Understanding Workplace Harassment: EEOC Guidelines and Employer Liability

I. Introduction

A. Background

In the landmark 1986 case, Meritor Savings Bank, FSB v. Vinson, the U.S. Supreme Court established that workplace harassment constitutes unlawful discrimination under Title VII of the Civil Rights Act of 1964.¹ Despite this ruling over three decades ago, harassment remains a pervasive issue in workplaces today. From fiscal year (FY) 2018 to FY 2022, a significant thirty-five percent of employment discrimination charges received by the Equal Employment Opportunity Commission (EEOC) included allegations of harassment based on protected characteristics such as race, sex, disability, and others.² These statistics underscore the reality that unlawful harassment continues to affect many individuals across various professional environments. The “#MeToo” movement has amplified public awareness of sexual harassment in the workplace,³ while cases of racial harassment have also maintained a troubling prominence in recent years.⁴

While high-profile cases often highlight harassment based on sex, race, or national origin, it’s crucial to recognize that EEOC protections extend to harassment based on color, religion, disability, genetic information, and age (40 and over). This enforcement guidance, approved by the Commission, offers a comprehensive legal analysis of the standards for harassment and employer liability under the equal employment opportunity (EEO) statutes enforced by the EEOC.⁵ This document consolidates and supersedes previous EEOC guidance, including Compliance Manual Section 615: Harassment, Policy Guidance on Current Issues of Sexual Harassment (1990), and Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors (1999). It serves as a valuable resource for EEOC staff, other agencies involved in harassment claims, employers, employees, legal practitioners, and courts. It is important to note that this guidance is not intended to predetermine the outcome of any specific charge filed with the EEOC.

Each harassment claim filed with the EEOC is evaluated based on the specific facts, circumstances, and applicable law. This document is not an exhaustive legal treatise but rather a clarification of existing legal requirements and Commission policies.⁶ It aims to provide public clarity, not to establish new legal precedents.

B. Structure of this Guidance

This enforcement guidance is structured to clarify the evaluation process for determining whether harassment violates federal EEO law, focusing on three key components of a harassment claim:

Covered Bases and Causation: Was the alleged conduct based on a legally protected characteristic as defined by federal EEO statutes?
Discrimination Regarding Employment Terms, Conditions, or Privileges: Did the harassing conduct result in discrimination affecting a term, condition, or privilege of employment?
Liability: Is there a legal basis for holding the employer liable for the harassing conduct?

Furthermore, this guidance addresses the issue of systemic harassment and provides links to additional EEOC resources, including Promising Practices for Preventing Harassment, a tool designed to help employers proactively prevent and address harassment in their workplaces.

II. Covered Bases and Causation

Under EEO laws, harassment is only unlawful if it is rooted in an employee’s legally protected characteristics.

Federal EEO laws are designed to protect employees from workplace harassment when it is demonstrably based on one or more of their legally protected characteristics.⁷ Section II.A. of this guidance specifies these legally protected characteristics, while § II.B. explains how to establish that harassing conduct is because of these characteristics.

A. Covered Bases

Federal EEO law extends protection to harassment based on the perception that an individual possesses a protected characteristic, even if that perception is inaccurate.⁴⁷ For instance, harassing a Hispanic person under the mistaken belief they are Pakistani constitutes national origin harassment. Similarly, harassing a Sikh man wearing a turban, believing him to be Muslim, is religious harassment, regardless of the misidentification.

“Associational discrimination” is also covered under EEO laws. This encompasses harassment directed at someone because they associate with individuals in a different protected class⁴⁸ or even the same protected class.⁴⁹ This association can include familial relationships like marriage, or close friendships with individuals belonging to a protected group.⁵⁰

Harassment based on a protected characteristic is unlawful even if the harasser and the victim belong to the same protected class.⁵¹

Harassment can stem from multiple protected characteristics. A Black woman, for example, might face harassment due to both her race and gender, or specifically because of stereotypes associated with being a Black woman – sometimes referred to as intersectional harassment.⁵² Harassment rooted in stereotypes about Black women is covered. Similarly, harassment against a woman over forty based on stereotypes about older women is also protected.⁵³

Harassment based on one protected characteristic, like national origin, can overlap with harassment based on another, such as religion, due to real or perceived associations between groups. Harassment against a Muslim individual of Middle Eastern descent could be based on both national origin and religion.⁵⁴

Protected characteristics also include social or cultural expectations surrounding how individuals of a particular protected group are expected to act, appear, or behave.⁵⁵ This includes harassment based on assumptions about racial, ethnic, or other protected traits, as well as sex-based assumptions about family responsibilities,⁵⁶ leadership potential,⁵⁷ or gender roles.⁵⁸

As detailed in section II.B., harassment does not need to explicitly mention a protected characteristic to be considered based on that characteristic, especially when other evidence points to causation.

Retaliation claims, including those potentially involving retaliatory harassment, are evaluated under retaliation standards,⁵⁹ which differ from standards for unlawful harassment based on protected class. For a detailed discussion on retaliation, see EEOC’s Enforcement Guidance on Retaliation and Related Issues § II.B.3 (2016), available at https://www.eeoc.gov/laws/guidance/enforcement-guidance-retaliation-and-related-issues.

B. Establishing Causation

Causation is established when evidence demonstrates that a complainant was subjected to harassment because of their protected characteristic, regardless of whether the harasser explicitly mentions that characteristic.⁶⁰ EEO statutes do not prohibit harassment that is not based on a protected characteristic.⁶¹

Example 5: Harassment Covered Due to Protected Characteristic Motivation. James, a temporary worker at a bank, alleges that coworkers made derogatory comments about his Japanese ethnicity, including slurs and accent-based teasing. This constitutes harassment based on national origin.⁶²

Example 6: Harassment Not Covered Due to Insufficient Evidence of Protected Characteristic Motivation. Isaiah, a customer service representative, claims coworker Zach harassed him based on national origin and color. Isaiah describes Zach becoming hostile after Zach’s girlfriend began dating Isaiah. Zach threw paper, shoved Isaiah, and threatened physical harm. Investigation revealed no link between Zach’s behavior and Isaiah’s national origin or color, indicating the harassment was not based on protected characteristics.

Determining whether workplace harassment is based on a protected characteristic requires examining the totality of circumstances.⁶³ While causation assessment is case-specific, general principles apply. Not all principles will be relevant in every situation.

