holding that in cases alleging discriminatory work environment, there “cannot be a mathematically precise test,” noting in concurrence that “the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. ... It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did . . . .” [Citation omitted; internal quotation marks omitted.] [Ginsberg, J., concurring]
How later courts described this case
- holding that in cases alleging discriminatory work environment, there “cannot be a mathematically precise test,” noting in concurrence that “the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. ... It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did . . . .” [Citation omitted; internal quotation marks omitted.] [Ginsberg, J., concurring]
- holding that in cases alleging discriminatory work environment, there cannot be a mathematically precise test, noting in con- currence that the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. . . . It suffices to prove that a reasonable person subjected to the discriminatory conduct would feel as the plaintiff did . . . . [Ginsberg, J., concur- ring]
- explaining in the context of a Title VII claim that “whether an environment is ‘hostile’ or ‘abusive’ can be de- termined only by looking at all the circumstances,” such as “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably in- terferes with an employee’s work performance”
- finding that 11 whether an environment was hostile or abusive is determined by looking at the totality of the 12 circumstances; “[t]hese may include the frequency of the discriminatory conduct; its severity; 13 whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it 14 unreasonably interferes with an employee’s work performance”
Written by the judges who cited it.
Later courts went against this
Reported overruled on other grounds by Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006) — not on the Supreme Court's list
510 U.S. 17, 21 (1993), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53
Supreme Court of the United StatesJun 22, 20062 citing opinionsother groundsunconfirmed confidenceRead itReported abrogated on other grounds by Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) — not on the Supreme Court's list
510 U.S. 17, 21 (1993), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753
Supreme Court of the United StatesJun 26, 199813 citing opinionsother groundsunconfirmed confidenceRead it
The opinion
*24 Justice Scalia,
concurring.
Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 (1986), held that Title VII prohibits sexual harassment that takes the form of a hostile work environment. The Court stated that sexual harassment is actionable if it is “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’” Id., at 67 (quoting Henson v. Dundee, 682 F. 2d 897, 904 (CA11 1982)). Today’s opinion elaborates that the challenged conduct must be severe or pervasive enough “to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive.” Ante, at 21.
“Abusive” (or “hostile,” which in this context I take to mean the same thing) does not seem to me a very clear standard — and I do not think clarity is at all increased by adding the adverb “objectively” or by appealing to a “reasonable person[’s]” notion of what the vague word means. Today’s opinion does list a number of factors that contribute to abusiveness, see ante, at 28, but since it neither says how much of each is necessary (an impossible task) nor identifies any single factor as determinative, it thereby adds little certitude. As a practical matter, today’s holding lets virtually unguided juries decide whether sex-related conduct engaged in (or permitted by) an employer is egregious enough to warrant an award of damages. One might say that what constitutes “negligence” (a traditional jury question) is not much more clear and certain than what constitutes “abusiveness.” Perhaps so. But the class of plaintiffs seeking to recover for negligence is limited to those who have suffered harm, whereas under this statute “abusiveness” is to be the test of whether legal harm has been suffered, opening more expansive vistas of litigation.
Be that as it may, I know of no alternative to the course the Court today has taken. One of the factors mentioned in the Court’s nonexhaustive list — whether the conduct unrea *25 sonably interferes with an employee’s work performance— would, if it were made an absolute test, provide greater guidance to juries and employers. But I see no basis for such a limitation in the language of the statute. Accepting Meritoria interpretation of the term “conditions of employment” as the law, the test is not whether work has been impaired, but whether working conditions have been discriminatorily altered. I know of no test more faithful to the inherently vague statutory language than the one the Court today adopts. For these reasons, I join the opinion of the Court.