁴ The Supreme Court expressly rejected the interpretation limiting actionable retaliation to only "workplace-related or employment-related retaliatory acts and harm."³⁰⁵ Instead, the Court held that actionable retaliation is any conduct that "could well dissuade a reasonable worker from making or supporting a charge of discrimination."³⁰⁶ The Court also observed that the purpose of the anti-retaliation provision—that is, preventing an employer from interfering with an employee's efforts to report unlawful conduct—could not be achieved if actionable retaliation was limited only to employment-related actions.³⁰⁷ Such a limited construction, the Court stated, "would not deter the many forms that effective retaliation can take."³⁰⁸

Circuit courts have applied the Burlington Northern standard to conclude that Title VII covers a wide variety of alleged retaliatory conduct, including, for example, changing shift times and work locations or issuing an unfavorable performance review.³⁰⁹ Some circuit courts also apply Burlington Northern to Title VII claims alleging retaliatory harassment, asking whether harassing conduct would dissuade a reasonable person from making or reporting a claim of discrimination. Other circuits, by contrast, have turned to Harris in retaliatory harassment cases, requiring that retaliatory harassment be severe or pervasive enough to create a hostile work environment in order to be actionable.

The Third Circuit has expressly held that under Burlington Northern, a plaintiff alleging retaliatory harassment need not establish that the harassment was severe or pervasive.³¹⁰ The court explained that following Burlington Northern, "such claims may go forward upon a showing by the plaintiff that 'a reasonable employee would have found the alleged retaliatory actions materially adverse.'"³¹¹ The court viewed "materially adverse" to mean an action that "'well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.'"³¹² The Second Circuit has also applied Burlington Northern to retaliatory harassment,³¹³ and the Eleventh Circuit, after issuing contradicting decisions, clarified its precedent in 2020 to adopt "the Burlington Northern 'well might have dissuaded' standard."³¹⁴

On the other hand, the Sixth Circuit has determined that Burlington Northern does not apply in the retaliatory harassment context and that a retaliatory harassment claim needs to include evidence of severe or pervasive mistreatment.³¹⁵ The Ninth Circuit similarly requires a showing of severe or pervasive harassment for conduct to constitute actionable retaliation.³¹⁶

In other circuits the standard is unclear, with analyses blending language from Harris ("severe or pervasive") and Burlington Northern ("dissuade a reasonable worker"). Citing Burlington Northern, for example, the Fourth Circuit requires that a plaintiff show conduct "sufficiently severe or pervasive that it would dissuade a reasonable worker from making or supporting a charge of discrimination."³¹⁷ Similarly, the Seventh Circuit concluded that a retaliatory harassment claim failed because there was no evidence that the alleged retaliation "was severe enough to dissuade a reasonable employee from exercising his Title VII rights," though in a different case the court stated it saw no reason to analyze harassment motivated by retaliation any differently from harassment based on a protected characteristic (such as sex).³¹⁸ The First Circuit has, within the same case, cited Burlington Northern's requirement that a retaliatory action is one that would "dissuade a reasonable person from making or supporting a charge of discrimination" and then required that retaliatory harassment be "severe or pervasive."³¹⁹ The D.C. Circuit has similarly mixed Harris and Burlington Northern standards in assessing retaliatory harassment claims,³²⁰ and the Fifth Circuit has yet to recognize a retaliatory harassment cause of action.³²¹

As reflected above, there is considerable disagreement among courts as to how to analyze retaliatory harassment claims. Whether a court elects to apply Harris or Burlington Northern has significant consequence: retaliatory conduct under Harris must be severe or pervasive to constitute actionable retaliation, which appears to be a more demanding standard to meet than the "dissuade a reasonable worker" standard set forth in Burlington Northern.

Along with damages, a Title VII sexual harassment plaintiff may also seek injunctive relief.³²⁷ In general, "[a] district court has broad discretionary powers to craft an injunction to the specific violations found to ensure that the employer complies with the law."³²⁸ For example, in EEOC v. Wilson Metal Casket, the Sixth Circuit upheld an injunction which prohibited the harassing supervisor from "asking any female employee to accompany him off the premises of the Company unless accompanied by at least one other employee, and kissing or placing his hands on any female employee in the work place."³²⁹ The court upheld this injunction even though not all of the enjoined conduct was itself, standing alone, likely illegal; the court stated that the injunction "appropriately enjoins conduct which allowed sexual harassment to occur."³³⁰

In addition, reasonable attorney's fees are available to a prevailing party, either a plaintiff or a defendant, under Title VII.³³¹ Prevailing plaintiffs generally recover fees unless special circumstances preclude such recovery.³³² A prevailing plaintiff is one who obtains relief which "materially alters the legal relationship between the parties"; for example, the appropriate attorney's fee when a plaintiff receives an award limited to nominal ($1) damages is generally "no fee at all."³³³ Defendants who prevail are entitled to fees only if the plaintiff's claim was frivolous, unreasonable, or groundless.³³⁴

Antiharassment doctrine is largely judge-made, and many antiharassment obligations are not fully codified. Congress could consider adding specific antiharassment provisions to antidiscrimination laws. Congress could either broaden or narrow the range of actionable harassment claims. For example, it could change the "severe or pervasive" standard to make it either easier or more difficult for plaintiffs to show harassment. In areas where courts are divided, such as whether Title VII covers retaliatory harassment and which standards apply to these claims, Congress could clarify the rules. It could also lay out standards for employer liability, considering harassment committed by coworkers, supervisors (which Congress may choose to define), or third parties such as customers.

Congress has considered harassment-related legislation addressing additional reform options. In 2026, lawmakers introduced H.R. 7583/S. 3865, the BE HEARD in the Workplace Act of 2026. (A version was originally proposed in 2019.) The proposed Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination in the Workplace Act of 2026 aims to "prevent and reduce prohibited discrimination, including harassment, in employment."³³⁵ The bill would also clarify how courts should apply Bostock by specifying how employers need to accommodate variations in gender identity.³³⁶ The bill would impose fines for offenders,³³⁷ and it would expand Title VII's reach by amending it to apply to small employers (as those with fewer than fifteen employees are currently excluded).³³⁸

In addition, the BE HEARD Act would establish standards of proof for discrimination and employment harassment, codifying some of the judicial developments discussed above. It would specify quid pro quo harassment as unlawful and it would define other harassment as conduct having "the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment."³³⁹ The Act would amend several employment-discrimination laws to address disability, age, and religious harassment.

The BE HEARD Act would also restrict mandatory arbitration and pre-employment confidentiality agreements.³⁴⁰ As another illustration of congressional interest in the area of disclosure, H.R. 4599, the Protections and Transparency in the Workplace Act, would require covered publicly traded companies to report claims of harassment, defined as potential violations of listed federal antidiscrimination statutes.³⁴¹ (A version was introduced in the 116^th, 117^th, and 118^th Congresses.) Settlements, judgments, and payments for covered discrimination and harassment claims would also require disclosure.³⁴²

Footnotes

See, e.g., Press Release, Federal Deposit Insurance Corporation, FDIC Special Review Committee Releases Independent Report on Workplace Misconduct and Culture (May 7, 2024), https://www.fdic.gov/news/press-releases/2024/fdic-special-review-committee-releases-independent-report-workplace [https://perma.cc/BSR7-TUP7]; Holly Corbett, The #MeToo Movement Six Years Later: What's Changed And What's Next,

FORBES (Nov. 16, 2023, at 02:00pm ET), https://www.forbes.com/sites/hollycorbett/2023/11/16/the-metoo-movement-six-years-later-whats-changed-and-whats-next/ [https://perma.cc/8RPD-F35F].

U.S. Comm. on C.R., Federal #MeToo: Examining Sexual Harassment in Government Workplaces Briefing Report (April 2020), https://www.usccr.gov/files/pubs/2020/04-01-Federal-Me-Too.pdf [https://perma.cc/5SGH-7SM5].

Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, 9 U.S.C. §§ 401–402; Speak Out Act, 42 U.S.C. §§ 19401–19404.

42 U.S.C. § 2000e-2(a)(1) ("It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate 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."). Title VII applies to private employees, state and local government employees, and most federal civilian employees. See 42 U.S.C. §§ 2000e(b), 2000e-16(a); CRS Report R46534, The Civil Rights Act of 1964: An Overview, by Christine J. Back, 63 (2020). It does not generally cover judicial employees. CRS In Focus IF12745, Policies Governing Employment Discrimination and Harassment in the Judicial Branch, by Abigail A. Graber and Whitney K. Novak (2024). The Congressional Accountability Act covers legislative employees, applying Title VII standards by cross-reference. 2 U.S.C. § 1302.

See id. and 42 U.S.C. § 2000e-2(b) (making it unlawful for an employer "to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.").

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66-–67, 73 (1986) (recognizing sexual harassment as a violation of Title VII and expressly holding that such claims are actionable under Title VII). See also, e.g., EEOC v. CentralCent. Wholesalers, Inc., 573 F.3d 167, 174-–77 (4th Cir. 2009) (analyzing Title VII harassment claims based on race and sex); EEOC v. WC&M Enters., Inc., 496 F.3d 393, 399-402–02 (5th Cir. 2007) (analyzing Title VII harassment claims based on religion and national origin).

See id.

See Harris v. Forklift SystemsSys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor, 477 U.S. at 64) (explaining that the "phrase 'terms, conditions, or privileges of employment' evinces a congressional intent 'to strike at the entire spectrum of disparate treatment of men and women' in employment,' which includes requiring people to work in a discriminatorily hostile or abusive environment") (quoting Meritor, 477 U.S. at 64); EEOC v. Fairbrook MedicalMed. Clinic, 609 F.3d 320, 327 (4th Cir. 2010) (quoting Meritor, 477 U.S. at 66) (explaining that a plaintiff alleging harassment can establish a Title VII violation by "'proving that discrimination based on sex has created a hostile or abusive work environment'") (quoting Meritor, 477 U.S. at 66).

See generally, Pa. State Police v. Suders, 542 U.S. 129, 133 (2004) (to be actionable under Title VII, plaintiffs must show "harassing behavior 'sufficiently severe or pervasive to alter the conditions of [their] employment'") (quoting Meritor, 477 U.S. at 67).

Title VII prohibits discrimination "because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. §§ 2000e-2(a)(1) and (a)(2).

With respect to showing that the alleged harassment or hostile treatment was based on sex, some courts have held that the harassment need not necessarily have been sexual in nature. See, e.g., Boumehdi v. Plastag Holdings, LLC., 489 F.3d 781, 788 (7th Cir. 2007) (stating that though "most of [harasser]'s alleged comments were sexist rather than sexual, our precedent does not limit hostile environment claims to situations in which the harassment was based on sexual desire").

See, e.g., LeGrand v. Area Resources for Community and Human Services, 394 F.3d 1098, 1102 (8th Cir. 2005) (prima facie elements require the plaintiff to show: membership in a protected group, subjection.

This report does not address harassment based on other protected characteristics, which may raise distinct issues and fact patterns. For a discussion of other forms of employment harassment, see CRS Report R49010, What Is Harassment? An Overview from Federal Employment Law, by April J. Anderson (2026).

Some courts consider, in addition to whether the victim perceived the environment as hostile, whether the behavior was unwelcome. See, e.g., Blomker v. Jewell, 831 F.3d 1051, 1056 (8th Cir. 2016) (listing unwelcomeness as one of the requirements in establishing a hostile environment); Smith v. Rock-Tenn Servs., Inc., 813 F.3d 298, 307 (6th Cir. 2016) (same); Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (en banc) (stating that an allegation of a hostile work environment based on race should show unwelcome behavior).

510 U.S. 17, 23 (1993).

See, e.g., Gerald v. University of Puerto Rico

Faragher v. City of Boca Raton, 524 U.S. 775, 787–88 (1998).

Id. (citation omitted) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998)).

510 U.S. 17, 23 (1993).

. See, e.g.,, Central Wholesalers, 573 F.3d at 175-–76 (applying Harris to harassment analysis); Mendoza, 195 F.3d at 1245-–51 (same). See also Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998)Faragher, 524 U.S. at 787–88 (discussing Harris as "direct[ing] courts to determine whether an environment is sufficiently hostile or abusive by 'looking at all the circumstances,' including 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.'").

