# Sexual Harassment and Employment Discrimination Under Title VII: Selected Legal Issues

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## Record

- **Collection:** Congressional research report
- **Document type:** Reports
- **Published:** June 29, 2026
- **Citation:** R45155

## Text

Sexual Harassment and Employment
Discrimination Under Title VII:
Selected Legal Issues
Updated June 29, 2026

Congressional Research Service
https://crsreports.congress.gov
R45155

SUMMARY

Sexual Harassment and Employment
Discrimination Under Title VII: Selected Legal
Issues

R45155
June 29, 2026
April J. Anderson
Legislative Attorney

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, bars employment discrimination
For a copy of the full report,
based on sex, but it does not expressly prohibit harassment. The Supreme Court has interpreted
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the statute to prohibit harassing conduct when it is so intolerable it can be said to alter the terms,
www.crs.gov.
conditions, or privileges of employment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66-67,
73 (1986). The Court has explained that harassment reaches this level when it is severe or
pervasive. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). In making this assessment, courts are to consider all the
circumstances, including the frequency and severity of the discriminatory conduct; whether it is physically threatening or
humiliating; and whether it unreasonably interferes with an employee’s work performance. See, e.g., EEOC v. Cent.
Wholesalers, Inc., 573 F.3d 167, 175-76 (4th Cir. 2009). Courts commonly observe that the bar for showing actionable
harassment is high, and they regularly dismiss Title VII harassment claims when plaintiffs fail to show sufficient severity or
pervasiveness. See, e.g., EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008).
Assuming a plaintiff shows she has suffered harassment, she must also show that the employer should be held liable for the
harassment. To decide this, courts consider whether the harasser had supervisory authority over the plaintiff, whether the
plaintiff suffered an adverse action such as termination, and whether the employer took steps to prevent and remedy
harassment. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 747 (1998). Courts also consider whether the plaintiff took
advantage of opportunities to report and remedy harassment. Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998).
Title VII sexual harassment can include not only unwelcome sexual advances, but also proposals that condition employment
benefits on a worker submitting to sexual demands. Such harassment can also include mistreatment based on sexual
orientation, gender identity, or failure to conform to sex-based stereotypes. Treating workers of one gender worse than
others—sexist harassment—is also illegal, even if the conduct is not sexual.
Title VII’s anti-retaliation provision makes it unlawful for an employer to discriminate against an employee for reporting a
Title VII violation. 42 U.S.C. § 2000e-3(a). The provision bars adverse action taken because an employee has opposed
employment discrimination or has participated in a Title VII enforcement action. This includes making a charge, testifying,
assisting, or contributing to an investigation, proceeding, or hearing. 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 protected against retaliation, a plaintiff must
have a good faith or objectively reasonable belief that the conduct he or she reported was unlawful under Title VII. EEOC v.
Rite Way Serv., Inc., 819 F.3d 235, 237 (5th Cir. 2016). 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.
A plaintiff may recover compensatory damages in any case of intentional discrimination, including sexual harassment. 42
U.S.C. § 1981a. Compensatory damages can include future pecuniary losses, emotional pain, suffering, inconvenience, and
other nonpecuniary losses. Id. § 1981a(b)(3). A plaintiff may also recover punitive damages in some circumstances. Damages
are capped based on an employer’s size. A worker who was discharged, constructively or otherwise, may also be eligible for
awards of backpay or frontpay.

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Sexual Harassment and Employment Discrimination Under Title VII