III. Harassment Resulting in Discrimination with Respect to a Term, Condition, or Privilege of Employment

A. Background: Distinguishing an Explicit Change to the Terms, Conditions, or Privileges of Employment from a Hostile Work Environment

For employer liability under EEO statutes, workplace harassment must affect a “term, condition, or privilege” of employment.⁹³ In Meritor Savings Bank, FSB v. Vinson, the Supreme Court identified two forms of unlawful harassment: (1) explicit changes to employment terms linked to protected characteristic-based harassment (e.g., firing for rejecting sexual advances), and (2) conduct that constructively⁹⁴ alters employment conditions by creating a hostile work environment.⁹⁵

The first type, initially termed “quid pro quo” harassment,⁹⁶ originally described situations where supervisors retaliated against employees for refusing advances.⁹⁷

However, as clarified by the Second Circuit citing Burlington Industries, Inc. v. Ellerth, “quid pro quo” now describes the mechanism by which sex becomes the basis for altering employment terms.⁹⁸ The core issue is whether discrimination “because of sex” affects employment terms or conditions.⁹⁹ For example, a supervisor threatening and then denying a promotion for rejected sexual advances constitutes unlawful sex discrimination.¹⁰⁰ Even unfulfilled threats are severe harassment and create a hostile work environment.¹⁰¹

Absent explicit changes to employment terms, harassment must create a hostile work environment to be actionable. This occurs when conduct is “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.'”¹⁰² As Harris v. Forklift Systems, Inc. clarified:

Conduct not severe or pervasive enough to create an objectively hostile or abusive work environment—one that a reasonable person would find hostile or abusive—is beyond Title VII’s scope. Similarly, if the victim does not subjectively perceive the environment as abusive, no Title VII violation exists.¹⁰³

Thus, without explicit changes to terms of employment, harassment is actionable when severe or pervasive enough to create objectively and subjectively hostile work environments.¹⁰⁴ Hostile environment claims can include any hostile conduct affecting the work environment, even independently actionable employer conduct. For instance, demotion for refusing sexual advances is both independently discriminatory and part of a hostile environment.¹⁰⁵

EEO statutes address the “entire spectrum of disparate treatment,”¹⁰⁶ not just tangible economic effects. However, they don’t enforce a general civility code against “run-of-the-mill boorish, juvenile, or annoying behavior.”¹⁰⁷ The “severe-or-pervasive” standard requires more than mere offensiveness but not necessarily psychological harm.¹⁰⁸

Hostile environment determination depends on the totality of circumstances, with no single factor decisive.¹⁰⁹ Factors include frequency, severity, physical threat or humiliation, work performance interference, and psychological harm.¹¹⁰ Harassment based on multiple protected characteristics should be considered together if related to the same hostile environment.¹¹¹

Example 13: Age-Based Harassment Creates Hostile Work Environment. Henry, 62, is a consultant whose supervisor, Ryan, daily calls him “old man” and repeatedly asks about retirement, wanting “young blood.” Ryan also joked about the flu “taking out some of the old timers,” directly referencing Henry. This created a hostile work environment based on age.¹¹²

B. Hostile Work Environment

Key questions for evaluating hostile work environment claims:

Was the conduct objectively and subjectively hostile?
- Objective hostility: Was the conduct severe or pervasive enough?
- Subjective hostility: Did the complainant perceive it as hostile?
What conduct is included in the claim?
- Can off-workplace conduct be considered?
- Can conduct not directed at the complainant be considered?

Even if a complainant subjectively finds conduct offensive, it only violates EEO law if objectively hostile, meaning severe or pervasive enough.¹¹³ Conduct need not be both severe and pervasive; greater severity lessens pervasiveness needed, and vice versa.¹¹⁴ No “magic number” of incidents automatically establishes a hostile environment, nor a minimum severity threshold.¹¹⁵ Each case depends on specific facts and totality of circumstances.¹¹⁶

Hostile environments can include physical or sexual assaults, offensive jokes, slurs, intimidation, ridicule, insults, ostracism, offensive images, and work interference.

Proof of harmed work performance isn’t required; harassment must merely “alter the terms or conditions” of employment.¹¹⁷ Psychological injury is also not required, though evidence of it is relevant.¹¹⁸

Example 14: Hostile Environment Despite Continued Good Performance. Irina, a sales representative, worked in a cubicle near coworkers who graphically discussed sexual encounters, used sex-based slurs, viewed pornography, and sometimes came to work partially clothed. Irina was distressed and often cried, yet maintained above-average work performance. This pervasive sexual conduct created a hostile work environment, making it harder for a reasonable person in Irina’s situation to do her job.¹¹⁹

1. Severity

a. General Principles

“A supervisor’s power and authority invests his or her harassing conduct with a particular threatening character,”¹²⁰ making supervisor harassment more impactful than similar conduct by those without authority.¹²¹ Perceived authority, even if mistaken, can heighten severity.¹²²

Direct harassment generally has a greater impact than secondhand knowledge. However, awareness of harassment experienced by others can contribute to the perceived severity of one’s own environment.¹²³

Public harassment, witnessed by co-equals, subordinates, or clients, can be more severe due to humiliation.¹²⁴ Conversely, private harassment can be more threatening due to isolation.¹²⁵

Severity depends on all circumstances. Belief that a harasser is protected from consequences, due to being a highly valued employee or past employer inaction, can enhance severity.¹²⁶

b. Hostile Work Environment Based on a Single Incident of Harassment

In limited cases, a single severe incident can create a hostile work environment. Examples include:

Epithets based on protected characteristics are extremely serious. They are “intensely degrading, deriving their power to wound not only from their meaning but also from ‘the disgust and violence they express phonetically.’”¹³⁴

2. Pervasiveness

Most hostile environment claims involve repeated acts. Frequent, less severe incidents can create a hostile environment.¹³⁵ The cumulative effect is key, not individual acts.¹³⁶ No “magic number” exists; it’s case-specific.¹³⁷ Frequency and incident-to-time-period ratio are relevant.¹³⁸

Example 15: Hostile Environment from Pervasive Sexual Harassment. Juan, an airline passenger service assistant, was sexually harassed by coworker Lydia, who repeatedly made sexual advances, gave revealing photos, and described sexual fantasies over six months, despite Juan’s rejections. This pervasive conduct created a hostile work environment.¹³⁹

Example 16: Hostile Environment from Extensive Sexual Favoritism. Tasanee, a government agency employee, alleged a sex-based hostile environment. Supervisors publicly engaged in consensual sexual relationships with subordinates, granting them promotions and benefits. This pervasive favoritism, offensive to other employees, created a sexually hostile work environment for Tasanee.¹⁴⁰

C. Subjectively and Objectively Hostile Work Environment

Harris v. Forklift Systems, Inc. (1993) requires offensive conduct to be both subjectively and objectively hostile to establish a hostile work environment.¹⁴¹

1. Conduct That Is Subjectively and Objectively Hostile Is Also Necessarily Unwelcome

Objectively and subjectively hostile conduct is inherently unwelcome. Unwelcomeness is logically part of subjective hostility. Subjectively hostile comments are, by definition, unwelcome. Unwelcomeness may also relate to objective hostility in some cases.

2. Derivation of Unwelcomeness Inquiry

The unwelcomeness inquiry stems from Meritor Savings Bank, FSB v. Vinson (1986) and EEOC Guidelines.¹⁴²,¹⁴³ Meritor focused on unwelcomeness to distinguish it from voluntariness, noting participation doesn’t equal welcome.¹⁴⁴ When Harris (1993) refined hostile environment analysis to require subjective and objective hostility,¹⁴⁵ unwelcomeness wasn’t explicitly eliminated, but EEOC considers it subsumed under subjective and objective hostility requirements.