Faragher, 524 U.S. at 788.

Id. (quoting Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998)).

See, e.g., EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008) ("Our circuit has likewise recognized that plaintiffs must clear a high bar in order to satisfy the severe or pervasive test."); Mendoza, 195 F.3d at 1243, 1251 (holding alleged conduct insufficient to constitute actionable harassment where the plaintiff alleged her supervisor looked her up and down and made a sniffing motion as he looked at her groin two times, constantly followed her, told her he was "getting fired up," and passed by her in the hallway and rubbed his hip against her hip while touching her shoulder; stating that to hold this conduct actionable would "establish a baseline of actionable conduct that is far below that established by other circuits" and citing cases with similar or more serious allegations that failed to constitute actionable harassment as a matter of law).

See, e.g., Turner v. The Saloon, Ltd, 595 F.3d 679, 685 (7th Cir. 2010) ("We have acknowledged before that '[d]rawingdrawing the line' between what is and is not objectively hostile 'is not always easy'"; contrasting facts involving sexual assault, obscene language, or pornographic material with "'occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers.'") (citation omitted). See also Guess v. Bethlehem Steel Corp., 913 F.2d 463, 464 (7th Cir. 1990) (discussing the Supreme Court's holding in Meritor that "Title VII's prohibition against sex discrimination in working conditions" included a prohibition against sexual harassment, and noting (quoting Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir. 1995)); see also Guess v. Bethlehem Steel Corp., 913 F.2d 463, 464 (7th Cir. 1990) (stating that because "the statute does not use the term [harassment] or otherwise refer specifically to the conduct described by it, the metes and bounds of the wrong have been left for definition by the courts").

See, e.g., EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008) ("Our circuit has likewise recognized that plaintiffs must clear a high bar in order to satisfy the severe or pervasive test."); Mendoza, 195 F.3d at 1243, 1251 (conduct insufficient to constitute actionable harassment, where plaintiff alleged her supervisor looked her up and down and made a sniffing motion as he looked at her groin on two separate occasions, constantly followed her, told her he was "getting fired up," and passed by her in the hallway and rubbed his hip against her hip while touching her shoulder; stating that to hold this conduct actionable would "establish a baseline of actionable conduct that is far below that established by other circuits" and citing cases with similar or more serious allegations that failed to constitute actionable harassment as a matter of law).

Redd v. New York Div. of Parole, 678 F.3d 166, 177 (2d Cir. 2012). See

This report references a number of decisions by federal appellate courts of various regional circuits. For brevity, references to a particular circuit in the body of this report (e.g., the Second Circuit) refer to the U.S. Court of Appeals for that particular circuit.

Harris, 510 U.S. at 23.

See, e.g., LeGrand, 394 F.3d at 1102 (in applying Harris factors, characterizing conduct as "three isolated incidents, which occurred over a nine-month period" to hold conduct did not amount to Title VII violation); Burnett, 203 F.3d at 984 (holding that "a single battery coupled with two merely offensive remarks over a six-month period does not create an issue of material fact as to whether the conduct alleged was sufficiently severe to create a hostile work environment."); Mendoza, 195 F.3d at 1242-43, 1249 (where plaintiff alleged her supervisor looked her up and down and made a sniffing motion as he looked at her groin, passed by her in the hallway and rubbed his hip against her hip while touching her shoulder smiling, and constantly followed her, stating that "a single instance of slight physical contact, one arguably inappropriate statement, and three instances of [her supervisor]'s making a sniffing sound" occurring over an eleven-month period was "far too infrequent" to constitute a Title VII violation).

See Lapka v. Chertoff, 517 F.3d 974, 983-–84 (7th Cir. 2008) (co-worker rape was sufficiently severeholding that coworker rape was severe enough to constitute actionable harassment under Title VII); Gary v. Long, 59 F.3d 1391, 1397 (D.C. Cir. 1995) ("If proven to be true, [supervisor]'s repeated verbal and physical harassment of [plaintiff], culminating in a rape, is 'not only pervasive harassment but also criminal conduct of the most serious nature' that is 'plainly sufficient to state a claim for 'hostile environment sexual harassment.'") (quoting Meritor, 477 U.S. at 67).

See Kaytor v. Electric (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)).

See Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 334-–35 (6th Cir. 2008) (conduct sufficientlyholding conduct severe or pervasive enough, where harasser asked plaintiff to perform oral sex and have sex on multiple occasionsseveral times, regularly tried to touch her, rubbed against her with his private parts, tried to grab her waist, made "lewd and sexual comments 'all the time,'" and made regular sexual references to her private body parts); Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 1248 (11th Cir. 2004) (conduct sufficientlyholding conduct severe or pervasive enough, where harasser repeatedly propositioned plaintiff for sex, repeatedly attempted to touch her breasts, placed his hands down her pants, tried to pull off her pants, and enlisted others to hold her while he attemptedtried to grope her).

Hulsey, 367 F.3d at 1248.

Id.

See Boumehdi, 489 F.3d at 789 (where plaintiff's supervisor allegedly made "at least 18 See EEOC v. BNSF Ry. Co., 150 F.4th 948, 966 (8th Cir. 2025), reh'g denied, No. 24-2082, 2025 WL 3085999 (8th Cir. Nov. 5, 2025) (concluding hostile environment could be found where plaintiff experienced unsanitary bathroom conditions aimed at intimidating women, "endured discriminatory comments—up to three times a week—and saw sexually explicit graffiti every time that she worked"); Copeland v. Ga. Dep't of Corr., 97 F.4th 766, 776 (11th Cir. 2024) (expressing "no doubt" that "conduct that occurs daily (even over a shorter span of time) is frequent"); Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 789 (7th Cir. 2007) (concluding in a case where plaintiff's supervisor allegedly made "at least eighteen sexist or sexual comments in less than a year's time," and similar comments were made "very often," that such conduct was pervasive enough to create a hostile work environment); WC&M EnterprisesEEOC v. WC&M Enters., Inc., 496 F.3d at 400 (where plaintiff was subjected to393, 400 (5th Cir. 2007) (determining, in a case where plaintiff faced verbal harassment on "a regular basis for a period of approximately one year," that evidence was sufficient to show actionable Title VII claim).

See, e.g., Mormol v. Costco Wholesale Corp., 364 F.3d 54, 55-56, 58-59 (2d Cir. 2004) (

Harris, 510 U.S. at 23.

BNSF Ry. Co., 150 F.4th at 966.

See, e.g., LeGrand v. Area Res. for Cmty. and Hum. Servs., 394 F.3d 1098, 1103 (8th Cir. 2005) (characterizing conduct as "three isolated incidents, which occurred over a nine-month period" to hold conduct did not amount to Title VII violation); Burnett v. Tyco Corp., 203 F.3d 980, 985 (6th Cir. 2000) ("[A] single battery coupled with two merely offensive remarks over a six-month period does not create an issue of material fact as to whether the conduct alleged was sufficiently severe to create a hostile work environment."); Mendoza v. Borden, Inc., 195 F.3d 1238, 1242–43, 1249 (11th Cir. 1999) (en banc) (reporting that plaintiff alleged her supervisor looked her up and down and made a sniffing motion as he looked at her groin, passed by her in the hallway and rubbed his hip against her hip while touching her shoulder smiling, and constantly followed her, stating that "a single instance of slight physical contact, one arguably inappropriate statement, and three instances of [her supervisor]'s making a sniffing sound" occurring over an eleven-month period was "far too infrequent" to constitute a Title VII violation).

EEOC v. BNSF Ry. Co., 150 F.4th 948, 966 (8th Cir. 2025); Sharp v. S&S Activewear, L.L.C., 69 F.4th 974, 979 (9th Cir. 2023) ("More than offhand foul comments, the music at S&S allegedly infused the workplace with sexually demeaning and violent language, which may support a Title VII claim even if it offended men as well as women.").

, abrogated on other grounds by Nat'l R.R. Passenger v. Morgan, 536 U.S. 101 (2002).

394 F.3d 1098, 1100, 1103 (8th Cir. 2005).

707 F.3d 7, 18 (1st Cir. 2013).

229 F.3d 917, 921, 924–27 (9th Cir. 2000).

Id. at 924-27.

Id. at 921.

Id. at 924-927.

Turner, 595 F.3d at 685-–27.

Paskert v. Kemna-ASA Auto Plaza, Inc., 950 F.3d 535, 538 (8th Cir. 2020).

Turner, 595 F. 3d at 685-86.

LeGrand, 394 F.3d at 1102-03.

Id. at 1102.

Shepherd v. Comptroller of Public Accounts of State of Tx., 168 F.3d 871, 872, 875 (5th Cir. 1999).

Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 402-03 (5th Cir. 2013) (noting

Friend v. City of Greenwood, No. 4:19-CV-00018, 2020 WL 2306112, at *6 (N.D. Miss. May 5, 2020) ("[T]he alleged conduct appears less severe than conduct that the Fifth Circuit has deemed insufficient to establish a sex discrimination claim"), aff'd sub nom., Friend v. McAdams, 861 F. App'x 825 (5th Cir. 2021).

Shepherd v. Comptroller of Pub. Accounts of State of Tx., 168 F.3d 871, 872, 875 (5th Cir. 1999).

See, e.g., Hockman (citing Harvill v. Westward Commc'ns., L.L.C., 433 F.3d 428, 434–35 (5th Cir. 2005)).

tried to get her transferred).

Muldrow v. City of St. Louis, 601 U.S. 346, 350 (2024).

Id.

Id.

Kellar, 157 F.4th at 873.

Id.

McNeal, 117 F.4th at 904 (quoting Muldrow, 601 U.S. at 355).

Russell v. Driscoll, 157 F.4th 1348, 1352–53 (10th Cir. 2024).

Id.

Id.

477 U.S. 57, 72 (1986).

Meritor, 477 U.S. at 72 ( (citations omitted)).

524 U.S. 775, 780 (1998).

See generally SudersPa. State Police v. Suders, 542 U.S. at129, 143 (2004) (discussing "the framework Ellerth and Faragher established to govern employer liability for sexual harassment by supervisors").

Ellerth, 524 U.S. at 763-–64 (discussing the holding in Meritor limiting employer liability for workplace harassment, and observing that "Congress has not altered Meritor's rule even though it has made significant amendments to Title VII in the interim").

Id.; see See also Faragher, 524 U.S. at 804, n.4 (notingstating it was bound by Meritor because of stare decisis, but also because Congress's decision not to disturb the holding in Meritor was "conspicuous" in light of Congress's expansion of monetary relief in the 1991 amendments to Title VII; on that basis, explaining that the Court must "assume that in expanding employers' potential liability under Title VII, Congress relied on our statements in Meritor about the limits of employer liability").

Vance v. Ball State University, 133 S.Ct. 2434, 2439the 1991 amendments to Title VII).

Faragher, 524 U.S. at 804.

Id. at 804 n.4; see also Ellerth, 524 U.S. at 763–64.

Ellerth, 524 U.S. at 763.

A "tangible employment action" in the context of a Title VII harassment analysis is a "significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Ellerth, 524 U.S. at 761.

Faragher, 524 U.S. at 807-808–08 (holding that an employer is strictly liable for actionable harassment by a supervisor, "when the supervisor's harassment culminates in a tangible employment action"). See; see also Pa. State Police v. Suders, 542 U.S. 129, 144–46 (2004) also Suders, 542 U.S. at 144-146 (discussing the analyses, rationales, and holdings in the Faragher and Ellerth decisions).

Faragher, 524 U.S. at 807 (holding that an employer is vicariously liable for actionable harassment by a supervisor, but may assert an affirmative defense to liability or damages, with proof by a preponderance of the evidence, when "no tangible employment action is taken"); Ellerth, 524 U.S. at 765 (same).

Ellerth, 524 U.S. at 760.

Id. at 763.

Faragher, 524 U.S. at 804.

Id. at 804, n.4.

Ellerth, 524 U.S. at 763-64.