Contents
Introduction ..................................................................................................................................... 1
Hostile Work Environment Legal Standards ................................................................................... 2
The “Severe or Pervasive” Standard ......................................................................................... 2
Employer Liability for Hostile Work Environments ................................................................. 8
Applying the Faragher-Ellerth Defense ........................................................................... 10
Application of the Negligence Standard for Coworker Harassment ................................. 13
Harassment by Non-Employees .............................................................................................. 16
Disputed Supervisory Status and Vance v. Ball State University ............................................ 17
Additional Types of Sexual Harassment ....................................................................................... 19
Same-Sex Harassment ............................................................................................................. 19
Harassment Because of Sexual Orientation or Gender Identity .............................................. 22
Sexist Harassment ................................................................................................................... 25
Additional Causes of Action for Sexual Harassment .................................................................... 26
Quid Pro Quo Harassment ...................................................................................................... 26
Constructive Discharge ........................................................................................................... 28
Sexual Harassment and Retaliation Under Title VII ..................................................................... 30
Reporting Sexual Harassment ................................................................................................. 31
When Harassment May Constitute Unlawful Retaliation ....................................................... 35
Remedies ....................................................................................................................................... 37
Considerations for Congress.......................................................................................................... 38

Contacts
Author Information........................................................................................................................ 39

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Sexual Harassment and Employment Discrimination Under Title VII

Introduction
The issue of sexual harassment in the workplace has received significant attention from time to
time as harassment is reported in private and public employment.1 This attention has prompted
inquiries into the scope and sufficiency of legal protection for harassment victims.2 Since 2021,
legislation has addressed certain harassment-related issues, including forced arbitrations and the
use of confidentiality provisions in settlement agreements.3
Title VII of the Civil Rights Act of 1964 (Title VII) makes it unlawful for most private and public
employers with at least fifteen employees 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.”4 Though Title VII does not expressly prohibit
harassment,5 the Supreme Court and federal circuit courts interpret Title VII’s prohibition against
discrimination in the “terms, conditions, or privileges of employment” to prohibit harassment
based on race, color, religion, sex, or national origin6 when harassing conduct has become so
intolerable it can be said to alter those terms, conditions, or privileges. Courts describe such a
circumstance as a “hostile work environment,” and the terms “harassment” and “hostile work
environment” are often used interchangeably.7

1 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/pressreleases/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-metoomovement-six-years-later-whats-changed-and-whats-next/ [https://perma.cc/8RPD-F35F].
2
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/5SGH7SM5].
3 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.
4 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.
5 See 42 U.S.C. § 2000e-2(a)(1); see also id. § 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.”).
6 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. Cent.
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, 399–02 (5th Cir. 2007) (analyzing Title VII harassment claims based on
religion and national origin).
7 See Harris v. Forklift Sys., 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”); EEOC v. Fairbrook Med. 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’”).

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This report addresses various legal issues related to sexual harassment and Title VII.8 As the
statute contains neither an express prohibition against harassment nor a definition of harassment,
this report examines (1) how the Supreme Court and federal appellate courts have mapped out the
scope of protection that Title VII provides employees against sexual harassment, including the
Supreme Court’s “severe or pervasive” standard; (2) limits on employer liability for harassment;
and (3) retaliation for reporting harassment, among other issues.

Hostile Work Environment Legal Standards
When a plaintiff raises a Title VII harassment claim, federal courts often describe the action as
alleging a “hostile work environment.” The interchangeable use of the terms “harassment” and
“hostile work environment” is perhaps best understood to reflect the statutory anchor of a Title
VII harassment action: as the statute does not expressly prohibit or define harassment, such
claims are framed as violations of Title VII’s prohibition against a discriminatory and abusive
work environment, based on the phrase “terms, conditions, or privileges of employment.”
To prevail on a hostile work environment claim, a plaintiff must generally (1) establish the
requisite elements and (2) show a basis for holding the employer liable for the abusive conduct.
Generally, courts require plaintiffs to satisfy the following elements to establish a hostile work
environment claim (although courts vary in how they formulate the analysis):
•
•
•

the conduct was based on the plaintiff’s protected category;
the plaintiff subjectively viewed the harassment as creating an abusive work
environment; and9
the work environment is objectively abusive.10

The “Severe or Pervasive” Standard
The Supreme Court has characterized its Title VII hostile work environment jurisprudence as
making “clear that conduct must be extreme to amount to a change in the terms and conditions of
employment,” and it has stated that the rationale for such a standard is to “ensure that Title VII
does not become a ‘general civility code.’”11 “A recurring point in [our] opinions,” the Court
stated in Faragher v. City of Boca Raton, “is that ‘simple teasing,’ offhand comments, and