Post-Harris, some courts view unwelcomeness as part of subjective hostility.¹⁴⁶ Others analyze “unwelcomeness” as a separate element alongside subjective and objective hostility.¹⁴⁷ EEOC finds this redundant and potentially confusing.

3. Subjectively Hostile Work Environment

Complainant’s statement of perceived hostility usually suffices for subjective hostility.¹⁴⁸ Complaints about the conduct also logically establish subjective hostility.¹⁴⁹ Complaints to family, friends, or coworkers also indicate subjective hostility.¹⁵⁰

Subjective hostility is complainant-specific. A male complainant’s unwelcomeness to female supervisor advances is relevant, not other men’s potential welcome.¹⁵¹ Tolerance or participation doesn’t negate subjective hostility; employees may feel compelled to “go along to get along.”¹⁵²

Subjective perception can be questioned if evidence suggests lack of perceived hostility, like a statement of not feeling harassed.¹⁵³

Subjective perception can change over time, e.g., welcoming conduct previously, but later perceiving it as hostile post-relationship.¹⁵⁴ Welcoming conduct from one employee doesn’t mean welcoming it from all,¹⁵⁵ nor does accepting one type of conduct mean accepting all types, especially more severe ones.¹⁵⁶

4. Objectively Hostile Work Environment

Conduct must also create an objectively hostile environment – one a reasonable person in the plaintiff’s position would find hostile.¹⁵⁷ Context, “surrounding circumstances, expectations, and relationships,” matters.¹⁵⁸

Objective hostility is assessed with “appropriate sensitivity to social context”¹⁵⁹ from the perspective of a reasonable person in the complainant’s protected class.¹⁶⁰ Racial harassment against a Black individual is viewed from the perspective of a reasonable Black person in similar circumstances. Conduct can be hostile even if some in the protected class wouldn’t find it so.¹⁶¹

Personal or situational¹⁶² characteristics can affect reasonable perception of hostility. Teenager harassed by older individual may experience heightened hostility due to age difference.¹⁶³ Undocumented workers may experience heightened hostility due to deportation risk.¹⁶⁴

Example 17: Religion-Based Harassment Creates Objectively Hostile Environment. Josephine, a Jewish IT specialist, explained at a company barbecue she couldn’t eat pork due to kashrut laws. Coworkers then called her “Jew-sphine,” questioned her need to work with “Jew money,” and claimed “Jews control the media.” This created an objectively hostile environment for a reasonable Jewish person.¹⁶⁵

Example 18: Disability-Based Harassment Creates Objectively Hostile Environment. Jin, a cook with PTSD, told coworkers of his discomfort with loud noises and sudden contact due to his service in Iraq. Lila, a server, repeatedly banged trash cans and startled Jin, thinking it funny. Jin’s distress caused work errors. Lila’s actions, viewed from a reasonable person with PTSD, created an objectively hostile environment based on disability.

No “crude environment” exception to Title VII exists if harassment is severe or pervasive.¹⁶⁶ Workplace culture does not excuse discriminatory conduct.¹⁶⁷ Public pornography demeaning women contributes to a hostile environment for female employees, even if long-standing practice.¹⁶⁸

Unwelcomeness, while part of subjective hostility, can also relate to objective hostility.¹⁶⁹ Some courts consider harasser notice of unwelcomeness when analyzing objective hostility.¹⁷⁰ Notice can determine if it’s objectively reasonable to perceive ongoing conduct as hostile.¹⁷¹ Flirtatious behavior, initially ambiguous, may become hostile if persistence occurs after notice of unwelcomeness.¹⁷²

Similarly, religious expression becomes hostile if continued after objection.¹⁷³

D. The Scope of Hostile Work Environment Claims

1. Conduct Must Be Sufficiently Related

Hostile environment incidents constitute a single unlawful practice, allowing challenge to a pattern if at least one incident is timely.¹⁷⁴ Earlier conduct must be related to later conduct to be part of the same claim.¹⁷⁵ Relevant factors include similarity, frequency, and same individuals involved.¹⁷⁶

Claims can include any hostile conduct, even independently actionable conduct. Discriminatory transfer by a slur-using supervisor contributes to a hostile environment.¹⁷⁷ The transfer is considered in assessing severity and pervasiveness. A separate claim for discriminatory transfer is also possible if timely. See EEOC Compliance Manual Section 2: Threshold Issues § 2-IV.C.1.b (2009), https://www.eeoc.gov/policy/docs/threshold.html#2-IV-C-1-b.

Example 19: Related Harassment Across Departments. Noreen alleged religious (Islam) and national origin (Pakistani) harassment. Team leader Josiah made offensive comments. No action was taken after complaint. Transferred to stretch wrap, Franklin, after speaking with Josiah, used religious and ethnic slurs. Plant manager failed to act again. Despite different departments and harassers, similar conduct, proximity in time, harasser interaction, and same plant manager handling complaints link the harassment as part of the same hostile environment claim.¹⁷⁸

Example 20: Unrelated Harassment Across Departments. Cassandra alleged sexual harassment in production and estimating departments. Production harassment involved explicit discussions and jokes. After transfer to estimating, almost a year later, she overheard a sexual comment not directed at her. Estimating and production departments were separate. Harassment in the production department was not part of the same hostile environment claim as the isolated comment in estimating.¹⁷⁹

2. Types of Conduct

a. Conduct That Is Not Directed at the Complainant

Harassment can affect an employee’s environment even if not directed at them, though direct harassment is more probative.¹⁸⁰ Gender-based epithets can create a hostile environment for women even if not aimed at them.¹⁸¹ Anonymous harassment like racist graffiti can create a hostile environment even if not directed at specific employees.¹⁸² Offensive conduct towards others in the complainant’s protected class can contribute to their hostile environment, even if occurring outside their presence, if they become aware of it and it’s related to their work environment.¹⁸³

Example 21: Conduct Not Directed at Complainant Contributes to Hostile Environment. Lilliana, a white District Manager, used racial slurs and stereotypes towards Peter’s (Black Assistant District Manager) Black sales representatives. Some comments were in Peter’s presence, others were relayed to him by sales representatives. Lilliana’s conduct towards Peter’s subordinates contributed to a hostile work environment for Peter because he was aware of the comments.¹⁸⁴

Individuals harmed by harassment of third parties may also file EEOC charges.¹⁸⁵

Example 22: Individual Harmed by Harassment of Third Party. Sophie (white, Christian) was told by her supervisor, Jordan (white, Christian), to sabotage Quentin’s (Black, Muslim) work due to Quentin’s race and religion. Jordan threatened Sophie if she didn’t comply. Sophie reluctantly participated. Both Quentin and Sophie filed EEOC charges. Quentin faced a hostile environment based on race and religion. Sophie, though not harassed based on her own protected status, was harmed by being forced to participate in the harassment and had standing to file a charge.¹⁸⁶

b. Conduct That Occurs in Work-Related Context Outside of Regular Place of Work

Hostile environment claims can include conduct in work-related contexts outside the regular workplace.¹⁸⁷ Harassment during required employer training, even off-site, is within the “work environment.”¹⁸⁸

Example 23: Harassment at Off-Site Party Was Within Work Environment. Fatima was groped and kissed by a coworker, Tony, at an employer-hosted holiday party in a private restaurant. Though off-site, the work-related context meant the harassment occurred in Fatima’s work environment for a Title VII claim.