Leading up to the Faragher-Ellerth decisions, the EEOC took the position that "agency principles should be used for guidance" in determining employer liability for the harassment. See EEOC Policy Guidance on Current Issues of Sexual Harassment (1990), No. N-915-050, Section No 4(B)(3)(c), 1990 WL 1104701.

Ellerth, 524 U.S. at 760.

Faragher, 524 U.S. at 807-808; Ellerth, 524 U.S. at 765. See also Suders, 542 U.S. at 143-146 (discussing this distinction in the Faragher and Ellerth decisions).

Ellerth, 524 U.S. at 761-62.

Id. at 762.

Id. at 765.

Id.

Id. at 764-65.

Id; Faragher, 524 U.S. at 807-808.

Faragher, 524 US. at 799 (discussing the broad "unanimity of views among the holdings of District Courts and Courts of Appeals" that have "uniformly judg[ed] employer liability for co-worker harassment under a negligence standard"). Cf. Vance, 570 U.S. at 421, 424 ("Under Title VII, an employer's liability for such harassment may depend on the status of the harasser. If the harassing employee is the victim's co-worker, the employer is liable only if it was negligent in controlling working conditions."). But see Suders, 524 U.S. at 143 n.6 ("Ellerth and Faragher expressed no view on the employer liability standard for co-worker harassment. Nor do we.").

Ellerth, 524 U.S. at 760.

Id. at 763.

Id. at 761–62.

Id. at 762.

Id. at 765.

Id.

Id; Faragher, 524 U.S. at 807–08.

Faragher, 542 U.S. at 807 (also explaining that it will "normally suffice" to establish the second prong with evidence that the employee failed to use any complaint procedure provided by the employer).

Id. at 799 (discussing the broad "unanimity of views among the holdings of District Courts and Courts of Appeals" that have "uniformly judg[ed] employer liability for co-worker harassment under a negligence standard"). Cf. Vance, 133 S.Ct. at 2439 ("Under Title VII, an employer's liability for such harassment may depend on the status of the harasser. If the harassing employee is the victim's co-worker, the employer is liable only if it was negligent in controlling working conditions.") (citing Faragher and Ellerth). But see Suders, 524 U.S. at 143, n.6 ("Ellerth and Faragher expressed no view on the employer liability standard for co-worker harassment. Nor do we.").

See, e.g., Reynaga v. Roseburg Forest Products, 847 F.3d 678, 599 (9th Cir. 2017); Sunbelt Rentals, Inc., 521 F.3d at 319 (also explaining that knowledge can be imputed to the employer if a reasonable person would have known about the harassment, and that the remedial action must be "'reasonably calculated to end the harassment'"). See also MacCluskey v. Univ. of Conn. Health Center, No. 17-0807, 2017 WL 6463200, at *2 (2d Cir. Dec. 19, 2017) (articulating the test for negligence as "whether (1) the employer 'failed to provide a reasonable avenue for complaint' or (2) 'it knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action.'" (quoting Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir. 2009))).

See id. at 807–08.

Faragher, 542 U.S. at 807.

See id. at 807-08.

–58 (4th Cir. 2013).

See Jackson v. Quanex Corp., 191 F.3d 647, 663 (6th Cir. 1999) ("Significantly, a court must judge the appropriateness of a response by the frequency and severity of the alleged harassment.").

; Wyatt v. Nissan N. Am., Inc., 999 F.3d 400, 415 (6th Cir. 2021) (holding that a "three-week delay in investigating explicit allegations of unwanted physical invasions creates a question of reasonableness that should be resolved by a jury" and distinguishing case from a similar one of delayed investigation into "vague" allegations).

See, e.g., Jackson v. Cty.County of Racine, 474 F.3d 493, 502 (7th Cir. 2007) (in holding that corrective prong was satisfied, stating thatfirst prong of affirmative defense was satisfied where the "investigation was thorough and resulted in a significant disciplinary measure" against the harasser); Reed v. MBNA Mktg. Sys., Inc., 333 F.3d 27, 34 (1st Cir. 2003) (holding correctivefirst prong satisfied based on evidence including that the employer began investigating the day that the plaintiff reported her supervisor's conduct, and that the harasser was removed from the workplace almost immediately).

See, e.g., Hill, 218 F.3d at 643 ("While an appropriate anti-harassment policy with complaint procedure is not always necessary to sustain the defense, it is a relevant consideration.").

See, e.g., Brenneman, 507 F.3d at 1145 (., Brenneman v. Famous Dave's of Am., Inc., 507 F.3d 1139, 1145 (8th Cir. 2007) (holding that evidence satisfied the "correction" prong, when employer investigated and stopped the harassment, and offered to relocate the plaintiff to a restaurant five miles away; noting that, even though transferring the victim, and not the harasser, was "not ideal," stating this nonetheless satisfied this element).

See Kramer v. Wasatch CtyCnty. Sheriff's OfficeOff., 743 F.3d 726, 747 (10th Cir. 2014) (stating that evidence showing an employer's attempt to promptly remediate, "without any showing that such attempts were 'reasonably calculated to end the harassment' and deter future harassers," was insufficient tocould not satisfy defense) (citation omitted)); Jackson); Jackson, 474 F.3d at 502 ("We have said that "'[a]n employer's response to alleged instances of employee harassment must be reasonably calculated to prevent further harassment under the particular facts and circumstances of the case at the time the allegations are made.'"); Jackson, 191 F.3d at 663 ("Generally, a response is adequate if it is reasonably calculated to end the harassment."). See; see also Hardage v. CBS Broad., Inc., 427 F.3d 1177, 1186 (9th Cir. 2005) (stating that the reasonableness of the remedy depends on "its ability to: (1) 'stop harassment by the person who engaged in harassment;' and (2) 'persuade potential harassers to refrain from unlawful conduct.'") (quoting Nichols v. Azteca Rest. Enter., Inc., 256 F.3d 864, 875 (9th Cir. 2001))), amended on denial of reh'g, 433 F.3d 672 (9th Cir. 2006), amended on denial of reh'g, 436 F.3d 1050 (9th Cir. 2006). 89.

See, e.g., Weger v. City of Ladue, 500 F.3d 710, 719-. See, e.g., Est. of Harris v. City of Milwaukee, 141 F.4th 858, 866 (7th Cir. 2025) (holding that mere existence of an antiharassment policy is not sufficient, as "a company's policy must give employees a meaningful process to express their concerns about an individual in their work environment"); Weger v. City of Ladue, 500 F.3d 710, 719–20 (8th Cir. 2007) (stating that the distribution of an anti-harassmentantiharassment policy is "not dispositive" of the reasonableness of an employer's prevention efforts under the first prong of defense). Cf. Barrett v. Applied Radiant Energy Corp., 240 F.3d 262, 266 (4th Cir. 2001) ("Distribution of an anti-harassment policy provides 'compelling proof' that the company exercised reasonable care in preventing and promptly correcting sexual harassment.") (quoting Lissau v. SouthernS. Food ServiceServ., Inc., 159 F.3d 177, 182 (4th Cir.1998))). 90.

. Kramer, 743 F.3d at 732-34.

Id. at 747-–49 (examining aspects of the investigation and holding it insufficient to satisfy corrective prong).

Id.

Id. at 749 (stating that "'an employer's decision to do nothing on the basis of an inadequate investigation likewise supports a finding that the employer did not take prompt and effective remedial action.'")'" (quoting Wilson v. Tulsa Junior Coll., 164 F.3d 534, 543 n. 7 (10th Cir.1998))). 94.

Id.

Id.

Weger, 500 F.3d at 716, 723–24. 96723-24.

. Id. at 716.

Id. at 714, n.3.

Id. at 716.

Id.

Id. at 716, 723-–24 (also notingstating that during the investigation, the harasser was only permitted to enter the plaintiffs' work area in the presence of another supervisor and for a work-related purpose, and was temporarily relieved of his direct supervision over the plaintiffs; also, and stating that after the investigation, the harasser remained the plaintiffs' superior in the department, but was permanently removed from directly supervising them).

See, e.g., Hardage, 427 F.3d at 1182, 1188 (in analysis of this prong, , Hardage v. CBS Broad., Inc., 427 F.3d 1177, 1182, 1188 (9th Cir. 2005) (holding that plaintiff unreasonably failed to take advantage ofinvoke "preventative or corrective opportunities"; discussing facts that employer had an anti-harassmentantiharassment policy and complaint procedure of which plaintiff was aware, that plaintiff took six months to report the harassment after it began, and that when plaintiff reported the harassment, he specifically asked the company not to investigate or intervene because he wanted to try andto handle the situation himself).

See, e.g., Kramer, 743 F.3d at 751 (stating that though a generalized fear of retaliation is insufficient to, amended on denial of reh'g, 433 F.3d 672 (9th Cir. 2006), amended on denial of reh'g, 436 F.3d 1050 (9th Cir. 2006); Est. of Harris v. City of Milwaukee, 141 F.4th 858, 867 (7th Cir. 2025) (concluding plaintiff's anonymous, undated complaint failed to follow employer procedures and so she failed to use the antiharassment policy).

Reed, 333 F.3d at 37. See; see also id. at 30-31 (explaining factual context of case, including that around August 1999, plaintiff was sexually assaulted by her supervisor, that she resigned in the fall of 1999 without reporting the assault, returned to work in May 2000 because she needed to earn a higher salary than at her other job, and reported the assault and other acts of harassment in August 2000).

Id. at 37.

Id.

Weger, 500 F.3d at 714.

Id. at 726.

Id. at 725.

–31 (explaining factual context of case).

Id. at 37.

Id.

Weger v. City of Ladue, 500 F.3d 710, 714, 720, 726 (8th Cir. 2007).

Id. at 725.

Id. (additionallyalso stating that "the reasonableness of Plaintiffs' fears of retaliation is further called into question because the Department's antiharassment policy contained an antiretaliation provision").

Vance, 133 S. Ct. at 2439.

Id. at 2456.

; see also Trahanas v. Nw. Univ., 64 F.4th 842, 854 (7th Cir. 2023) (holding plaintiff's fear that if she reported harassment she would not receive a letter of recommendation did not justify failure to report). But see Wyatt v. Nissan N. Am., Inc., 999 F.3d 400, 416 (6th Cir. 2021) (holding that a jury could find worker's two-month delay in reporting reasonable, given harasser's threats that she needed his support at the company).

See, e.g., Reynaga v. Roseburg Forest Products, 847 F.3d 678, 599 (9th Cir. 2017); EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 319 (4th Cir. 2008) (also explaining that knowledge can be imputed to the employer if a reasonable person would have known about the harassment, and that the remedial action must be "'reasonably calculated to end the harassment'"). See also MacCluskey v. Univ. of Conn. Health Ctr., No. 17-0807, 2017 WL 6463200, at *2 (2d Cir. Dec. 19, 2017) (articulating the test for negligence as "whether (1) the employer 'failed to provide a reasonable avenue for complaint' or (2) 'it knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action.'" (quoting Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir. 2009))).

Vance v. Ball State Univ., 570 U.S. 421, 423 (2013).

Johnson v. Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll., 90 F.4th 449, 456 (5th Cir. 2024) (stating that the effectiveness of an employer response is a fact-specific inquiry, and holding employer's response appropriate where it separated the victim from the perpetrator and investigated).

Parkins v. Civil Constructors of Ill., 163 F.3d 1027, 1037 (7th Cir. 1998) (where employee failed to use proper grievance channel for complaint and only told one of the harassers and a dispatcher, there was no knowledge of harassment imputed to the employer).

Williamson v. City of Houston, 148 F.3d 462, 466 (5th Cir. 1998). 114 1998).

. Young, 123 F.3d at 675. See; see also Duch, 588 F.3d at 763 (holding that a report to a nonsupervisory coworker sparksa report to a non-supervisory co-worker does not spark employer liability unlessonly if "that co-worker has an official or strong de facto duty to act as a conduit to management for complaints about work conditions").

See Bonenberger v. Plymouth Twp., 132 F.3d 20, 23 (3d Cir. 1997) (finding employer knowledge of harassment imputed where direct supervisor witnessed the harassment directly).