8 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).
9 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).
10 See, e.g., LeGrand v. Area Res. for Cmty. and Hum. Servs., 394 F.3d 1098, 1101 (8th Cir. 2005) (requiring the
plaintiff to show membership in a protected group, that they were subjected to unwelcome sexual harassment, that the
harassment was based on sex, and that the harassment was “sufficiently severe or pervasive as to affect a term,
condition, or privilege of employment by creating an objectively hostile or abusive environment” (quoting Meriwether
v. Caraustar Packaging Co., 326 F.3d 990, 993 (8th Cir. 2003)); Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th
Cir. 1999) (en banc) (setting forth similar elements to establish a “hostile-environment sexual-harassment claim”).
11 Faragher v. City of Boca Raton, 524 U.S. 775, 787–88 (1998).

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isolated incidents (unless extremely serious) will not amount to discriminatory changes in the
‘terms and conditions of employment.’”12
To that end, the most difficult legal question to prove in hostile work environment claims is
usually whether the harassment was objectively offensive. The Supreme Court’s legal standard
for objective offensiveness, announced in Harris v. Forklift Systems, Inc.,13 asks whether the
alleged conduct was “severe or pervasive” enough to create an abusive or hostile work
environment for the victim.14 Under this standard, even if a victim experiences offensive or
harassing conduct, a harasser’s actions will not give rise to a Title VII violation unless those acts
in total were “severe or pervasive” enough to create an “abusive” or “hostile” work
environment.15
Under Harris, a court considers “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.”16
Courts commonly observe that the bar for showing actionable harassment is high,17 and they
regularly dismiss Title VII harassment claims when plaintiffs fail to show sufficient severity or
pervasiveness.18 Courts also repeatedly state how difficult it is to assess whether harassing

12 Id. (citation omitted) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998)).
13 510 U.S. 17, 23 (1993).
14 See generally, Pa. State Police v. Suders, 542 U.S. 129, 133 (2004) (quoting Meritor Sav. Bank, FSB v. Vinson, 477

U.S. 57, 67 (1986)) (to be actionable under Title VII, plaintiffs must show “harassing behavior ‘sufficiently severe or
pervasive to alter the conditions of [their] employment’” (alteration in original)).
15 See, e.g., Gerald v. Univ. of P.R., 707 F.3d 7, 18 (1st Cir. 2013) (“We proceed to the real bone of contention here—
whether the harassment was sufficiently severe or pervasive. This is the factor the district court found lacking and it is
also the entire focus of the [defendant]’s argument on appeal. This is not surprising [since] . . . the real question is
typically whether the bad acts taken in the aggregate are sufficiently severe or pervasive to be actionable.”); EEOC v.
Cent. Wholesalers, Inc., 573 F.3d 167, 175–76 (4th Cir. 2009) (citing Harris, 510 U.S. at 17) (applying specific
factors); Mendoza, 195 F.3d at 1245–51 (same).
16 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, 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.’”).
17 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).
18 See, e.g., LeGrand v. Area Res. for Cmty. and Hum. Servs., 394 F.3d 1098, 1102–03 (8th Cir. 2005) (affirming grant
of summary judgment on plaintiff’s harassment claim, as conduct was not severe or pervasive enough to be actionable
under Title VII); Mormol v. Costco Wholesale Corp., 364 F.3d 54,58–59 (2d Cir. 2004) (same); Burnett v. Tyco Corp.,
203 F.3d 980, 984–85 (6th Cir. 2000) (same).