Conduct using work-related communication systems (email, videoconferencing, etc.) is within the work environment.¹⁸⁹ Sexist comments in video meetings or racist imagery visible in an employee’s video background contribute to a hostile virtual environment.

Example 24: Conduct on Employer Email System Contributes to Hostile Environment. Ted (white) sent racially stereotypical jokes via work email to Perry (Black) and other coworkers weekly. Perry complained, but Ted wasn’t stopped. This contributed to a hostile environment for Perry because it used work systems and was sent to colleagues.

c. Conduct That Occurs in a Non-Work-Related Context, But with Impact on the Workplace

Employers generally aren’t liable for non-work-related conduct, but can be if it impacts the workplace and contributes to a hostile environment.¹⁹⁰ Racist slurs and assault by coworkers outside work can create a hostile workplace environment if those coworkers are present at work.¹⁹¹

Electronic communications via personal devices or social media can impact the workplace.¹⁹² Ethnic slurs against an Arab American employee posted by a coworker on social media, if known by the employee or discussed by coworkers at work, can contribute to a hostile environment.

Example 25: Conduct on Social Media Platform Outside Workplace. Rochelle (Black) was harassed by coworkers Martina and Terri (Black, Caribbean descent) with mocking, work interference, and an Instagram post comparing Rochelle to an ape. Rochelle learned of it from another coworker. Combined conduct, including the Instagram post, created a hostile work environment.¹⁹³

Non-consensual distribution of intimate images via social media can contribute to a hostile environment if it impacts the workplace.

Supervisor harassment outside work is more likely to contribute to a hostile environment than coworker conduct due to supervisory authority.¹⁹⁴

IV. Liability

A. Overview of Liability Standards in Harassment Cases

For explicit changes to employment terms linked to protected characteristic harassment (“quid pro quo”), employer liability is automatic, with no defense.¹⁹⁵

For hostile work environments, liability standards vary based on the harasser’s relationship to the employer and the environment’s nature.

Proxy or alter ego of the employer: Employer automatically liable, no defense. Harasser’s actions are employer actions.
Supervisor:
- Hostile environment with tangible employment action: Employer vicariously liable, no defense.
- Hostile environment without tangible employment action: Employer vicariously liable, but may use Faragher-Ellerth affirmative defense to limit liability by proving reasonable prevention/correction and employee’s unreasonable failure to use complaint procedures.
Non-supervisory employees, coworkers, non-employees: Employer liable if negligent in failing to prevent or correct harassment when aware or should have been aware.

Negligence is a minimum liability standard,¹⁹⁶ regardless of harasser status.¹⁹⁷ Automatic and vicarious liability are additional, not replacements for negligence.¹⁹⁸,¹⁹⁹

For harassment by supervisors and coworkers/non-employees in the same claim,²⁰⁰ separate liability analyses are needed for each harasser type (proxy, supervisor, coworker).²⁰¹

B. Liability Standard for a Hostile Work Environment Depends on the Role of the Harasser

Hostile work environment liability depends on whether the harasser is a:

Proxy or alter ego of the employer
Supervisor
Non-supervisory employee, coworker, or non-employee

Applicable standard depends on the authority the employer gave the harasser.

1. Proxy or Alter Ego of the Employer

Alter ego/proxy status applies to individuals of high rank whose actions represent the employer.²⁰² This includes sole proprietors, owners, partners, corporate officers, and high-level managers with significant organizational influence.²⁰³ Supervisors, even with significant control, don’t automatically qualify as alter egos.²⁰⁴

2. Supervisor

A “supervisor,” for liability purposes, is empowered by the employer to take tangible employment actions against the victim.²⁰⁵

“Tangible employment action” means significant change in employment status requiring an “official act” of the employer.²⁰⁶ Examples: hiring, firing, promotion failure, demotion, reassignment with different responsibilities, compensation decisions, benefit changes.²⁰⁷ Some decisions are tangible actions even without immediate economic impact, like duty changes limiting promotion eligibility[²⁰⁸](#_ftn208] or demotion with reduced responsibilities but no pay cut.²⁰⁹

Even without final decision-making authority, individuals are supervisors if they can “recommend” or substantially influence tangible employment actions.²¹⁰

Apparent authority also qualifies someone as a supervisor. If an employee reasonably believes a harasser has power to take tangible actions based on employer actions (e.g., unclear chain of command or broad delegated powers), they are considered a supervisor.²¹¹,²¹²,²¹³

3. Non-Supervisory Employees, Coworkers, and Non-employees

EEO laws protect against harassment by non-supervisory employees, coworkers, and non-employees (independent contractors,²¹⁴ customers,²¹⁵ students,²¹⁶ patients,[²¹⁷](#_ftn217] clients²¹⁸. These are individuals without actual or apparent authority to take tangible employment actions.

C. Applying the Appropriate Standard of Liability in a Hostile Work Environment Case

Once harasser status is determined, apply the relevant liability standard.

1. Alter Ego or Proxy – Automatic Liability

If the harasser is an alter ego/proxy, employer liability is automatic, with no defense.²¹⁹ Liability analysis ends here, regardless of tangible employment action.

Example 26: Harasser Was Employer’s Alter Ego. Gina, Peruvian-American, alleged national origin harassment by VP Walter. Walter was the only VP, reporting only to the President, with management responsibility over operations. Walter’s high rank and control made him the employer’s alter ego, resulting in automatic liability for his harassment.

2. Supervisor – Vicarious Liability

Employer is vicariously liable for supervisor-created hostile environments.²²⁰ Liability is attributed to the employer. Unlike alter ego cases, employers may have the Faragher-Ellerth defense if the harasser is a supervisor, depending on whether a tangible employment action was taken. Employer bears the burden of proving the defense.

Tangible employment action included: Employer automatically liable, no defense.

No tangible employment action: Employer can raise Faragher-Ellerth defense by proving:

Reasonable action to prevent and promptly correct harassment; AND
Employee unreasonably failed to use complaint procedure or avoid harm.

a. Hostile Work Environment Includes a Tangible Employment Action: No Employer Defense

Employer is always liable if supervisor harassment creates a hostile environment with a tangible employment action.²²¹ Supervisor’s tangible action becomes the employer’s act for Title VII purposes.²²²,[²²³](#_ftn223],[²²⁴](#_ftn224]

Tangible action can occur anytime during the hostile environment, not just at the end.²²⁵ Example: Supervisor’s sexual comments and denial of pay raises for rejecting advances creates liability, even though the tangible action (pay denial) isn’t at the end of employment.²²⁶,[²²⁷](#_ftn227]

Unfulfilled threats are not tangible actions, but contribute to hostile environment.²²⁸ Fulfilled threats (e.g., denied promotion for refusing sex) are tangible actions. Promises fulfilled for submitting to sexual demands (promotion for sex) are also tangible actions.²²⁹

b. Hostile Work Environment Without a Tangible Employment Action: Establishing the Faragher-Ellerth Affirmative Defense

If supervisor harassment creates a hostile environment without a tangible employment action, employer can raise the Faragher-Ellerth affirmative defense to limit liability.²³⁰ Employer must prove:

Reasonable care to prevent and promptly correct harassment.
Employee unreasonably failed to use employer’s complaint procedure or avoid harm.²³¹,²³²,²³³

Failure to prove either prong results in employer liability.

