Marilyn H. WILLIAMS, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, Defendant-Appellee

*569 RYAN, Circuit Judge,

dissenting.

Because the majority opinion has so dramatically and radically changed the law in this circuit for actionable sexual harassment under Title VII — and has done so in disregard of United States Supreme Court authority and this circuit’s binding precedent — I must respectfully dissent from Part II of the majority’s opinion. I have no disagreement with what is written in Parts I and III, and as to those parts of the majority opinion, I concur.

I.

Unable to state a compelling case under settled Title VII law for overturning the district court’s conclusion that there is no justiciable material fact issue in this case sufficient to avoid summary judgment for the defendant, the majority opinion redefines actionable sexual discrimination under Title VII to include harassment that is not based on sex. My sister, with her usual admirable candor and intellectual honesty, declares unmistakably that, in effect, she is taking the law of actionable sexual harassment to a new level. She states:

Because it appears this court has never explicitly held that non-sexual conduct can constitute harassment based on sex, we now take this opportunity to join our sister circuits and make clear that the conduct underlying a sexual harassment claim need not be overtly sexual in nature. 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 [v. Forklift Sys., Inc., 510 U.S. 17 , 114 S.Ct. 367 , 126 L.Ed.2d 295 (1993),] standard, constitute a hostile environment in violation of Title VII.

Maj. op. at 565.

While I might agree with this statement of the rule in principle, assuming my sister means “concupiscent” conduct when she refers to “overtly sexual” conduct, the court’s application of the rule, as explained below, demonstrates a broader gender-based equal protection standard for an award of damages for workplace harassment under Title VII than it might imply at first blush. Not surprisingly, my colleague cites no authority for this remarkable broadening of the Harris standard in application, at least no enactment by the Congress, decision by the United States Supreme Court, or precedent from this court. However appealing the majority’s views might be to some, the broad new standard my colleagues have conjured here is not a correct application of Title VII sex discrimination law presently on the books. And since this precedent-bound intermediate court of appeals is not sitting en banc today, and more importantly, is not the Supreme Court, we have no authority to make these views the law.

It is perhaps worth recalling that Title VII does not establish a cause of action for harassment in the workplace, even harassment targeted at a member of the opposite sex. Nor, as a matter of fact, has Congress authorized an award of damages for workplace harassment that is sex related. What Congress has forbidden in Title VII, as relevant to this case, is workplace harassment that results in discrimination based on sex — and then only when the sex-based harassment has created a “workplace ... permeated with ‘discriminatory intimidation, ridicule, and insult’ ... that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ ” Harris, 510 U.S. at 21 , 114 S.Ct. 367 (emphasis added) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67 , 106 S.Ct. 2399 , 91 L.Ed.2d 49 (1986)).

II.

The distinguished and experienced district judge, David D. Dowd, Jr., whose judgment the majority has overturned today, recognized in his carefully written opinion that all harassment of a female in the workplace, however offensive and objectionable, is not actionable sex-based dis *570 crimination within the meaning of Title VII. Judge Dowd correctly observed that of the 18 incidents of alleged abuse the plaintiff claims to have suffered, only three or four were of a sexual nature, and the others had nothing to do with sex-based discrimination at all. Judge Dowd recognized that the constant use of the “F-word” in the shop, the denial of keys and breaks, the blocking of buggies and doors, gluing articles to the plaintiffs desk, and throwing a “couple [of] boxes” at the plaintiff are not acts of sexual discrimination. And, absent evidence that these acts were motivated by an intent to harass the plaintiff because of her sex, they did not become so simply because they were targeted at a female who was the victim of other and unrelated abusive remarks that were sex related.

The majority accuses Judge Dowd of misanalyzing this case by “disaggre-gat[ing] the [18] incidents” and thus improperly separating them into four categories: “(1) Foul Language in the Workplace; (2) Mean or Annoying Treatment by Co-Workers; (3) Perceived Inequities of Workplace Treatment; and (4) Sexually-Related Remarks Directed Toward Williams.”

The fact is that the plaintiff herself, in her deposition testimony, “disaggregated” into 18 separate incidents the conduct she alleges amounted to sexual abuse. Judge Dowd very logically grouped the 18, most having nothing to do with sexual harassment, into four common sense, manageable types. But the majority’s criticism of the district court’s approach to analyzing the case has a purpose: By “aggregating]” the 18 thoroughly disparate incidents into a single group, the majority very nicely advances its thesis that “non-sexual conduct may be illegally sex-based where it evinces anti-female animus.” Maj. op. at 565. That is to say, if a female is the target of three or four acts of ridicule or insult of a sexual nature, and, in addition, is the target of other unrelated acts of harassment and annoyance that are sex neutral, by “aggregating]” them into a single group, the non-sex-based conduct merges with the sex-based conduct, and the resulting whole becomes a pattern of “anti-female animus” amounting to actionable sexual abuse. Thus, under the majority’s formula, as a matter of law, an anti-female attitude displaces sexual harassment as the standard for recovery under Title VII.

Of course, the majority is not in the least concerned that Title VII does not proscribe “anti-female animus” at all; rather, it proscribes sex-based discrimination that is so severe and pervasive as to create a working environment that is permeated with discriminatory intimidation, ridicule, and insult — one that alters the victim’s “conditions of employment.” Harris, 510 U.S. at 21 , 114 S.Ct. 367 . The majority apparently recognizes that the handful of acts of sexual harassment the plaintiff suffered, while thoroughly offensive and objectionable, are plainly not so “severe and pervasive” as to create a hostile working environment, and so it augments them with 12 or so instances of general horseplay, rudeness, buffoonery, and insult the plaintiff has alleged, in order to create what the majority calls an “accumulated effect.” Maj. op. at 563.