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conduct is severe or pervasive enough to amount to a Title VII violation.19As the Second Circuit20
has observed, “[t]he line between complaints that are easily susceptible to dismissal as a matter of
law and those that are not is indistinct. . . . And on either side of the line there are . . . gradations
of abusiveness.”21 As elaborated on below, federal circuit courts vary in how they apply this factintensive inquiry.
In general, courts most readily conclude that alleged conduct is sufficiently severe or pervasive in
the context of sexual harassment claims when the challenged behavior constitutes rape22 or
involves physical threats at work,23 repeated solicitation for sex,24 repeated touching of intimate
body parts,25 or daily or regular verbal harassment.26 The Supreme Court in Harris observed that
“[t]his is not, and by its nature cannot be, a mathematically precise test.”27 That does not mean
that the number of harassing incidents is unimportant, however. Conduct must be severe or
19 See, e.g., Turner v. The Saloon, Ltd, 595 F.3d 679, 685 (7th Cir. 2010) (“We have acknowledged before that

‘drawing 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.’” (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”).
20 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.
21 Redd v. N.Y. Div. of Parole, 678 F.3d 166, 177 (2d Cir. 2012); see also Harris, 510 U.S. at 24 (Scalia, J.,
concurring) (“‘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.”).
22
See Lapka v. Chertoff, 517 F.3d 974, 983–84 (7th Cir. 2008) (holding 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 Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)).
23 See Kaytor v. Elec. Boat Corp., 609 F.3d 537, 540–41, 550–52 (2d. Cir. 2010) (holding conduct to be severe or
pervasive enough, where harasser told plaintiff at least six times that he wanted to choke her, often said he wished her
dead, told her he would kill her if she reported his comments to upper management, and made sexual comments, among
other acts).
24 See Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 334–35 (6th Cir. 2008) (holding conduct severe or pervasive
enough, where harasser asked plaintiff to perform oral sex and have sex several 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) (holding 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 tried to grope her).
25 Hulsey, 367 F.3d at 1248.
26 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);
EEOC v. WC&M Enters., Inc., 496 F.3d 393, 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).
27 Harris, 510 U.S. at 23.

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pervasive; it need not be both.28 Appellate courts commonly emphasize frequency, often counting
instances of harassment one by one and taking note of the duration of the harassment in addition
to the severity of the conduct.29 Many forms of mistreatment can play a role in creating a hostile
work environment. Courts have considered displays of pornography, sexual graffiti, and playing
music with “sexually demeaning and violent language” as contributing to a hostile environment.30
Even though there are trends in the case law, federal appellate panels also sometimes diverge on
seemingly similar facts.31 Below are selected cases addressing harassment claims that reflect how,
in cases alleging serious physical and verbal misconduct, courts may come to different
conclusions faced with similar fact patterns.
In Turner v. The Saloon, Ltd.,32 the Seventh Circuit allowed the plaintiff’s case to proceed to trial
where the harasser grabbed the plaintiff’s genitals, asked the plaintiff to kiss her, pressed against
the plaintiff asking if he missed her, grabbed his buttocks, and told him she missed seeing him
naked when she saw plaintiff change into his work uniform. When faced with somewhat similar
facts in LeGrand v. Area Resources for Community and Human Services,33 however, the Eighth
Circuit held that the evidence could not show actionable harassment where the harasser forcibly
28 BNSF Ry. Co., 150 F.4th at 966.
29 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).
30 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.”).
31 See, e.g., Mormol v. Costco Wholesale Corp., 364 F.3d 54, 55–56, 58–59 (2d Cir. 2004) (holding that conduct did
not amount to actionable harassment, where plaintiff repeatedly declined her supervisor’s propositions for sex, in which
he told her he would not approve her vacation request unless she had sex with him, again asked her to have sex and said
he would punch her time card at night so she would be paid for hours she did not work, and asked her again for sex,
telling her he would give her money and make her a full-time employee but only require her to work part-time;
characterizing this harassment as amounting to only a few episodes and not severe enough to “overcome its lack of
pervasiveness”); Paul v. Northrop Grumman Ship Sys., 309 F. App’x 825, 826, 829 (5th Cir. 2009) (holding that
conduct was not severe or pervasive enough to be actionable, where harasser came up to plaintiff and placed his chest
against her breasts for 30 seconds, then followed her, forced his way through the door ahead of her, and placed his hand
on her stomach and rubbed his pelvic region across her hips and buttocks; stating that “non-consensual physical
touching” is actionable only where “chronic and frequent.”). Divergent, or seemingly inconsistent, analyses commonly
exist within a given circuit’s precedent as well. Cf. Nitsche v. CEO of Osage Valley Elec. Co-op., 446 F.3d 841, 843–
44, 846 (8th Cir. 2006) (holding alleged conduct over twenty years was not severe or pervasive enough, where the
harasser, two or three times, stuck a shovel between plaintiff’s legs and rubbed him with it; repeatedly told him he
needed to get a pap smear; called him a “stub” and suggested he had a short penis, among other acts and behavior);
Eich v. Bd. of Regents for Cent. Mo. State Univ., 350 F.3d 752, 760–61 (8th Cir. 2003) (holding harassment was
actionable where over seven years, harasser brushed up against plaintiff’s breasts, ran his fingers through her hair, and
simulated sex acts with plaintiff while she was bent over during a handcuff training exercise, among other acts and
behavior); see also Redd v. N.Y. Div. of Parole, 678 F.3d 166, 179–80 (2d Cir. 2012) (holding conduct was severe or
pervasive enough where supervisor intentionally touched plaintiff’s breasts three times with hands); cf. Quinn v. Green
Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998) (holding conduct not severe or pervasive enough where supervisor
intentionally touched plaintiff’s breasts using papers he was holding in his hand and said she was voted as having the
“sleekest ass” in the office), abrogated on other grounds by Nat’l R.R. Passenger v. Morgan, 536 U.S. 101 (2002).
32 595 F.3d 679, 685 (7th Cir. 2010).
33 394 F.3d 1098, 1100, 1103 (8th Cir. 2005).