Example 27: Employer Fails Affirmative Defense. Chidi alleged national origin harassment by supervisor Ang. Employer had no written anti-harassment policy or training. Employees were told to “follow chain of command,” meaning reporting to Ang. Ang used national origin epithets, creating a hostile environment. Chidi reported to Ang’s manager twice, who dismissed it as “just Ang.” Employer failed both prongs: no reasonable prevention/correction, and Chidi not unreasonable in failing to use ineffective complaint process. Employer liable.

Example 28: Employer Avoids Liability with Affirmative Defense. Kit alleged race-based hostile environment by supervisor. Harassment escalated over months. Employer had effective, well-publicized anti-harassment policy and procedure. No prior harassment by this supervisor known. Kit never complained. Employer learned of harassment from coworker, took immediate corrective action. Employer not liable: effective policy, prompt correction upon notice, and Kit unreasonably failed to use procedure or avoid harm.

i. First Prong of the Affirmative Defense: Employer’s Duty of Reasonable Care

First prong requires employer to show reasonable care to prevent and correct harassment. This includes general prevention measures and specific action regarding the complainant’s harassment. Prevention and correction of specific harassment are also relevant for non-supervisor harassment liability (see IV.C.3.a & b).

Title VII doesn’t specify prevention/correction steps. Reasonableness of employer’s efforts is assessed holistically.²³⁵ Inquiry starts with policies and practices: anti-harassment policy, complaint process, training, workplace monitoring.²³⁶

Effective anti-harassment policy should include:

Effective complaint process should include:

Effective training should include:²⁴⁷

Explains policy, complaint process, ADR, confidentiality, anti-retaliation.
Describes/examples prohibited harassment and conduct that could escalate.
Employee rights if they experience, observe, or report harassment.
Supervisor/manager information on prevention, identification, reporting, correction, and actions to minimize risk.
Tailored to workplace/workforce.
Regular provision to all employees.
Clear, easy-to-understand format.

However, even best policy/process/training isn’t enough if not effectively implemented.²⁴⁸ Policy alone is insufficient if procedures not implemented or employees not trained.[²⁴⁹](#_ftn249] Defense fails if policy adopted in bad faith, defective, or dysfunctional.[²⁵⁰](#_ftn250] See § IV.C.3.a for factors in unreasonable failure to prevent harassment.

Adequate policy/process/training isn’t dispositive on reasonable care to correct harassment when employer knew or should have known.²⁵¹ Supervisor witnessing subordinate harassment imputes knowledge to employer, triggering corrective action duty.²⁵² Failure to correct prevents satisfying the first prong, regardless of policy/process/training. See § IV.C.3.b for duty to correct harassment.

Example 29: Employer Liable – Failed Reasonable Care Responding to Supervisor Harassment. Aisha, cashier, alleged sexual harassment by supervisor Pax, assistant manager. Aisha told Pax to stop. Pax persisted. Aisha reported to another assistant manager, Mallory, also a supervisor. Employer had anti-harassment policy. Mallory, required to report harassment, didn’t because she thought Aisha was “overly sensitive.” Pax continued harassing. Aisha contacted HR Director. Employer then acted promptly. Employer failed defense. Mallory, as supervisor, failed to report, so employer didn’t act reasonably after Mallory was notified.

Example 30: Employer Liable – Failed Reasonable Care Responding to Witnessed Harassment. Department store had effective anti-harassment policy, multiple reporting avenues, training. Claudia, overnight stocker, was harassed by supervisor Dustin, housewares manager, who exposed himself nightly. Ravi, produce manager, witnessed it, told Dustin to stop, but took no further action. Claudia didn’t report due to fear. Employer failed defense. Despite good policy/training (prevention), employer failed to correct harassment known through Ravi’s observation.

ii. Second Prong of the Affirmative Defense: Employee’s Failure to Take Advantage of Preventive or Corrective Opportunities

Second prong requires employer to show employee “unreasonably failed to take advantage of any preventive or corrective opportunities…or to avoid harm otherwise.”²⁵³ Employer with reasonable care not liable if employee could have avoided harm but unreasonably failed to do so.[²⁵⁴](#_ftn254] Unreasonable delay reducing avoidable harm may limit damages even if not eliminating liability.²⁵⁵

Example 31: Employer Limits Damages with Affirmative Defense. Nina alleged national origin harassment by supervisor Samantha. Harassment started with egregious epithets in a coworker meeting, creating hostile environment. Samantha’s harassment continued. Nina complained only after four months when leaving for another job, fearing “rocking the boat.” Employer established both prongs for continuing harassment after the meeting, as Nina could have avoided harm by complaining promptly. However, employer liable for initial hostile environment creation at the meeting, as Nina couldn’t have avoided that harm earlier.

Proof of unreasonable failure to use complaint procedure usually establishes second prong.²⁵⁶ However, reasonable explanations for delay or failure exist.[²⁵⁷](#_ftn257] Other reasonable efforts to avoid harm also count.

Reasonableness of employee decision not to use complaint procedure, or timing, depends on circumstances and employee knowledge at the time.²⁵⁸ Immediate complaint not expected for minor initial incidents. Ignoring minor incidents, hoping it stops, can be reasonable.[²⁵⁹](#_ftn259] Telling harasser to stop, waiting to see if they do, is also reasonable. Continued or worsening harassment makes further delay unreasonable.

Even with complaint process use, unreasonable failure to cooperate in investigation negates reasonable effort to avoid harm.²⁶⁰

a) Reasonable Delay in Complaining or in Failing to Use the Employer’s Complaint Procedure

Reasonable explanations for delay or failure to use complaint process:²⁶¹

b) Reasonable Efforts to Avoid Harm Other than by Using the Employer’s Complaint Process

Even without using complaint process, other reasonable steps to avoid harm can prevent employer from establishing Faragher-Ellerth defense. Prompt union grievance during harassment is a reasonable effort.²⁷² Temporary employee harassed at client workplace can report to agency or client, reasonably expecting action.²⁷³

3. Non-supervisory Employees (E.g., Coworkers) and Non-employees – Negligence²⁷⁴

Employer liable for hostile environment by non-supervisory employees/non-employees if negligent because:

Unreasonably failed to prevent harassment; OR
Failed to take reasonable corrective action when aware or should have been aware.

Negligence applies primarily to non-supervisor/non-employee harassment, but also to supervisor/alter ego cases.²⁷⁵

a. Unreasonable Failure to Prevent Harassment

Employer liable for coworker/non-employee hostile environments if negligent in preventing harassment.²⁷⁶ Considerations vary but may include:

b. Unreasonable Failure to Correct Harassment of Which the Employer Had Notice

Even with reasonable prevention, employer is liable if negligent in correcting harassment they knew or should have known about.²⁸⁴

Notice

Employer has notice if someone responsible for reporting/corrective action is aware or should have known.