Ocheltree v. Scollon Prods., 335 F.3d 325, 334 (4th Cir. 2003).

Id.

. Duch, 588 F.3d at 765.

517 F.3d 321, 339 (6th Cir. 2008).

Id. at 339-40.

Vance, 133 S. Ct. at 2439.

–40.

Vance v. Ball State Univ., 570 U.S. 421, 427 (2013).

Fuller v. City of Oakland, 47 F.3d 1522, 1528 (9th Cir. 1995).

Berry, 260 F.3d at 813. See; see also Star v. West, 237 F.3d 1036, 1039 (9th Cir. 2001) (holding that employer took sufficient action by counseling harasser, ordering him to leave complainant alone, and transferring him to a different shift); McKenzie v. IllinoisIll. Dep't of Transp., 92 F.3d 473, 476 (7th Cir. 1996).

Berry, 260 F.3d at 813.

The EEOC has primary responsibility for enforcing Title VII. E.E.O.C. v. Shell Oil Co., 466 U.S. 54, 62 (1984); 42 U.S.C. § 2000e-5(e)(1).

Berry, 260 F.3d at 813.

Ellison v. Brady, 924 F.2d 72, 75 (9th Cir. 1991). See; see also EEOC, Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors (1999) ("The complainant should not be involuntarily transferred or otherwise burdened.").

Hawkins, 517 F.3d at 341-42.

Id. at 344.

Id. at 344-45.

Id. See also EEOC v. Central Wholesalers, 573 F.3d 167, 177-78 (4th Cir. 2009) (employer's response was insufficient to, Notice No. 915.002 (June 18, 1999), https://www.eeoc.gov/laws/guidance/enforcement-guidance-vicarious-liability-unlawful-harassment-supervisors [https://perma.cc/DYK6-YD7U] ("The complainant should not be involuntarily transferred or otherwise burdened."). The EEOC's 1999 guidance was superseded by new guidance on harassment, issued in 2024. EEOC, Enforcement Guidance on Harassment in the Workplace, Notice No. 915.064 (April 29, 2024), https://naacpldf.org/wp-content/uploads/Enforcement-Guidance-on-Harassment-in-the-Workplace.pdf [https://perma.cc/V7VH-NE9U]. The 2024 guidance was rescinded in 2026. See EEOC, Press Release, EEOC Commission Votes to Rescind 2024 Harassment Guidance (Jan 23, 2026), https://www.eeoc.gov/newsroom/eeoc-commission-votes-rescind-2024-harassment-guidance [https://perma.cc/83GD-Y6RG]. It is currently unclear if the 1999 guidance is in effect.

Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 341–42 (6th Cir. 2008).

Id. at 344.

Id. at 344–45.

See, e.g., Howard v. Winter, 466 F.3d 559, 565 (4th Cir. 2006) ("The question of whether McCall was Howard's supervisor or her coworker is of great significance because in a case of harassment by a supervisor 'with immediate (or successively higher) authority over the employee,' an employer is vicariously liable for the harassment, subject to limited affirmative defenses not relevant here.") (quoting Ellerth, 524 U.S. at 765); Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 513 (11th Cir. 2000) (stating that harasser's supervisory status, and whether actions taken against plaintiff were tangible employment actions, are "critical").

See, e.g., Curry v. District of Columbia, 195 F.3d 654, 660 (D.C. Cir. 1999) (explaining that "the plaintiff must clear a higher hurdle under the negligence standard, where she bears the burden of establishing her employer's negligence, than under the vicarious liability standard, where the burden shifts to the employer to prove its own reasonableness and the plaintiff's negligence" when asserting the Faragher-Ellerth defense).

See, e.g., Howard, 466 F.3d at 566-67 (analyzing whether evidence demonstrated that harasser was plaintiff's supervisor or co-worker); Wyatt v. Hunt Plywood Co., Inc., 297 F.3d 405, 411 (5th Cir. 2002) (same).

Vance, 133 S.Ct. at 2443 ("Under Ellerth and Faragher, it is obviously important whether an alleged harasser is a 'supervisor' or merely a co-worker, and the lower courts have disagreed about the meaning of the concept of a supervisor in this context.").

Id.

Id. at 2446-47 (explaining that neither Faragher nor Ellerth presented "the question of the degree of authority that an employee must have in order to be classified as a supervisor").

Cf.

Fried v. Wynn Las Vegas, LLC, 18 F.4th 643, 647 (9th Cir. 2021) (stating that "it is well established that an employer can create a hostile work environment by failing to take immediate and corrective action in response to a coworker's or third party's sexual harassment or racial discrimination the employer knew or should have known about" and that "[a]ll federal circuits are in accord on this point").

29 C.F.R. § 1604.11(e) (2025) (allowing liability for non-employee harassment when the employer "knows or should have known of the conduct and fails to take immediate and appropriate corrective action").

Gardner v. CLC of Pascagoula, L.L.C., 915 F.3d 320, 327 (5th Cir. 2019), as revised (Feb. 7, 2019).

Fried, 18 F.4th at 650.

Id. at 651.

Id. at 652.

Gardner, 915 F.3d at 327.

Bivens v. Zep, Inc., 147 F.4th 635, 646 (6th Cir. 2025) ("Other than the Seventh Circuit, every other circuit to reach the issue, by our count the First, Second, Eighth, Ninth, Tenth, and Eleventh Circuits, has 'applied' some form of 'a negligence theory of liability to the harassing acts of customers.'" (quoting Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1074 (10th Cir. 1998))); Dunn v. Wash. Cnty. Hosp., 429 F.3d 689, 692 (7th Cir. 2005) (holding, in assessing a claim that an independent-contractor doctor harassed nurses, that "the right question is whether the Hospital intentionally created or tolerated unequal working conditions"). There appears to be disagreement between Seventh Circuit panels about the right standard, as some panels apply a negligence standard. EEOC v. Costco Wholesale Corp., 903 F.3d 618, 627 (7th Cir. 2018) (holding that "an employer is responsible for its own negligence if it" fails to prevent violation on its premises); Nischan v. Stratosphere Quality, LLC, 865 F.3d 922, 931 (7th Cir. 2017) (applying a negligence standard).

Bivens, 147 F.4th at 648.

Id. at 647.

Id.

See, e.g., Howard v. Winter, 466 F.3d 559, 565 (4th Cir. 2006) ("The question of whether McCall was Howard's supervisor or her coworker is of great significance because in a case of harassment by a supervisor 'with immediate (or successively higher) authority over the employee,' an employer is vicariously liable for the harassment, subject to limited affirmative defenses not relevant here." (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998))); Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 513 (11th Cir. 2000) (stating that harasser's supervisory status, and whether actions taken against plaintiff were tangible employment actions, are "critical").

See, e.g., Howard, 466 F.3d at 566–67; Wyatt v. Hunt Plywood Co., 297 F.3d 405, 411 (5th Cir. 2002).

Vance v. Ball State Univ., 570 U.S. 421, 438 (2013) (explaining that neither Faragher nor Ellerth presented "the question of the degree of authority that an employee must have in order to be classified as a supervisor").

Id. at 2443. It should be noted that though").

Vance, 570 U.S. at 421.

Id.

Vance, 133 S.Ct. at 2446.

Id.

Id. at 2448.

Id. at 2449.

Id. at 2455; id. at 451 (Ginsburg, J., dissenting) (setting forth the EEOC's two-pronged definition of supervisor as follows: "(1) an individual authorized 'to undertake or recommend tangible employment decisions affecting the employee,' including 'hiring, firing, promoting, demoting, and reassigning the employee'; or (2) an individual authorized 'to direct the employee's daily work activities.'").

Id. at 440.

Id. at 441.

Id. at 446.

Id. at 2450.

Id.

Id.

Id. at 2452.

Id.

Id. at 2451.

Id.

The dissent was written by Justice Ginsburg and joined by Justices Breyer, Sotomayor, and Kagan.

Id. at 2462 (Ginsburg, J., dissenting).

Id. at 2463 (Ginsburg, J., dissenting).

Id. at 2455 (Ginsburg, J., dissenting).

Id.

Id. at 2462 (Ginsburg, J., dissenting).

Id. at 2461-62 (Ginsburg, J., dissenting).

Id. at 2459-60 (Ginsburg, J., dissenting).

Id. at 2460 (Ginsburg, J., dissenting) (discussing and citing EEOC v. CRST Van Expedited, Inc., 679 F.3d 657, 665-666, 684-685 (8th Cir. 2012)).

Id.

Id.

Id.

Id.

See id. at 2449 ("The interpretation of the concept of a supervisor that we adopt today is one that can be readily applied.").

Id. at 2462 (Ginsburg, J., dissenting).

Id.

Id.

Id. at 2463 (Ginsburg, J., dissenting).

When analyzing harassment committed by the plaintiff's co-worker, lower courts require the plaintiff to show that the employer knew or should have known about the harassment and took insufficient action in responding to it. See supra section "Application of the Negligence Standard for Co-worker Harassment," pp. 13-15. See also Curry, 195 F.3d at 660 (explaining that "the plaintiff must clear a higher hurdle under the negligence standard, where she bears the burden of establishing her employer's negligence").

Id. at 2463-64 (Ginsburg, J., dissenting).

Id. at 2464 (Ginsburg, J., dissenting).

Id. at 2466 (Ginsburg, J., dissenting).

See, e.g., Reynaga, 847 F.3d at 689 (harasser, who was lead millwright, was not plaintiff's supervisor, despite having authority to direct the work of and assign daily tasks to other millwrights like plaintiff each day; record reflected that lead millwrights did not having hiring, firing, or disciplinary authority); Velazquez v. Developers Diversified Realty Corp., 753 F.3d 265, 272-73 (1st Cir. 2014) (harasser was not plaintiff's supervisor, despite having certain responsibility to direct his work, as record supported conclusion that harasser lacked ability to fire or discipline plaintiff).

Supra note 173. See also EEOC v. AutoZone, Inc., 692 F. App'x 280, 283 (6th Cir. 2017) ("Townsel's ability to direct the victims' work at the store and his title as store manager do not make him the victims' supervisor for purposes of Title VII"; stating that harasser "could not fire, demote, promote, or transfer any employees").

743 F.3d 726, 740-41 (10th Cir. 2014).

692 F. App'x 280, 283 (6th Cir. 2017).

Id. at 281, 283.

Id. at 283-84.

Id. at 283. See also Morrow v. Kroger Limited P'ship I, 681 F. App'x 377, 380-81 (5th Cir. 2017) (harasser was not plaintiff's supervisor, though he was responsible for scheduling employees and completing employee performance evaluations, and was consulted about hiring decisions; stating that this evidence did not show harasser "could cause a tangible employment action as is required under Vance").

AutoZone, 692 F. App'x at 283 (citing Vance, 133 S.Ct. at 2446). The Sixth Circuit's citation to Vance regarding "merely sign[ing] the paperwork" is to the following excerpt in Vance: "In Ellerth, it was clear that the alleged harasser was a supervisor under any definition of the term: He hired his victim, and he promoted her (subject only to the ministerial approval of his supervisor, who merely signed the paperwork)." 133 S.Ct. at 2446. Importantly, the Court in Vance here was not discussing signing paperwork in the context of assessing supervisory status based on delegated authority, but rather was discussing the facts in Faragher and Ellerth to explain that in those cases, the "Court simply was not presented with the question of the degree of authority that an employee must have in order to be classified as a supervisor." Id. at 2446-47.

AutoZone, 692 F. App'x at 284 (citing 133 S.Ct. at 2439). It is important to note that Vance did not expressly address the issue of whether the authority to hire or fire—that is, the authority that renders an individual a supervisor—always requires that the individual be able to exercise that power with respect to the plaintiff; rather, the Court in Vance noted in its discussion of the facts that the parties agreed the alleged harasser was not authorized to hire, fire, demote, promote, transfer, or discipline the plaintiff. Vance, 133 S.Ct. at 2439.

Moody v. Atlantic City Bd. of Educ., 870 F.3d 206, 216-17 (3rd Cir. 2017) (custodial foreman was plaintiff's supervisor under Vance, where he set hours for substitute custodians like plaintiff and thus "had the authority to cause a significant change in [plaintiff]'s benefits by assigning her no hours, thereby eliminating her take-home pay").