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kissed the plaintiff “in the mouth,” grabbed the plaintiff’s buttocks, reached for the plaintiff’s
genitals, gripped the plaintiff’s thigh, asked the plaintiff to watch pornographic movies with him,
and on another occasion suggested that the plaintiff would advance in the company if he (the
plaintiff) engaged in sexual conduct with the harasser while watching pornographic movies.
The First Circuit held in Gerald v. University of Puerto Rico34 that the harasser’s conduct—
solicitation for sex on one occasion, touching the victim’s breast on another occasion, and asking
her in front of other coworkers why she would not have sex with him—was severe or pervasive
enough to constitute actionable harassment. In Brooks v. City of San Mateo, the Ninth Circuit held
that the harasser’s conduct did not amount to severe or pervasive harassment where he touched
the plaintiff’s stomach while she was working and made a sexual comment, forced his hand
underneath her sweater and bra to touch her bare breast, and then approached her as though he
was going to “fondle her breasts again.”35 The court emphasized that the conduct was “highly
reprehensible” but repeatedly characterized the behavior as a single episode of harassment and an
“entirely isolated incident.”36 Similarly, the Eighth Circuit concluded that a plaintiff could not
state a claim of harassment based on “one instance of unwelcome physical contact, one or two
statements where [the supervisor] stated he could ‘have [her]’ and several statements about how
he never should have hired a female and wanted to make [her] cry.”37
Courts can also have different perspectives on how a “reasonable” person would view similar
facts, such as whether certain behavior is threatening or whether any reasonable person would
view physical contact as severe. In Turner, for example, the Seventh Circuit emphasized that if
there is touching of an intimate body part, such evidence weighs “most heavily” in determining
whether the harassment is actionable.38 The court also stated that the harasser’s grabbing of the
plaintiff’s genitals was “probably severe enough on its own” to go to a jury on whether the
harassment was objectively severe or pervasive.39 In LeGrand, however, the Eighth Circuit
characterized the conduct (which included groping) as being “manifestly inappropriate” but
composed of only “three isolated incidents, which occurred over a nine-month period,” thus
rendering the conduct—in the court’s view—“not so severe or pervasive as to poison [the
plaintiff]’s work environment.”40 The court in LeGrand also characterized the evidence as not
demonstrating incidents that were “physically violent or overtly threatening.”41
As circuit precedent is controlling on both the circuit itself and lower courts within the circuit,
older circuit precedent continues to shape recent analyses. If a circuit court has held that certain
fact patterns are not enough to show severity or pervasiveness, lower courts in the circuit have
accordingly held that fact patterns concerning similarly or less egregious conduct also do not
amount to actionable harassment.42 For example, in 1999, the Fifth Circuit held in Shepherd v.
Comptroller of Public Accounts of State of Texas that conduct did not amount to actionable
34 707 F.3d 7, 18 (1st Cir. 2013).
35 229 F.3d 917, 921, 924–27 (9th Cir. 2000).
36 Id. at 924–27.
37 Paskert v. Kemna-ASA Auto Plaza, Inc., 950 F.3d 535, 538 (8th Cir. 2020).
38 Turner, 595 F.3d at 685–86. See also Gerald, 707 F.3d at 18 (“These offensive incidents, which involved sexual