What the majority refuses to accept is that Congress has not proscribed all workplace harassment, rudeness, insult, and abuse directed at females, or the accumulated effect of these, but only that harassment which is (1) sex-based, and (2) so severe and pervasive as to meet the test of an abusive working environment as defined in Meritor and Harris . Instead, the majority purports to concoct an inference of discrimination out of evidence that, on its own, does not satisfy the requirements of the law, by combining it with other evidence that does not satisfy the requirements of the law, and is wholly irrelevant to the question of sexual abuse.

III.

Another mistaken premise critical to the majority’s thesis is that the “totality of the *571 circumstances,” as the frame of reference for assessing whether actionable sex discrimination has been shown, does not include the nature and character of the workplace environment. In so saying, my colleagues are simply dead wrong. The Supreme Court has made it very clear that the workplace environment indeed is a component of the totality of circumstances to be taken into account in assessing a claim of sexual harassment under Title VII:

We have emphasized, moreover, that the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiffs position, considering “all the circumstances.” ... In ... [all] harassment cases, that inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. 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.

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 , 118 S.Ct. 998, 1003 , 140 L.Ed.2d 201 (1998) (emphasis added).

This common sense idea was previously recognized in a sister circuit:

[W]e must evaluate [the plaintiffs] claim of gender discrimination in the context of a blue collar environment where crude language is commonly used by male and female employees. Speech that might be offensive or unacceptable in a prep school faculty meeting, or on the floor of Congress, is tolerated in other work environments.

Gross v. Burggraf Constr. Co., 53 F.3d 1531 , 1538 (10th Cir.1995).

The abusive and insulting conduct of which the plaintiff complains, including particularly the crude sexual innuendo she has described, is indisputably offensive. One can make a persuasive argument that in a civilized society an employer has an obligation to provide a workplace environment, including a shop or factory, in which respect for the ordinary sensibilities of all men and women — especially women — is assured, and behavior of the kind the plaintiff alleges occurred here is not tolerated. But that is not what Congress has decreed in Title VII, and it is not what the Supreme Court in Meritor, Hams, and Oncale has declared to be the basis for an award of damages.

The shop floor is a rough and indelicate environment in which finishing school manners are not the behavioral norm. When a female of ordinary civility, sensibilities, and morality walks into a work milieu that may be tastelessly suffused with rudeness, personal insensitivity, crude behavior, and locker room language, she must do so with the understanding that Congress has not legislated against such behavior and such a workplace environment. That is not to say for a moment that an employer is immune from liability for hostile work environment sex discrimination occurring in the factory or shop simply because the environment is regularly laced with crude behavior that includes sexual abuse. It means only that the customary “culture,” or lack of it, in a particular workplace is a part of the totality of circumstances to be taken into account in determining whether the nature and extent of the claimed harassment is so “severe and pervasive” that it has caused the workplace, such as it is, to become permeated with discriminatory intimidation, ridicule, and insult and has “al-terfed] the conditions of the victim’s employment” in that place. Harris, 510 U.S. at 21 , 114 S.Ct. 367 (emphasis added). Indeed, the very mention of a legal standard that inquires into the conditions of employment presumes that the court will decide the question of pervasiveness in the context of the ordinary conditions of the relevant workplace.

*572 IV.

Equality of opportunity for women across the entire spectrum of workplace circumstances is a civil right guaranteed in the Constitution and made enforceable through Title VII. And that includes opportunities for employment in occupations and undertakings in which women have not always been involved. That may well mean that in the competition for dedicated, experienced, and skilled female workers, employers will have to establish new, more sophisticated, female-sensitive rules of behavior which heretofore were unknown in many rough and tumble workplace environments. However, in the many occupations in which women now take their rightful places, perhaps for the first time, they may find themselves victims of unwanted, ungallant, inappropriate, and even insulting sex-related attention. But that does not mean that federal appellate courts have been commissioned by Congress to force a heightened level of civility upon the blue collar workplace — or any other, for that matter — by redefining workplace sex discrimination far more broadly than Congress has defined it in Title VII, more expansively than the United States Supreme Court has interpreted it in Meritor, Hams, and Oncale , or indeed, even more broadly than our precedent has defined it in Black v. Zaring Homes, Inc., 104 F.3d 822, 826 (6th Cir.) (quoting Baskerville v. Culligan International Co., 50 F.3d 428, 430 (7th Cir.1995)), cert. denied, — U.S. -, 118 S.Ct. 172 , 139 L.Ed.2d 114 (1997).

V.

In summary, it is entirely clear to me, as it was to the district court, that the handful of acts of sex-based harassment suffered by Marilyn Williams, while offensive and deplorable, were not, in the workplace environment in which she found herself, “sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment.” Meritor, 477 U.S. at 67 , 106 S.Ct. 2399 (internal quotation marks omitted). Of course, the majority implicitly concedes this fact in finding it necessary to reinvent the law of sexual harassment in the workplace consistent with its view of what Title VII ought to proscribe. The few acts of sexual harassment of which Williams complains may not properly be augmented by instances of other workplace insult, rudeness, horseplay, and nonsense, having nothing to do with her sex, in order to construct a case of Title VII sexual harassment sufficient to resist summary judgment. The majority's artificial construct— that non-sexual harassment of a female in the workplace can give rise to Title VII sex discrimination liability if it evinces “anti-female animus” — is a radical rewriting of settled Title VII sex discrimination jurisprudence. And if what the majority has done today is not vacated by this court en banc, it will surely come to haunt us.