Kramer, 743 F.3d at 742-43 (stating that a harasser could still qualify as a supervisor "under apparent authority principles," in which the employer gives the appearance that it has given a second party power to act on its behalf, and which causes a third party to "reasonably and prudently" believe that the second party has such power).

Ellerth, 524 U.S. at 752 (as an example of quid pro quo harassment, explaining that such claims may concern allegations that "an employer demanded sexual favors from an employee in return for a job benefit," which would constitute "explicit" sex discrimination in the terms and conditions of employment; also stating that in its Meritor decision, it "distinguished between quid pro quo claims and hostile environment claims, and said both were cognizable under Title VII, though the latter requires harassment that is severe or pervasive. The principal significance of the distinction is to instruct that Title VII is violated by either explicit or constructive alterations in the terms or conditions of employment and to explain the latter must be severe or pervasive.") (citing Meritor, 477 U.S. at 65). See Id. at 445.

See, e.g., Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 689 (9th Cir. 2017) (holding that harasser, who was lead millwright, was not plaintiff's supervisor despite having authority to direct the work of and assign daily tasks to other millwrights like plaintiff each day; record reflected that lead millwrights did not having hiring, firing, or disciplinary authority); Velazquez v. Devs. Diversified Realty Corp., 753 F.3d 265, 272–73 (1st Cir. 2014) (holding that harasser was not plaintiff's supervisor despite having certain responsibility to direct his work, as record supported conclusion that harasser lacked ability to fire or discipline plaintiff); see also EEOC v. AutoZone, Inc., 692 F. App'x 280, 283 (6th Cir. 2017) ("Townsel's ability to direct the victims' work at the store and his title as store manager do not make him the victims' supervisor for purposes of Title VII"; stating that harasser "could not fire, demote, promote, or transfer any employees").

743 F.3d 726, 740–41 (10th Cir. 2014); see also Wyatt v. Nissan N. Am., Inc., 999 F.3d 400, 413 (6th Cir. 2021) (holding there was an issue of fact regarding supervisory status because management had to take harasser's input on management decisions).

AutoZone, 692 F. App'x at 283.

Id. at 281, 283.

Id. at 283–84.

Id. at 283; see also Morrow v. Kroger Ltd. P'ship I, 681 F. App'x 377, 380–81 (5th Cir. 2017) (holding harasser was not plaintiff's supervisor, though he was responsible for scheduling employees and completing employee performance evaluations and was consulted about hiring decisions; stating that this evidence did not show harasser could "cause a tangible employment action as is required under Vance"). But see Mys v. Mich. Dep't of State Police, 886 F.3d 591, 600 (6th Cir. 2018) ("An employer is also vicariously liable for retaliation that a supervisor initiates against an employee by causing another actor, that might itself lack retaliatory animus, to take an adverse action against the employee.").

AutoZone, 692 F. App'x at 284 (citing Vance v. Ball State Univ., 570 U.S. 421, 423 (2013)).

Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 216–17 (3rd Cir. 2017) (holding that custodial foreman was plaintiff's supervisor, where he set hours for substitute custodians like plaintiff and thus "had the authority to cause a significant change in [plaintiff]'s benefits by assigning her no hours, thereby eliminating her take-home pay"); Schlosser v. VRHabilis, LLC, 113 F.4th 674, 689 (6th Cir. 2024) (holding that team leader qualified as supervisor because he reassigned plaintiff to tasks with less pay).

Ray v. Int'l Paper Co., 909 F.3d 661, 668 (4th Cir. 2018) ("The record before us could support a jury determination that Ray suffered a tangible employment action when McDowell eliminated her voluntary overtime work.").

Kramer v. Wasatch Cnty. Sheriff's Off., 743 F.3d 726, 742–43 (10th Cir. 2014) (stating that a harasser could still qualify as a supervisor "under apparent authority principles," in which the employer gives the appearance that it has given a second party power to act on its behalf, and which causes a third party to "reasonably and prudently" believe that the second party has such power).

42 U.S.C. § 2000e-2(a)(1) ("It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate 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.").

523 U.S. 75, 80 (1998).

42 U.S.C. § 2000e-2(a)(1) ("It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate 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.").

Oncale, 523 U.S. at 77.

Id. at 80.

Id. at 79.

Id. at 80.

Id.

Id. The Court emphasized, however, that harassment is not "automatically discrimination because of sex merely because the words used have sexual content or connotations." Id.

Id. at 81 (stating, for example, that "[a] professional football player's working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field—even if the same behavior would reasonably be experienced as abusive by the coach's secretary (male or female) back at the office").

Id. at 81–82.

Clare Diefenbach, Same-Sex Sexual Harassment after Oncale: Meeting the Because of...Sex Requirement, 22 Berk. J. of Gender, L. & Justice 42, 49 n.58 (2007).

Id. Other cases applied multiple routes or did not apply any specific Oncale route.

Id. at 70.

Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 121 (4th Cir. 2021) ("Oncale does not limit the evidentiary routes by which a plaintiff may prove same-sex sexual harassment to those the Court described."); EEOC v. Boh Bros. Constr. Co., LLC, 731 F.3d 444, 455 (5th Cir. 2013) ("Every circuit to squarely consider the issue has held that the Oncale categories are illustrative, not exhaustive, in nature."); see also Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 264 (3d Cir. 2001) ("Based on the facts of a particular case and the creativity of the parties, other ways in which to prove that harassment occurred because of sex may be available." (citing Shepherd v. Slater Steels Corp., 168 F.3d 998, 1009 (7th Cir. 1999)).

Cherry v. Shaw Coastal, Inc., 668 F.3d 182, 187–88 (5th Cir. 2012).

Id. See also Johnson v. Dollar Gen. Corp., 104 F.E.P. 532 (E.D. Tenn. 2008) (holding that where supervisor made sexually explicit comments, touched plaintiff, and said he was "every gay person's dream" there was sufficient evidence for a jury to find that the harassment was motivated by sexual desire and because of the plaintiff's sex).

396 F.3d 1088, 1093–94 (10th Cir. 2005), overruled on other grounds as recognized in EEOC v. Picture People, Inc., 684 F.3d 981 (10th Cir. 2012).

Id. at 1098.

Id.

Wade v. Automation Pers. Servs., 612 F. App'x 291, 294 (6th Cir. 2015).

Id. at 297–98 (stating that the plaintiff had only offered "conclusory allegations and unsupported speculation" to support her claim that the harassment was based on her sex). The court held as such despite the allegation that the supervisor had said at one point that if she "were a lesbian, she would date her lesbian friend." Id. at 296. But see Nathan v. Great Lakes Water Auth., 992 F.3d 557, 567 (6th Cir. 2021) (holding that female managers' remarks about plaintiff's breasts and bra were based on sex and could, if frequent, amount to sex-based harassment, as the "sex-specific and derogatory nature of these comments means that the sex of the harassers does not change the outcome of this case").

See Lord v. High Voltage Software, Inc., 839 F.3d 556, 559 (7th Cir. 2016) (finding insufficient evidence that harassment was because of sex, where a male plaintiff claimed his male coworkers harassed him by making comments with sexual connotations about the plaintiff and a female coworker, and by unwanted physical contact between his legs or on his buttocks four times); Betz v. Temple Health Sys., 659 F. App'x 137, 145 (3d Cir. 2016) (affirming district court's grant of a motion to dismiss for failure to state a claim on same-sex sexual harassment claim where female plaintiff alleged work environment was sexually offensive, as other female nurses would "regularly 'joke' with each other by licking, groping, making lewd gestures, or pretending to grope each other's breasts and genitals").

See, e.g., Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 342 (7th Cir. 2017); Jespersen v. Harrah's Operating Co., 444 F.3d 1104, 1111 (9th Cir. 2006); Smith v. City of Salem, 378 F.3d 566, 570 (6th Cir. 2004).

490 U.S. 228, 241–42 (1989) (plurality opinion), superseded by statute on other grounds as stated in Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media, 589 U.S. 327, 337 (2020).

EEOC v. Boh Bros. Constr. Co., LLC, 731 F.3d 444, 459–60 (5th Cir. 2013).

Id. at 457; see also Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 120 (4th Cir. 2021) (concluding that Oncale and Price Waterhouse support a cause of action for harassment based on "failure to conform to sex stereotypes"); Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 291 (3d Cir. 2009) (holding that plaintiff's "sex stereotyping" claim survived summary judgment, where plaintiff was harassed for his "effeminate" traits and called nicknames like "Rosebud"); Nichols v. Azteca Rest. Enter., Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that verbal abuse of plaintiff accusing him of "walking and carrying his tray 'like a woman'" stated a valid claim under Title VII).

Bostock v. Clayton County, 590 U.S. 644, 651–52 (2020).

It is unclear if Bostock's interpretation of Title VII extends to employees who are discriminated against because they are nonbinary or bisexual. See Howse v. Topre Am. Corp., No. 3:24-CV-00034, 2025 WL 2174857, at *3 (M.D. Tenn. July 31, 2025) ("[T]he rationale of the [Bostock] decision provides no basis to conclude that discrimination against men who are attracted to men is impermissibly 'based on sex,' but discrimination against men who are attracted to men and women is not."); Elizabeth Gross, Where Is the "B" In Bostock? An Overview of the Supreme Court's Expansion of Title VII's Protection to LGBTQ+ Employees and the Impact of the Supreme Court's Exclusion of Bisexual, Nonbinary, and Other Minority Sexual Identities and Gender Orientation: Bostock v. Clayton County, 48 W. St. L. Rev. 23, 41 (2021); Nancy C. Marcus, Bostock v. Clayton County and the Problem of Bisexual Erasure, 115 Nw. U.L. Rev. Online 223, 228 (2020).

Newbury v. City of Windcrest, 991 F.3d 672, 677 (5th Cir. 2021).

Kilpatrick v. HCA Hum. Res., LLC, No. 22-5307, 2023 WL 1961223, at *4 (6th Cir. Feb. 13, 2023).

Id.

Boshaw v. Midland Brewing Co., 32 F.4th 598, 601 (6th Cir. 2022).

Id. at 606.

Copeland v. Ga. Dep't of Corr., 97 F.4th 766, 770 (11th Cir. 2024).

Id. at 771.

Id.

Id.

Id. at 777.

Id. at 778. The plaintiff was attacked and injured by an inmate. Id.

Bostock v. Clayton County, 590 U.S. 644, 673 (2020) (stating that Title VII bars firing "men who do not behave in a sufficiently masculine way around the office").

998 F.3d 111, 121 (4th Cir. 2021).

Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 115 (4th Cir. 2021).

Id. at 121.

Id. at 681.

See Braidwood Mgmt., Inc. v. EEOC, 70 F.4th 914, 921, 937 (5th Cir. 2023) (deciding that the Religious Freedom Restoration Act required defendant be given an exemption to Title VII protections for sexual orientation and gender identity).

See Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80 (1998); Williams v. Gen. Motors Corp., 187 F.3d 553, 565 (6th Cir. 1999) ("Any unequal treatment of an employee that would not occur but for the employee's gender may, if sufficiently severe or pervasive under the Harris standard, constitute a hostile environment in violation of Title VII.").

Passananti v. Cook County, 689 F.3d 655, 664 (7th Cir. 2012).

Hall v. Gus Constr. Co., 842 F.2d 1010, 1014 (8th Cir. 1988).

Passananti, 689 F.3d at 664.

Id.; Williams, 187 F.3d at 559 (observing that, among other things, a worker threw boxes at plaintiff).

Hall, 842 F.2d at 1012, 1015.

Passananti, 689 F.3d at 665; Sharp v. S&S Activewear, L.L.C., 69 F.4th 974, 979 (9th Cir. 2023) (holding sexual harassment claim can be based on "use of sexually degrading, gender-specific epithets").

Passananti, 689 F.3d at 667.

Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 789 (7th Cir. 2007) (holding plaintiff could make out a harassment claim where her supervisor "made at least eighteen sexist or sexual comments in less than a year's time").