propositioning and uninvited touching, can reasonably be viewed as severe; and, in the case of the breast grabbing
incident, physically threatening (not to mention criminal).”).
39 Turner, 595 F.3d at 685–86.
40 LeGrand, 394 F.3d at 1102–03.
41 Id. at 1102.
42 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).

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harassment under Title VII where the harasser made remarks about the plaintiff’s breasts and the
size of her thighs, simulated looking under her dress, repeatedly stood over her desk and tried to
look down her clothing, rubbed her from her shoulder down to her wrist with his hand while
standing beside her several times, and motioned for her to sit in his lap when plaintiff arrived late
to a meeting while saying “here’s your seat.”43 While the court’s analysis in Shepherd has faced
criticism in later decisions from the circuit,44 the Fifth Circuit and lower courts still rely on
Shepherd as controlling authority dictating conduct insufficient to create a hostile work
environment.45
Recent Supreme Court precedent in nonharassment cases may also impact how courts apply the
“severe or pervasive” standard. In Muldrow v. City of St. Louis, the Supreme Court addressed the
level of harm plaintiffs needs to show in nonharassment cases—cases involving a discrete,
negative employment action. In that case, lower courts had held that the plaintiff’s transfer
(allegedly on account of her sex) to a lower-status job with weekend work and fewer perks did
not support a discrimination claim.46 The changes did not impose “significant” harm required for
a discrimination claim, the lower courts held, particularly because she retained the same pay.47
The Supreme Court reversed the lower courts’ decisions and held that plaintiff’s transfer could be
an actionable harm under Title VII. The Court rejected the requirement that a plaintiff show
“significant” harm from discrimination. Instead, the Court in Muldrow ruled, a plaintiff need only
show “some harm” to an identifiable term or condition of employment.48
The Muldrow Court did not address harassment cases. After the decision, at least two appellate
panels have held that the ruling lowered the bar to show harm in a harassment or hostile
environment case.49 According to that court, a plaintiff must still show an objectively hostile work
environment50 and must show “the hostility produce[d] some harm respecting an identifiable term
or condition of employment.”51 The plaintiff need not show significant harm, however. As another
court put it, “when we consider whether a hostile-work environment was severe or pervasive

43 Shepherd v. Comptroller of Pub. Accounts of State of Tx., 168 F.3d 871, 872, 875 (5th Cir. 1999).
44 Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 402–03 (5th Cir. 2013) (stating that Shepherd has “been