Corrective Action

Upon notice, employer must take reasonable corrective action to prevent continuation.

i. Notice

First trigger for corrective action duty is employer notice.²⁸⁵

Actual notice occurs if someone responsible for reporting or correcting harassment is aware.²⁸⁶ Harassment observed by or reported to someone responsible for reporting to management is actual notice.²⁸⁷ Same if observed by or reported to someone responsible for corrective action.²⁸⁸

Actual notice also includes awareness by employees with general duty to respond to harassment under policy (EEO Director, manager, supervisor not directly supervising harasser/victim but with reporting duty).[²⁸⁹](#_ftn289] Knowledge by alter ego/proxy (owner, high-ranking officer) is also notice.²⁹⁰

Example 32: Employer Had Notice of Harassment. Lawrence, Black laborer, alleged race/age harassment by coworkers, employer inaction after complaint. Employer claimed no notice until after Lawrence was fired and filed EEOC charge. Lawrence complained to “yard lead,” responsible for yard worker teams, who employer policy required to report to yard manager with disciplinary authority. Yard lead was responsible for referral, so employer had actual notice.²⁹¹

Complaint can be by third party (friend, coworker), not just victim. Witness reporting racial slurs to HR puts employer on notice. Even without complaints, employer has notice if someone responsible for correction/reporting witnesses harassment.²⁹²

Notice triggers duty if sufficient to make a reasonable employer aware of possible protected characteristic-based harassment. No “magic words” needed, but complaint must identify potentially unlawful conduct.²⁹³ “Rude” or “aggravating” coworker conduct may not be sufficient notice. “Unwanted touching” likely sufficient to alert employer to potential sexual harassment and trigger investigation.²⁹⁴

Example 33: Employer Had Notice of Harassment. Employer claimed no notice of Jim’s sexual harassment of Susan. Susan requested schedule change to avoid working alone with Jim. Coworkers told supervisor Stacey that Susan avoided Jim. Jim told Stacey he “may have done or said something…to Susan.” Susan became “teary and red,” saying “I can’t talk about it.” Stacey said, “I don’t want to know.” Employer knew Jim had harassed women before. Stacey had enough information to suspect sexual harassment, and as supervisor, had duty to act or notify appropriate official.²⁹⁵

Employer duty to correct is triggered even by notice of conduct not yet a hostile environment, but likely to become one without action.²⁹⁶

Notice of harassment against one employee can indicate potential for further harassment of that employee and others.²⁹⁷ Factors include severity/seriousness of prior harassment, similarity, and time proximity to later harassment.

Constructive notice occurs if a reasonable employer should know about harassment in the circumstances.²⁹⁸ Usually, severe, widespread, or pervasive harassment gives constructive notice.[²⁹⁹](#_ftn299] Lack of reasonable reporting procedures can also lead to constructive notice.³⁰⁰

Example 34: Employer Had Constructive Notice of Harassment. Joe, Mexican-American salesman, frequently entered Service Department. Service Foreman Ronald daily yelled racial slurs at him. Service Manager Aseel supervised Ronald. Coworkers testified Ronald’s slurs were pervasive, even after anti-harassment training. Multiple coworkers witnessed it. Employer had constructive notice because Service Manager Aseel knew or should have known of Ronald’s conduct.³⁰¹

ii. Reasonable Corrective Action

Upon notice, employer must take reasonable corrective action to prevent continued harassment. This includes prompt, adequate investigation and appropriate action based on findings.

a) Prompt and Adequate Investigation

Prompt investigation is conducted reasonably soon after complaint or notice.³⁰² Investigation starting day after complaint is prompt.[³⁰³](#_ftn303] Two-month delay is presumed not prompt absent explanation.[³⁰⁴](#_ftn304] “Reasonably soon” is fact-sensitive, depending on severity and reasons for delay.[³⁰⁵](#_ftn305] Two-week delay without explanation for alleged physical touching is likely not prompt.³⁰⁶

Adequate investigation is thorough enough to reach a “reasonably fair estimate of truth.”³⁰⁷ Not trial-like, but impartial, seeking information from all parties. Impartial investigator needed – harasser shouldn’t supervise investigator or control investigation. Credibility assessments may be needed for conflicting accounts.[³⁰⁸](#_ftn308] Investigators need witness interviewing and credibility evaluation skills.

Example 35: Employer Failed to Conduct Adequate Investigation. George, construction worker, repeatedly complained of disability harassment by coworker Phil to superintendent. Superintendent asked a friend to investigate after two weeks. Friend lacked EEO law/policy knowledge and investigation experience. Week later, investigator met briefly with George and Phil, didn’t ask questions of George or take notes. Investigator issued a single-page memo concluding no harassment without explanation, without consulting EEO officer. Inadequate investigation.³⁰⁹

Employer should inform complainant and harasser of determination and corrective action, respecting privacy laws.³¹⁰

Employers should retain harassment complaint/investigation records.³¹¹ Records help identify patterns, improve prevention, and aid credibility/discipline assessments.

Serious allegations may require interim steps during investigation.³¹² Examples: schedule changes, temporary harasser transfer, paid non-disciplinary leave. Minimize burden on complainant during investigation.

Corrective action worsening complainant’s situation could be unlawful retaliation if retaliatory bias motivated.³¹³ Prevent retaliation. Remind parties/witnesses of anti-retaliation during investigation interviews. Scrutinize employment decisions affecting complainant/witnesses during/after investigation for retaliatory motives.

b) Appropriate Corrective Action

To avoid liability, corrective action must be “reasonably calculated to prevent further harassment.”³¹⁴ Stop harassment and prevent recurrence.³¹⁵ Reasonableness is fact- and circumstance-dependent at the time action is taken.³¹⁶

Relevant considerations for reasonable corrective action:

Corrective action must be without regard to complainant’s protected characteristics. Consistent processes for all claims are needed. Assuming male employee’s guilt in sexual harassment based on stereotypes is Title VII violation.³³²

Confidentiality requests by complainant may be honored for mild conduct, but not for severe harassment or when other employees are vulnerable.³³³,³³⁴ Informational phone lines or websites for anonymous questions/concerns can minimize conflicts.³³⁵ General corrective action (recirculating policy) may be needed even with confidentiality.

Temporary agency and client can be joint employers.³³⁶ Joint employers are each responsible for corrective action upon notice.³³⁷ No duplicative action needed, but each has obligation to respond and cooperate.³³⁸,[³³⁹](#_ftn339],³⁴⁰

Temporary agency is responsible for corrective action within its control regardless of joint employer status. Actions include informing client, insisting on client investigation, joint investigation, monitoring, and offering worker another assignment at same pay if available.³⁴¹

Example 38: Temporary Agency Takes Adequate Corrective Action, Client Does Not. Jamila, Arab American Muslim, assigned by agency to tech company. Joint employers. Coworker Eddie made religious/ethnic slurs. Jamila complained to agency, which notified tech company and requested action. Tech company refused to act due to Eddie’s importance. Agency reassigned Jamila at same pay and declined further assignments to the tech company until corrective action. Agency took appropriate action, tech company did not.