42 U.S.C. § 2000e(k).

Zisumbo v. McCleod USA Telecomms. Servs., Inc., 154 F. App'x 715, 726 (10th Cir. 2005).

Bergstrom-Ek v. Best Oil Co., 153 F.3d 851, 854–55 (8th Cir. 1998) (discussing plaintiff's allegation that employer told her at least six times to get an abortion, calling her at home and offering to pay for it); Hercule v. Wendy's of N.E. Fla., Inc., No. 9:10-CV-80248, 2010 WL 1882181, at *1 (S.D. Fla. May 11, 2010) (describing allegation that manager encouraged plaintiff to have an abortion).

CRS Report R46821, Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers, by April J. Anderson (2023).

"A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Ellerth, 524 U.S. at 761. Federal courts of appeals use the Ellerth definition in evaluating quid pro quo claims. See, e.g., La Day v. Catalyst TechnologyTech., Inc., 302 F.3d 474, 482 (5th Cir. 2002) (analyzing quid pro quo claim and applying the Ellerth definition of "tangible employment action" to plaintiff's claim alleging he was denied a promotion for refusing his supervisor's sexual advances). See; see also, e.g., Quantock v. Shared Marketing ServicesMktg. Servs., Inc., 312 F.3d 899, 902, 903, n.1 (7th Cir. 2002) (noting that it would not disturb the lower court's dismissal of plaintiff's upholding dismissal of quid pro quo claim, as because plaintiff's transfer one week after refusing her supervisor's repeated sexual propositionswas not a tangible employment action, as it was a temporary change in her job responsibilities rather than a "'significant diminishment' of material responsibilities," and thus did not constitute a tangible employment action).

See, e.g., Hulsey v. Pride Rests., LLC, 367 F.3d at1238, 1245, n.4, 1247 (11th Cir. 2004) (addressing Title VII quid pro quo claim in which plaintiff, a waitress, alleged that her supervisor fired her for refusing to submit to his sexual advances; also noting that quid pro quo is a term courts frequently used, prior to the Supreme Court's Ellerth decision, to refer to claims "where a benefit of employment was tied to a demand for sexual favors" n.4, 1247 (11th Cir. 2004); Hernandez-Loring v. Universidad Metropolitana, 233 F.3d 49, 50, 52-54 (1st Cir. 2000) (plaintiff alleged that she was denied tenure and promotion to full professor for refusing sexual advances from her supervisor, the head of the committee responsible for tenure recommendations; holding that district court erred in granting summary judgment on plaintiff's quid pro quo claim).

See, e.g., Pinkerton v. ColoradoColo. Dep't of Transp., 563 F.3d 1052, 1059-–60 (10th Cir. 2009) (stating that to prevail on quid pro quo claim, plaintiff "must show that a reasonable jury could find [that her supervisor] conditioned concrete employment benefits on her submission to sexual conduct and had her fired when she did not comply"); La Day v. Catalyst Tech., Inc., 302 F.3d 474, 481 (5th Cir. 2002) (holding that to establish claim, "[t]he plaintiff must show that he suffered a 'tangible employment action' that 'resulted from his acceptance or rejection of his supervisor's alleged sexual harassment.'") (quoting Casiano v. AT&T Corp., 213 F.3d 278, 283 (5th Cir. 2000)); Hernandez-Loring, 233 F.3d at 52 ("Under Title VII, quid pro quo sexual harassment can be shown where a supervisor uses employer processes to punish a subordinate for refusing to comply with sexual demands.").

See, e.g., Cram v. Lamson & Sessions Co., 49 F.3d 466, 473 (8th Cir. 1995) (among prima facie elements for establishing a Title VII quid pro quo claim, requiring evidence of either a refusal that results in a tangible job detriment or submission as an implied or express condition of receiving job benefits); Highlander v. K.F.C. Nat'l Mgmt. Co., 805 F.2d 644, 648 (6th Cir. 1986) (same). SeeHuang v. Ohio State Univ., 116 F.4th 541, 560 (6th Cir. 2024); see also Molnar v. Booth, 229 F.3d 593, 602-603–03 (7th Cir. 2000) (discussing "classic" quid pro quo jury instruction explainedexplaining that such harassment "occurs when a supervisor uses his supervisory authority either by making submission to requests for sexual favors a term or condition of the individual's employment, or by making submission or rejection the basis for decisions affecting the individual.").

See, e.g., Henthorn v. Capitol Commc'ns, Inc. 359 F.3d 1021, 1027 (8th Cir. 2004) ("A plaintiff in that situation need not prove that the offensive conduct is severe or pervasive because any carried-out threat is itself deemed an actionable change in the terms or conditions of employment.") (citing Ellerth, 524 U.S. at 753-54).

Ellerth, 524 U.S. at 753-54 ("When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands, he or she establishes that the employment decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VII").

Hulsey, 367 F.3d at 1245 (explaining that when an employee's refusal to submit to a supervisor's sexual demands results in a tangible employment action taken against her, an employer is liable under Title VII) (citing Ellerth, 524 U.S. at 765); Wyatt v. Hunt Plywood Co., Inc., 297 F.3d 405, 409 (5th Cir. 2002) ("In a quid pro quo suit, proof that a tangible employment action resulted from a supervisor's sexual harassment renders the employer vicariously liable, and no affirmative defense can be asserted."); Molnar, 229 F.3d at 602-603 (instruction given to jury was a "classic" quid pro quo instruction, where jury was instructed that the employer "was strictly liable for quid pro quo harassment").

See, e.g., La Day, 302 F.3d at 482-83 (concluding that plaintiff failed to establish a quid pro quo claim given the absence of evidence that he was denied a promotion for refusing to submit to his supervisor's sexual advances; explaining that "[i]f the plaintiff fails to provide sufficient evidence of quid pro quo harassment, he must prove the existence of hostile environment harassment," and proceeding to analyze whether the plaintiff's allegations were sufficient to establish a "hostile work environment" claim).

"); Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1162-–64 (9th Cir. 2003) (describing allegations that plaintiff, a professor's assistant, alleged that she was forced to engage in sexual intercourse with her supervisor, and that "there was an implication that her continued employment depended on her complying with the professor's unwelcome sexual advances"; for example, she alleged that when she initiallyfirst rebuffed his sexual behavior and advances, her supervisor gave her a negative performance evaluation and was "'supercritical'" of her work, but thereafterlater when she submitted to his sexual advances, she received an evaluation that was "excellent").

Jin v. Metro. Life Ins. Co., 310 F.3d 84, 88-89 (2d Cir. 2002) (evidence at trial showed that supervisor repeatedly threatened to fire plaintiff if she did not accede to his sexual demands).

Holly D., 339 F.3d at 1167-1173 (9th Cir. 2003) (holding that a tangible employment action "occurs when the supervisor threatens the employee with discharge and, in order to avoid the threatened action, the employee complies with the supervisor's demands"; explaining the rationale for its holding, including that such conduct "directly involves the supervisor's ability to impose upon the employee the ultimate employment penalty—discharge—or to confer on her the ultimate employment benefit—the retention of her job."); Jin, 310 F.3d at 98 (reaffirming earlier Second Circuit precedent holding that an employer is strictly liable "when a supervisor bases decisions affecting the terms and conditions of a subordinate's employment on the submission to sexual demands").

310 F.3d 84, 98-99 (2d Cir. 2002).

Holly D., 339 F.3d at 88-89.

Jin, 310 F.3d at 97.

Id. at 98 (quoting Ellerth, 524 U.S. at 762).

Id. See also Holly D., 339 F.3d at 1168-69 (explaining how its holding comports with the Supreme Court's Faragher and Ellerth decisions, as the rationale in those cases for strict liability is based on a "supervisor's exercise of [] authority to make critical employment decisions on behalf of his employer" when harassing an employee, and that this same rationale "holds true" in submission cases because a supervisor has told the plaintiff he will fire her if she refuses to comply with his demands and thereby coerces sexual acts by using the authority given to him by the employer).

The Court's Faragher and Ellerth decisions did not concern Title VII claims asserting a submission theory of liability for harassment by a supervisor, but rather, allegations of harassment by supervisors, absent facts that the plaintiff submitted to any demands for sex or that the plaintiff was subject to a tangible employment action for refusing to accede to such demands. See Faragher, 524 U.S. at 780-83 (plaintiff alleged her

Starnes v. Butler Cnty. Ct. of Common Pleas, 50th Jud. Dist., 971 F.3d 416, 427 (3d Cir. 2020) (Considering sex discrimination under Title VII and an equal protection theory and stating allegation that "after they stopped having sex, Starnes alleged that she was denied many terms and conditions of her employment").

Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 329 n. 6 (4th Cir. 2012) (recognizing a "submission theory of liability" but stating that it need not address that issue as it concluded that district court's grant of summary judgment on plaintiff's claim was inappropriate on other grounds); Lutkewitte v. Gonzales, 436 F.3d 248, 254 (D.C. Cir. 2006) (explaining that the "Supreme Court has not addressed whether an employer can be held strictly liable when an employee submits to her supervisor's sexual demands because she reasonably believes that her benefits or continued employment are conditioned upon her acquiescence" and stating that it need not decide the legal question given its resolution of the case on other grounds); see also Hicks v. Gates Rubber Co., 928 F.2d 966, 968 (10th Cir. 1991) (rejecting quid pro quo claim, stating employee was "not required to submit to sexual conduct or harassment to keep her job"); Newton v. Cadwell Labs., 156 F.3d 880, 883 (8th Cir. 1998) (agreeing with district court that plaintiff had not suffered a tangible employment action for rejecting supervisor's advances after consensual affair had ended; stating that plaintiff admitted that her supervisor "never conditioned her continued employment on submission to [his] sexual advances").

Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 329 n. 6 (4th Cir. 2012) (noting "submission theory of liability," but stating that it need not address that issue as it concluded that district court's grant of summary judgment on plaintiff's claim was inappropriate on other grounds); Lutkewitte v. Gonzales, 436 F.3d 248, 254 (D.C. Cir. 2006) (explaining that the "Supreme Court has not addressed whether an employer can be held strictly liable when an employee submits to her supervisor's sexual demands because she reasonably believes that her benefits or continued employment are conditioned upon her acquiescence," and stating that it need not decide the legal question given its resolution of the case on other grounds). See also Newton v. Cadwell Labs., 156 F.3d 880, 883 (8th Cir. 1998) (agreeing with district court that plaintiff had not suffered a tangible employment action for rejecting supervisor's advances after consensual affair had ended; noting that plaintiff admitted that her supervisor "never conditioned her continued employment on submission to [his] sexual advances").

Black's Law Dictionary (7th ed. 1999) (defining constructive discharge as "a termination of employment brought about by making the employee's working conditions so intolerable that the employee feels compelled to leave").

See, e.g., Henthorn v. Cap. Commc'ns, Inc. 359 F.3d 1021, 1027 (8th Cir. 2004) ("A plaintiff in that situation need not prove that the offensive conduct is severe or pervasive because any carried-out threat is itself deemed an actionable change in the terms or conditions of employment." (citing Ellerth, 524 U.S. at 753–54).

Ellerth, 524 U.S. at 753–54.

See, e.g., La Day v. Catalyst Tech., Inc., 302 F.3d 474, 482–83 (5th Cir. 2002) (concluding that plaintiff failed to establish a quid pro quo claim given the lack of evidence that he was denied a promotion for refusing to submit to his supervisor's sexual advances; explaining that "[i]f the plaintiff fails to provide sufficient evidence of quid pro quo harassment, he must prove the existence of hostile environment harassment," and proceeding to analyze whether the plaintiff's allegations were sufficient to establish a "hostile work environment" claim).

Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 1245 (11th Cir. 2004) (explaining that when an employee's refusal to submit to a supervisor's sexual demands results in a tangible employment action taken against her, an employer is liable under Title VII (citing Ellerth, 524 U.S. at 765)); Wyatt v. Hunt Plywood Co., 297 F.3d 405, 409 (5th Cir. 2002) ("In a quid pro quo suit, proof that a tangible employment action resulted from a supervisor's sexual harassment renders the employer vicariously liable, and no affirmative defense can be asserted."); Molnar, 229 F.3d at 602–03 (stating that instruction given to jury was a "classic" quid pro quo instruction, where jury was instructed that the employer "was strictly liable for quid pro quo harassment").