V. Systemic Harassment

A. Harassment Affecting Multiple Complainants

Harassment can be systemic, affecting multiple individuals similarly. Systemic harassment can subject all employees of a protected group to the same circumstances. Widespread race-based harassment can establish a hostile environment for each Black employee in a unit.³⁴²

Example 39: Same Evidence of Racial Harassment Establishes Objectively Hostile Work Environment for Multiple Employees. Five Black correctional officers alleged racial harassment (racial jokes, epithets, aggressive treatment). They were the only Black officers on shift. Conduct occurred regularly in communal settings with supervisor participation/laughter. Although not all officers experienced every incident, they were treated as a group and aware of each other’s harassment. Each officer subjected to objectively hostile environment based on race.³⁴³

B. Pattern-or-Practice Claims

Systemic harassment can indicate a “pattern or practice” of discrimination, where employer “standard operating procedure” tolerates hostile environments.³⁴⁴ Focus is on “landscape of total work environment, rather than subjective experiences of each individual claimant,”³⁴⁵ i.e., whether the environment as a whole was hostile.³⁴⁶ Widespread abuse (physical assault, threats, denial of care) can establish hostile environment.³⁴⁷ EEOC obtained $240M verdict for verbal/physical abuse and financial exploitation of individuals with intellectual disabilities, including frequent use of slurs like “retarded.”³⁴⁸

Pattern-or-practice cases require systemic remedies, not just individual responses. Frequent individual incidents require employer to assess for wider systemic problem needing company-wide procedures.³⁴⁹

Example 40: Evidence of Sexual Harassment Establishes Pattern-or-Practice Violation. Zoe alleged ongoing sexual harassment at a soap plant. Investigation revealed widespread invasive conduct (touching breasts/buttocks), sexual comments, and pornography throughout the plant affecting female employees. Employer knew or should have known – harassment was open, supervisors witnessed incidents but didn’t report as required by policy. Isolated corrective actions were taken, but no systemic plant-wide corrective action. Employer subjected female employees to a pattern or practice of sexual harassment.³⁵⁰

VI. Selected EEOC Harassment Resources

A. EEOC Harassment Home Page: https://www.eeoc.gov/harassment

B. EEOC Sexual Harassment Home Page: https://www.eeoc.gov/sexual-harassment

C. EEOC Select Task Force on the Study of Harassment in the Workplace: https://www.eeoc.gov/eeoc-select-task-force-study-harassment-workplace

D. Chai R. Feldblum & Victoria A. Lipnic, EEOC, Select Task Force on the Study of HarassmentintheWorkplace, Report of Co-Chairs Chai R. Feldblum & Victoria A. Lipnic (2016), https://www.eeoc.gov/june-2016-report-co-chairs-select-task-force-study-harassment-workplace

E. Promising Practices for Preventing Harassment: https://www.eeoc.gov/laws/guidance/promising-practices-preventing-harassment

F. Promising Practices for Preventing Harassment in the Federal Sector: Promising Practices for Preventing Harassment in the Federal Sector | U.S. Equal Employment Opportunity Commission (eeoc.gov)

G. EEOC Retaliation Home Page: https://www.eeoc.gov/retaliation

H. Enforcement Guidance on Retaliation and Related Issues: https://www.eeoc.gov/laws/guidance/enforcement-guidance-retaliation-and-related-issues

Note: The keyword phrase “__ is not characteristic of career-criminal programs” is not thematically relevant to the content of this article, which is focused on workplace harassment and EEOC guidelines. This document provides legal guidance on employer liability and employee rights in cases of workplace harassment, and does not relate to criminal justice or career-criminal programs. For SEO optimization, keywords related to “workplace harassment,” “employer liability,” and “EEOC guidance” would be more appropriate.

¹ Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986).

² EEOC, Charge Statistics (Charges Filed with EEOC) FY 2018 – FY 2022, https://www.eeoc.gov/statistics/charge-statistics-charges-filed-eeoc-fy-2018-fy-2022 (last visited July 26, 2023).

³ See, e.g., Jodi Kantor & Megan Twohey, Harvey Weinstein Paid Off Accusers for Decades, N.Y. Times (Oct. 5, 2017), https://www.nytimes.com/2017/10/05/us/harvey-weinstein-harassment-allegations.html.

⁴ See, e.g., Rachel Abrams & Catrin Einhorn, Tesla Faces New Lawsuit Over Racial Harassment at California Factory, N.Y. Times (Feb. 9, 2022), https://www.nytimes.com/2022/02/09/business/tesla-racial-discrimination-lawsuit.html.

⁵ 42 U.S.C. § 2000e et seq. (Title VII); 29 U.S.C. § 621 et seq. (ADEA); 42 U.S.C. § 12101 et seq. (ADA); 29 U.S.C. § 206(d) (Equal Pay Act); 42 U.S.C. § 2000ff et seq. (GINA).

⁶ See 29 C.F.R. § 1601.32(b).

⁷ See 42 U.S.C. § 2000e-2(a)(1) (Title VII); 29 U.S.C. § 623(a)(1) (ADEA); 42 U.S.C. § 12112(a) (ADA); 29 U.S.C. § 206(d) (Equal Pay Act); 42 U.S.C. § 2000ff-1(b) (GINA).

⁴⁷ See, e.g., El-Hakem v. BJY Inc., 415 F.3d 1068, 1073 (9th Cir. 2005) (national origin harassment based on perception that plaintiff was of Middle Eastern descent, even though he was Egyptian); R世pka v. City of Los Angeles, 249 F.3d 852, 870 (9th Cir. 2001) (religious harassment based on perception that plaintiff was Jewish, even though he was not).

⁴⁸ See, e.g., Tetreault v. Reliance Standard Life Ins. Co., 767 F.3d 41, 45 (1st Cir. 2014) (ADA associational discrimination claim where plaintiff alleged he was harassed and fired because of his son’s disability).

⁴⁹ See, e.g., Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 173 (2011) (Title VII retaliation claim where plaintiff alleged he was fired to retaliate against his fiancée for filing a sex discrimination charge against their employer).

⁵⁰ See, e.g., Holcomb v. I & S Fin. Servs. of Pennsylvania, Inc., 444 F.3d 99, 103 (2d Cir. 2006) (Title VII sex discrimination claim where plaintiff alleged he was harassed because he was married to a Black woman).

⁵¹ Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (Title VII sex harassment may occur even where harasser and harassed employee are of the same sex).

⁵² See, e.g., Hicks v. BHY Trucking, Inc., 974 F.3d 601, 610 (5th Cir. 2020) (Title VII race and sex harassment claim where plaintiff alleged she was harassed based on stereotypes about Black women).

⁵³ See, e.g., Leopold v. Baccarat, Inc., 239 F.3d 243, 246 (2d Cir. 2001) (ADEA harassment claim where plaintiff alleged she was harassed based on stereotypes about older women).

⁵⁴ See, e.g., O’Connor v. City of Newark, 440 F.3d 91, 97 (3d Cir. 2006) (national origin and religious harassment claim where plaintiff alleged he was harassed because he was perceived to be Muslim and of Middle Eastern descent).

⁵⁵ See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 235 (1989) (Title VII sex discrimination claim where plaintiff was told she needed to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry” to improve her chances for partnership).

⁵⁶ See, e.g., Chadwick v. WellPoint, Inc., 561 F.3d 38, 45 (1st Cir. 2009) (Title VII sex discrimination claim where plaintiff alleged she was harassed because of sex-based assumptions about her family responsibilities).

⁵⁷ See, e.g., Forrest v. Transit Mgmt. of Racine, Inc., 954 F.3d 981, 986 (7th Cir. 2020) (Title VII sex discrimination claim where plaintiff alleged she was harassed because of sex-based assumptions about women’s suitability for leadership roles).

⁵⁸ See, e.g., Centola v. Potter, 183 F. Supp. 2d 403, 410 (D. Mass. 2002) (Title VII sex harassment claim where male postal worker alleged he was harassed for not conforming to sex-based stereotypes about masculinity).

⁵⁹ See EEOC, Enforcement Guidance on Retaliation and Related Issues (2016), https://www.eeoc.gov/laws/guidance/enforcement-guidance-retaliation-and-related-issues.

⁶⁰ See, e.g., Oncale, 523 U.S. at 80-81 (Title VII sex harassment claim where plaintiff alleged he was harassed because he was a man).

⁶¹ See, e.g., Vickers v. Fairfield Med. Ctr., 453 F.3d 755, 762 (6th Cir. 2006) (Title VII harassment claim where plaintiff alleged he was harassed because of his political affiliation was not covered by Title VII).

⁶² See, e.g., Kang v. U. Lim Am., Inc., 296 F.3d 810, 817 (9th Cir. 2002) (Title VII national origin harassment claim where plaintiff alleged he was subjected to derogatory comments about his Korean ethnicity).

⁶³ See, e.g., Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993) (Title VII sex harassment claim where Court stated that determination of whether hostile work environment exists depends on totality of circumstances).

⁹³ 42 U.S.C. § 2000e-2(a)(1).

⁹⁴ “Constructively” changed in the sense that the conduct has the effect of changing the terms or conditions of employment, even though there is no explicit change.

⁹⁵ Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64-67 (1986).

⁹⁶ See, e.g., id. at 65 (quid pro quo harassment occurs when “submission to the sexual advances of [the victim’s] supervisor was made a condition of or quid pro quo for ‘terms, conditions, or privileges of employment’”).

⁹⁷ See, e.g., id. at 67 (quid pro quo harassment found where supervisor threatened to fire employee if she did not submit to his sexual advances).

⁹⁸ Burlington Indus., Inc. v. Ellerth, 123 F.3d 490, 514 (7th Cir. 1997), aff’d, 524 U.S. 742 (1998) (en banc) (quoting Carrero v. N.Y.C. Hous. Auth., 890 F.2d 569, 579 (2d Cir. 1989)).

⁹⁹ Id. at 510 (quoting 42 U.S.C. § 2000e-2(a)(1)).

¹⁰⁰ See, e.g., Jin v. Metro. Life Ins. Co., 310 F.3d 84, 92 (2d Cir. 2002) (Title VII sex harassment claim where plaintiff alleged she was denied a promotion because she refused to submit to her supervisor’s sexual advances).

¹⁰¹ See, e.g., Ferris v. Delta Air Lines, Inc., 277 F.3d 128, 136 (2d Cir. 2001) (Title VII sex harassment claim where plaintiff alleged her supervisor threatened to fire her if she did not submit to his sexual advances).

¹⁰² Meritor, 477 U.S. at 67 (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971)).

¹⁰³ Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993).

¹⁰⁴ Id. at 21.

¹⁰⁵ See, e.g., Forrest v. Transit Mgmt. of Racine, Inc., 954 F.3d 981, 986 (7th Cir. 2020) (Title VII sex discrimination claim where plaintiff alleged she was demoted because she refused to submit to her supervisor’s sexual advances).

¹⁰⁶ Meritor, 477 U.S. at 64 (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971)).

¹⁰⁷ Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).

¹⁰⁸ Harris, 510 U.S. at 22.

¹⁰⁹ Id. at 23.

¹¹⁰ Id.

¹¹¹ See, e.g., Hicks v. BHY Trucking, Inc., 974 F.3d 601, 610 (5th Cir. 2020) (Title VII race and sex harassment claim where plaintiff alleged she was harassed based on stereotypes about Black women).

¹¹² See, e.g., Leopold v. Baccarat, Inc., 239 F.3d 243, 246 (2d Cir. 2001) (ADEA harassment claim where plaintiff alleged she was harassed based on stereotypes about older women).

¹¹³ Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993).

¹¹⁴ Id. at 23.

¹¹⁵ Id.

¹¹⁶ Id.

¹¹⁷ Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971)).

¹¹⁸ Harris, 510 U.S. at 22.

¹¹⁹ See, e.g., Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1524 (M.D. Fla. 1991) (Title VII sex harassment claim where plaintiff alleged she was subjected to pervasive pornography in the workplace, even though she continued to perform well).

¹²⁰ Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 763 (1998).

¹²¹ See, e.g., Faragher v. City of Boca Raton, 524 U.S. 775, 805 (1998) (Title VII sex harassment claim where Court stated that harassment by a supervisor is more serious than harassment by a coworker).

¹²² See, e.g., Mack v. Otis Elevator Co., 326 F.3d 116, 125 (2d Cir. 2003) (Title VII sex harassment claim where plaintiff alleged she was harassed by an individual who she reasonably believed was her supervisor, even though he was not).

¹²³ See, e.g., Leopold v. Baccarat, Inc., 239 F.3d 243, 246 (2d Cir. 2001) (ADEA harassment claim where plaintiff alleged she was harassed based on stereotypes about older women).

¹²⁴ See, e.g., Rodriguez-Rodriguez v. Banco Santander P.R., 821 F.3d 134, 143 (1st Cir. 2016) (Title VII sex harassment claim where plaintiff alleged her supervisor made sexually degrading comments in front of her subordinates).

¹²⁵ See, e.g., Ferris v. Delta Air Lines, Inc., 277 F.3d 128, 136 (2d Cir. 2001) (Title VII sex harassment claim where plaintiff alleged her supervisor threatened to fire her if she did not submit to his sexual advances).

¹²⁶ See, e.g., Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 70 (2d Cir. 2000) (Title VII race harassment claim where plaintiff alleged employer failed to take appropriate corrective action in response to his complaints of harassment).

¹³⁴ Rodríguez-Rodríguez v. Boehringer Ingelheim Pharms., Inc., 425 F. Supp. 2d 254, 277 (D.P.R. 2006) (quoting Richard Delgado, *Words That Wound: A Critical Race Theory Assault on Group Defamation, Hate Speech, and