Constructive Discharge, Black's Law Dictionary (12th ed. 2024) (defining constructive discharge as an "employer's creation of working conditions that leave a particular employee or group of employees little or no choice but to resign").

542 U.S. 129, 133 (2004). Appellate courts have since applied the constructive discharge theory to other claims of harassment, such as age-based harassment, Stamey v. Forest River, Inc, 37 F.4th 1220, 1225 (7th Cir. 2022), and racial harassment, Chislett v. N.Y.C. Dep't of Educ., 157 F.4th 172, 193 (2d Cir. 2025).

Suders, 542 U.S. at 135–36.

Id. at 135-136.

Id. at 139. As explained above, the Ellerth/Faragher defense represents a complete defense to liability wherewhen the defendant can establish it, so its applicability to constructive discharge may be significant). 239.

. Id. at 146-47.

Id. at 147.

Id. at 147-48.

See supra "The 'Severe or Pervasive' Standard." See See supra section "Federal Courts' Application of the Harris Factors," pp. 3-7. See also Mandel v. M&Q Packaging Corp., 706 F.3d 157, 170169–70 (3d Cir. 2013) ("In determining whether an employee was forced to resign, we consider a number of factors, including whether the employee was threatened with discharge, encouraged to resign, demoted, subject to reduced pay or benefits, involuntarily transferred to a less desirable position, subject to altered job responsibilities, or given unsatisfactory job evaluations."); Easterling v. Sch. Bd. of Concordia ParishPar., 196 F. App'x 251, 253 (5th Cir. 2006); Plautz v. Potter, 156 F. App'x 812, 818 (6th Cir. 2005).

Suders, 542 U.S. at 152.

See, e.g.,

Pa. State Police v. Suders, 542 U.S. 129, 152 (2004).

See, e.g., Fincher v. Depository TrustTr. & Clearing Corp., 604 F.3d 712, 725 (2d Cir. 2010).

Bryant v. Jones, 575 F.3d 1281, 1298 (11th Cir. 2009) ("Establishing a constructive discharge claim is a more onerous task than establishing a hostile work environment claim.").

Suders, 542 U.S. at 134.

Id. at 148.

Id. at 150 (quoting Reed v. MBNA Mktg. Sys., Inc., 333 F.3d 27, 33 (1st Cir. 2003)).

Id.

Id. (citing Robinson v. Sappington, 351 F.3d 317, 333–36 (7th Cir. 2003)).

Id.

Chapp v. 202 Lake St. Partners, LLC, No. 1:23-CV-416, 2025 WL 1664644, at *6 (W.D. Mich. June 12, 2025).

Id. at *9.

No. 23-12414, 2024 WL 1174398, at *5 (11th Cir. Mar. 19, 2024).

Id.

Pa. State Police v. Suders, 542 U.S. 129, 147 n.8 (2004).

Mallinson-Montague v. Pocrnick, 224 F.3d 1224, 1237 (10th Cir. 2000).

42 U.S.C. § 2000e-3(a).

See, e.g., Foster v. Univ. of Md. E. Shore, 787 F.3d 243, 254 (4th Cir. 2015) (holding that evidence would allow reasonable jury to conclude that the defendant fired the plaintiff in retaliation for reporting that she had been sexually harassed, and for her later complaints of ongoing retaliation after); Magyar v. Saint Joseph Reg'l Med. Ctr., 544 F.3d 766, 773–74 (7th Cir. 2008) (holding that evidence created a triable issue that employer restructured plaintiff's job and ultimately fired her in retaliation for reporting harassment by her coworker, and for reporting concern about how the hospital was addressing her harassment complaint).

See, e.g., Kelly v. Howard I. Shapiro & Assocs. Consulting Eng'rs, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (stating that elements of prima facie case include evidence: that the plaintiff engaged in protected activity, the employer knew about that activity, the employee suffered a materially adverse action, and causation between the protected activity and that adverse action); Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 46 (1st Cir. 2010) (listing prima facie elements as engaging in protected activity, suffering an adverse employment action, and showing the adverse action was causally connected to the protected activity).

Suders, 542 U.S. at 134.

Id. at 148.

Id. at 150 (quoting Reed v. MBNA Marketing Systems, Inc., 333 F.3d 27, 33 (1st Cir. 2003)).

Id.

Id. (citing Robinson v. Sappington, 351 F.3d 317, 333-36 (7th Cir. 2003)).

Id.

Whitten v. Fred's, Inc., 601 F.3d 231, 236-37 (4th Cir. 2010).

Id. at 237.

Id. at 249-50.

Id. at 250.

Suders, 542 U.S. at 147, n.8.

42 U.S.C. § 2000e-2(a)(1) ("It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate 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.").

523 U.S. 75, 80 (1998).

42 U.S.C. § 2000e-2(a)(1) ("It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate 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.").

Oncale, 523 U.S. at 77.

Id. at 80.

Id. at 79.

Id. at 80.

Id.

Id.

EEOC v. Boh Bros. Constr. Co., LLC, 731 F.3d 444, 455 (5th Cir. 2013) ("Every circuit to squarely consider the issue has held that the Oncale categories are illustrative, not exhaustive, in nature.") (citing cases). See also Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 264 (3d Cir. 2001) ("Based on the facts of a particular case and the creativity of the parties, other ways in which to prove that harassment occurred because of sex may be available.") (citing Shepherd v. Slater Steels Corp., 168 F.3d 998, 1009 (7th Cir. 1999)).

Oncale, 523 U.S. at 81 (stating, by way of example, that "[a] professional football player's working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field—even if the same behavior would reasonably be experienced as abusive by the coach's secretary (male or female) back at the office").

Id. at 81-82.

Clare Diefenbach, Same-Sex Sexual Harassment after Oncale: Meeting the Because of...Sex Requirement, 22 Berk. J. of Gender, L. & Justice 42, 49 n.58 (2013).

Id. Other cases applied multiple routes or did not apply any specific Oncale route.

Id. at 70.

Cherry v. Shaw Coastal, Inc., 668 F.3d 182, 187-88 (5th Cir. 2012).

Id. See also Johnson v. Dollar Gen. Corp., 104 F.E.P. 532 (E.D. Tenn. 2008) (holding that where supervisor made sexually explicit comments, touched plaintiff, and said he was "every gay person's dream" there was sufficient evidence for a jury to find that the harassment was motivated by sexual desire and because of the plaintiff's sex).

396 F.3d 1088, 1093-94 (10th Cir. 2005).

Id. at 1098.

Id.

Wade v. Automation Pers. Servs., 612 F. App'x 291, 294 (6th Cir. 2015).

Id. at 297-98 (stating that the plaintiff had only offered "conclusory allegations and unsupported speculation" to support her claim that the harassment was based on her sex). The court held as such, notwithstanding the allegation that the supervisor had said at one point that if she "were a lesbian, she would date her lesbian friend." Id. at 296. The court found this evidence insufficient to demonstrate that the supervisor had acted out of sexual desire. Id.

See Lord v. High Voltage Software, Inc., 839 F.3d 556, 559 (7th Cir. 2016) (finding insufficient evidence that harassment was because of sex, where a male plaintiff claimed his male co-workers harassed him by making comments with sexual connotations about the plaintiff and a female co-worker, and by unwanted physical contact between his legs or on his buttocks on four separate occasions); Betz v. Temple Health Sys., 659 F. App'x 137, 145 (3d Cir. 2016) (affirming district court's grant of a motion to dismiss for failure to state a claim on same-sex sexual harassment claim where female plaintiff alleged work environment was sexually offensive, as other female nurses would "regularly 'joke' with each other by licking, groping, making lewd gestures, or pretending to grope each other's breasts and genitals").

490 U.S. 228, 241-42 (1989) (plurality opinion).

Boh Bros., 731 F.3d at 459-460.

Id. at 457. See also Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 291(3d Cir. 2009) (holding that plaintiff's "sex stereotyping" claim survives summary judgment, where plaintiff was harassed for his "effeminate" traits and called nicknames like "Rosebud"); Nichols v. Azteca Restaurant Enter., Inc., 256 F.3d 864, 874 (9th Cir. 2001) (holding that verbal abuse of plaintiff that accused him of "walking and carrying his tray 'like a woman" was valid claim under Title VII).

Prowel, 579 F.3d at 291.

Compare Evans v. Ga Reg'l Hosp., 850 F.3d 1248 (11th Cir. 2017) (holding that Title VII does not cover sexual orientation or "gender non-conformity" discrimination) (citing cases from other circuits) cert denied 138 S. Ct. 557 (2017); and Prowel, 579 F.3d at 291-92 (while district court correctly noted that record was replete with evidence of harassment based on sexual orientation, which did not violate Title VII, record also contained evidence of harassment based on plaintiff's failure to conform to gender stereotypes, which is a valid claim under Title VII), with Hively v. Ivy Tech Cmty. College of Ind., 853 F.3d 339, 351 (7th Cir. 2017) (en banc) (concluding that "the common-sense reality [is] that [it is] actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex"); and Zarda v. Altitude Express, No. 15-3775, 2018 U.S. App. LEXIS 4608, at *27 - *28 (2d. Cir. Feb. 26, 2018) (en banc) (holding that "sexual orientation discrimination constitutes a form of discrimination 'because of . . . sex,' in violation of Title VII.")

See, e.g., Ellingsworth v. Hartford Fire Ins. Co., 247 F. Supp. 3d 546, 554 (E.D.P.A. 2017) (allowing female plaintiff's sexual harassment claim to go forward when plaintiff's complaint stated that plaintiff's female supervisor harassed her because of her dress and appearance; the fact that the supervisor had prejudice against same-sex orientation did not affect plaintiff's claim that she was discriminated against for failing to "conform to a traditionally feminine demeanor and appearance").

42 U.S.C. 2000e-3(a). The statute identifies two types of employee conduct against which an employer cannot retaliate: an employee's opposition to an unlawful employment practice under Title VII and an employee's participation "in any manner" in an investigation, proceeding, or hearing under Title VII. See id. See generally, Crawford v. Metro. Gov't of Nashville and Davidson Cty., Tenn., 555 U.S. 271, 274 (2009) (explaining that Title VII's anti-retaliation provision has two clauses known as the opposition clause and participation clause) (citing 42 U.S.C. § 2000e-3(a)).

See id.; Crawford, 555 U.S. at 273 ("Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq. (2000 ed. and Supp. V), forbids retaliation by employers against employees who report workplace race or gender discrimination."). See also 42 U.S.C. 2000e-2(a) (making it unlawful for an employer to "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate 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").

See, e.g., Foster v. Univ. of Maryland-Eastern Shore, 787 F.3d 243, 254 (4th Cir. 2015) (holding that evidence would allow reasonable jury to conclude that the defendant fired the plaintiff in retaliation for reporting that she had been sexually harassed, and for her subsequent complaints of ongoing retaliation thereafter); Maygar v. Saint Joseph Reg'l Med. Ctr., 544 F.3d 766, 773-74 (7th Cir. 2008) (holding that evidence established a prima facie case and created a triable issue that employer restructured plaintiff's job and ultimately fired her in retaliation for reporting harassment by her co-worker, and for reporting concern about how the hospital was addressing her harassment complaint).

See, e.g., Kelly v. Howard I. Shapiro & Assocs. Consulting Eng'rs, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (elements of prima facie case include evidence: that the plaintiff engaged in protected activity, the employer was aware of that activity, the employee suffered a materially adverse action, and causation between the protected activity and that adverse action); Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 46 (1st Cir. 2010) (listing prima facie elements as: engaging in protected activity, suffering an adverse employment action, and showing the adverse action was causally connected to the protected activity).

See Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015-16 (10th Cir. 2004) ("Protected opposition can range from filing formal charges to voicing informal complaints to superiors."). See generally Crawford, 555 U.S. at 276-27816 (10th Cir. 2004) ("Protected opposition can range from filing formal charges to voicing informal complaints to superiors."). See generally Crawford v. Metro. Govt. of Nash. and Davidson Cnty., 555 U.S. 271, 276–78 (2009) (discussing definitions of "oppose" and describing examples; also, and explaining that reasonable jurors could conclude that plaintiff's report was in opposition to the harasser's conduct "if for no other reason than the point argued by the Government and explained by an EEOC guideline: 'When an employee communicates to her employer a belief that the employer has engaged in . . . a form of employment discrimination, that communication' virtually always 'constitutes the employee's opposition to the activity.'") (quoting Brief for United States as Amicus Curiae 9 (citing 2 EEOC Compliance Manual §§ 8–II–B(1), (2), p. 614:0003 (Mar.2003)).

SeeAmicus Curiae 9, Crawford, 555 U.S. 271 (No. 06-1595)).

See, e.g., Merritt v. Dillard Paper Co., 120 F.3d 1181, 1186 (11th Cir. 1997) (holding that plaintiff, by giving deposition testimony in a Title VII proceeding, engaged in protected participation under Title VII).

EEOC v. Rite Way Service, Inc., 819 F.3d 235, 237 (5th Cir. 2016) ("It has long been the law in this and other circuits that a plaintiff contending that she was retaliated against for proactively reporting employment discrimination need not show that the discrimination rose to the level of a Title VII violation, but must at least show a reasonable belief that it did."); Westendorf v. West Coast Contractors of Nevada, Inc., 712 F.3d 417, 422 (9th Cir. 2013) (stating that "[a]n employee engages in protected activity when she opposes an employment practice that either violates Title VII or that the employee reasonably believes violates that law."); Maygar, 544 F.3d at 771 (for plaintiff to prevail on her retaliation claim, she "need not prove that the underlying conduct she perceived as sexual harassment actually was serious enough to constitute a Title VII violation. Instead, she need only show that, when instituting her grievance, she had a 'sincere and reasonable belief' that she was opposing an unlawful practice.") (quoting Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 706–07 (7th Cir.2000)); Kelly, 716 F.3d at 14 (explaining that an employee's complaint may constitute protected opposition so long as the employee had "'a good faith, reasonable belief that [she] was opposing an employment practice made unlawful by Title VII'") (quoting McMenemy v. City of Rochester, 241 F.3d 279, 285 (2d Cir.2001)).

See, e.g., Rite Way, 819 F.3d at 242 (stating that "the reasonable belief standard recognizes there is some zone of conduct that falls short of an actual violation but could be reasonably perceived to violate Title VII").

See, e.g., Greene v. A. Duie Pyle, Inc., 170 F. App'x 853, 56 (4th Cir. 2006) (dismissing retaliation claim on the basis that., Merritt v. Dillard Paper Co., 120 F.3d 1181, 1185 (11th Cir. 1997) (holding that plaintiff, by giving deposition testimony in a Title VII proceeding, engaged in protected participation under Title VII).

Crawford, 555 U.S. at 273–80 (2009).

Id. at 273–74.

Id. at 274.

Abbott v. Crown Motor Co., 348 F.3d 537, 543 (6th Cir. 2003).

Questions and Answers: Enforcement Guidance on Retaliation and Related Issues, EEOC (Aug. 26, 2016), https://www.eeoc.gov/laws/guidance/questions-and-answers-enforcement-guidance-retaliation-and-related-issues [https://perma.cc/JS35-WDY2] ("EEOC's view is that this extends to participation in an employer's internal EEO complaint process, even if a charge of discrimination has not yet been filed with the EEOC.").

Crawford, 555 U.S. at 276, 280 (explaining that because the plaintiff's conduct "is covered by the opposition clause, we do not reach her argument that the Sixth Circuit misread the participation clause as well.").

See, e.g., Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 49 (2d Cir. 2012) ("Every Court of Appeals to have considered this issue squarely has held that participation in an internal employer investigation not connected with a formal EEOC proceeding does not qualify as protected activity under the participation clause."); Hatmaker v. Mem'l Med. Ctr., 619 F.3d 741, 747 (7th Cir. 2010) (holding that an employee's participation in a "purely internal investigation" is not an investigation, proceeding, or hearing under Title VII's participation clause, but taking no position on "whether participation in an internal investigation begun after a charge is filed with the EEOC should be treated" as protected participation); Hamade v. Valiant Gov't Servs., LLC, 807 F. App'x 546, 550 (6th Cir. 2020) (holding defense contractor employee's participation in an internal Army discrimination investigation was not "participation" under Title VII).

Merritt v. Dillard Paper Co., 120 F.3d 1181, 1187 (11th Cir. 1997).

EEOC v. Rite Way Serv., Inc., 819 F.3d 235, 237 (5th Cir. 2016); Westendorf v. W. Coast Contractors of Nev., Inc., 712 F.3d 417, 422 (9th Cir. 2013); Magyar v. Saint Joseph Reg'l Med. Ctr., 544 F.3d 766, 771 (7th Cir. 2008); Kelly v. Howard I. Shapiro & Assocs. Consulting Eng'rs, P.C., 716 F.3d 10, 14 (2d Cir. 2013).

See, e.g., Rite Way, 819 F.3d at 242 (stating that "the reasonable belief standard recognizes there is some zone of conduct that falls short of an actual violation but could be reasonably perceived to violate Title VII").

See, e.g., Greene, 170 F. App'x at 855-56 (though plaintiff was fired at meeting in which he reported what he viewed as sexually offensive material in the workplace, and supervisor accused him of "'trying to cause trouble'" right before firing plaintiff, holding that retaliatory termination claim failed because plaintiff was unreasonable in believing that employer was acting unlawfully by permitting such material in the workplace).

–56 (holding that retaliatory termination claim failed because plaintiff was unreasonable in believing that employer was acting unlawfully by permitting material the plaintiff viewed as sexually offensive in the workplace, even though the plaintiff was fired at the meeting at which he reported the material).

See, e.g., Rite Way, 819 F.3d at 240-242–42 (concluding that the objectively reasonable belief test applies to a report made by an employee who witnessed what she believed to be unlawful sexual harassment, and who made that report in the course ofduring her employer's internal sexual harassment investigation).

Collazo, 617 F.3d at 43-44; 47-48 (

See, e.g., Summa v. Hofstra Univ., 708 F.3d 115, 126 (2d Cir. 2013) (holding plaintiff satisfied showing of objective reasonableness, as the conduct she reported "was close enough in severity" to conduct the court has previously held to constitute unlawful sexual harassment); Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1351 (11th Cir. 1999) (stating that an employee's objective reasonableness "must be measured against existing substantive law," and referring to "severe or pervasive" standard). See; see also, e.g., Tatt v. Atlanta Gas Light Co., 138 F. App'x 145, 147-–48 (11th Cir. 2005) (wherestating plaintiff reported conduct that her male co-workercoworker weekly pretended to unzip his pants and urinate on the office paperwork, evaluating that alleged conduct in light of its hostile work environment precedent; and holding that plaintiff did not hold objectively reasonable belief, as co-workercoworker's "acts were not close to being the kind of severe or pervasive conduct that constitutes actionable sexual harassment.").

See id.Summa, 708 F.3d at 126. But see Montell v. Diversified Clinical Servs., Inc., 757 F.3d 497, 504-–05 (6th Cir. 2014) (making determination of plaintiff's objective reasonableness without reference to its hostile work environment precedent; rather, reasoning that because comments directed at plaintiff were sexual in nature, and were made by her supervisor, such facts supported the conclusionshowed that plaintiff had a good faith, reasonable belief that she was reporting unlawful sexual harassment).

Maygar, 544 F.3d at 768, 771-72.

Id.

Henderson v. Waffle House, Inc., 238 F. App'x 499, 502-03 (11th Cir. 2007).

Reznik v. inContact, Inc., 18 F.4th 1257, 1262 (10th Cir. 2021) (holding racial harassment complaints were protected activities, even though the overseas employees who made them were excluded from Title VII's coverage).

Magyar v. Saint Joseph Reg'l Med. Ctr., 544 F.3d 766, 771–72 (7th Cir. 2008).

Id.; see also Wallace v. Performance Contractors, Inc., 57 F.4th 209, 225 (5th Cir. 2023) ("Though one sexual-harassment incident is sometimes not enough to establish a Title VII claim, sometimes it can be.") (holding that coworker's sexual comment and nonconsensual massaging were enough to support employee's sexual harassment complaint as reasonable).

Henderson v. Waffle House, Inc., 238 F. App'x 499, 502–03 (11th Cir. 2007).

Id. at 503 (citing Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)).

See, e.g., id.; Satterwhite v. City of Houston, 602 F. App'x 585, 588-–89 (5th Cir. 2015) (holding that plaintiff lacked objectively reasonable belief to show he engaged in protected opposition; stating that the plaintiff "acknowledges that [the] comment was a single and isolated incident. He could not have reasonably believed that this incident was actionable under Title VII, and therefore, it 'cannot give rise to protected activity.'"); Theriault v. Dollar Gen., 336 F. App'x 172, 174 (3rd Cir. 2009) ("Here, Theriault did not engage in protected activity because she complained only of a single incident that no reasonable person could have believed violated Title VII.").

532 U.S. 268, 269 (2001).

See Satterwhite, 602 F. App'x at 588, n.12 (citing Breeden, 532 U.S. at 271); Theriault, 336 F. App'x at 174 (citing Breeden, 532 U.S. at 269-70).

Theriault, 336 F. App'x at 174-75 (parenthetically describing the holding in Breeden) (citing 532 U.S. at 269-70). See also Satterwhite, 602 F. App'x at 588, n.12 (parenthetically describing Breeden as "dismissing a retaliation claim because '[n]o reasonable person could have believed that the single incident recounted above violated Title VII's standard.'").

Breeden, 532 U.S. at 271.

Id. at 269.

Id.

Id.

Id. at 271 (quoting Faragher, 524 U.S. at 788).

Id. at 271.

parenthetically describing Breeden as "dismissing a retaliation claim because '[n]o reasonable person could have believed that the single incident recounted above violated Title VII's standard.'" (quoting Breeden, 532 U.S. at 271)); Theriault, 336 F. App'x at 174–75 (citing Breeden, 532 U.S. at 269–70) (parenthetically describing the holding in Breeden).

Breeden, 532 U.S. at 271.

Id. at 269.

Id.

Id.

Id. at 271 (quoting Faragher, 524 U.S. at 788).

Id.

See Satterwhite, 602 F. App'x at 588 n.12 (citing Breeden, 532 U.S. at 271); Theriault, 336 F. App'x at 174 (citing Breeden, 532 U.S. at 269–70).

Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 284 (4th Cir. 2015) (en banc) ("In sum, under the standard that we adopt today with guidance from the Supreme Court, an employee is protected from retaliation for opposing an isolated incident of harassment when she reasonably believes that a hostile work environment is in progress, with no requirement for additional evidence that a plan is in motion to create such an environment or that such an environment is likely to occur. The employee will have a reasonable belief that a hostile environment is occurring if the isolated incident is physically threatening or humiliating.").

See, e.g., Rite WayEEOC v. Rite Way Serv., Inc., 819 F.3d at235, 243-44 (–44 (5th Cir. 2016) (stating that "opposition clause claims grounded in isolated comments are not always doomed to summary judgment" and holding that employee was objectively reasonable in believing conduct she reported was unlawful harassment, when employee reported that her supervisor looked at and commented on the buttocks of a female subordinate; notingstating that the conduct was from a supervisor to a subordinate and taking into accountconsidering "the context in which the comment was made," including that the employee who made the report had seen the same supervisor, a week earlier, pretend to slap the behind of the same female subordinate); Montell, 757 F.3d at 504 (plaintiff could have had an objectively reasonable belief when reporting her supervisor's comment to her that he was turned on by a woman in a red dress and heels while plaintiff was wearing a red dress and heels, as comment was sexual in nature and directed at a subordinate).

Montell, 757 F.3d at 504.

Id.

Id. at 504-.

Montell v. Diversified Clinical Servs., Inc., 757 F.3d 497, 504 (6th Cir. 2014).

Id.

Id. at 505.

548 U.S. 53, 56 (2006).