called into question by our court” for an analysis that seems to require that pervasive conduct must also be severe to
constitute actionable harassment, but still distinguishing the facts at issue from those in Shepherd to hold that the
alleged harassment was actionable) (citing Harvill v. Westward Commc’ns., L.L.C., 433 F.3d 428, 434–35 (5th Cir.
2005)).
45 See, e.g., Barnett v. Boeing Co., 306 F. App’x 875, 879 (5th Cir. 2009) (“The incidents of sexual harassment . . . do
not rise to the level required by Shepherd and Hockman.”); Haynes v. Brennan, No. 4:14-CV-01759, 2016 WL
2939074, at *3 (S.D. Tex. May 20, 2016) (granting summary judgment to defendant in reliance on Shepherd, when
plaintiff alleged that harasser touched her thigh, forcibly kissed her forehead, frequented her work station, paid
unwanted sexual attention to her, and plaintiff heard that harasser’s friend tried to get her transferred).
46 Muldrow v. City of St. Louis, 601 U.S. 346, 350 (2024).
47 Id.
48 Id.
49 Kellar v. Yunion, Inc., 157 F.4th 855, 873 (6th Cir. 2025) (“But now, after Muldrow and McNeal, courts cannot
require a plaintiff to show that he suffered a heightened level of harm to succeed on a hostile-work-environment claim.
For summary judgment purposes, once a plaintiff provides evidence that the environment itself was objectively hostile
to the protected class, so long as the hostility ‘produce[d] “some harm respecting an identifiable term or condition of
employment,”’ he meets his burden.”) (quoting McNeal v. City of Blue Ash, 117 F.4th 887, 904 (6th Cir. 2024)
(applying standard to disability claim)); McNeal, 117 F.4th at 904 (“Because hostile-work-environment claims arise out
of the same statutory language as disparate-treatment claims, Muldrow’s holding that Title VII does not require
plaintiffs to show ‘significant’ harm applies to both types of claims.” (quoting Muldrow, 601 U.S. at 355)).
50 Kellar, 157 F.4th at 873.
51 Id.

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enough to violate Title VII, . . . we effectively ask whether it left an employee ‘worse off
respecting employment terms or conditions.’”52
Another circuit has rejected that application of Muldrow, holding that hostile environment claims
are unlike discrete action claims and do not use the same standard of harm.53 That court expressed
doubt that the Muldrow standard and the “severe or pervasive” standard should be combined in
harassment cases and questioned whether they can be combined without becoming “circular.”54 In
that court’s view, “[t]o say that Muldrow changed this for hostile-environment claims is
essentially to say that Muldrow gutted the very thing that distinguishes hostile-environment
claims from discrete-act claims.”55

Employer Liability for Hostile Work Environments
Even when a plaintiff puts forth evidence meeting the elements of a sexual harassment claim,
including sufficiently severe or pervasive mistreatment, the plaintiff must also show that the
employer should be held liable for the harassment.56 The legal standard for evaluating employer
liability is based on several Supreme Court decisions: Meritor Savings Bank v. Vinson, which held
that employers are not “automatically liable for sexual harassment by their supervisors”57; and
Faragher v. City of Boca Raton58 and Burlington Industries, Inc. v. Ellerth,59 which further
delineated when employers can be held liable for workplace harassment.60
These cases are important for a legal analysis because the legal standards for establishing
employer liability for workplace harassment are not expressly included or addressed in Title
VII.61 The Supreme Court has repeatedly observed that Congress has not altered or overruled
Meritor’s limitation on employer liability for harassment, even though it has subsequently
amended Title VII.62 Post-Meritor, the Court has acknowledged that there “are good reasons” to
always hold employers liable “for misuse of supervisory authority”63 but has viewed itself as
bound by Meritor, particularly since “[t]he decision of Congress to leave Meritor intact is
52 McNeal, 117 F.4th at 904 (quoting Muldrow, 601 U.S. at 355).
53 Russell v. Driscoll, 157 F.4th 1348, 1352–53 (10th Cir. 2024).
54 Id.
55 Id.
56 Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 103 (2d Cir. 2010) (“Beyond demonstrating a hostile work

environment, a plaintiff must show a basis for imputing the objectionable conduct to the employer. When, as here, the
alleged harasser is in a supervisory position over the plaintiff, the objectionable conduct is automatically imputed to the
employer.” (citations omitted)).
57 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 72 (1986) (declining to “issue a definitive rule on employer
liability,” but reasoning that Congress’s decision to define employer to include any “agent” of an employer “surely
evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held
responsible” and rejecting the court of appeals’ holding that employers should always be held strictly liable for sexual
harassment by supervisors).
58 524 U.S. 775, 780 (1998).
59 Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 747 (1998).
60 See generally Pa. State Police v. Suders, 542 U.S. 129, 143 (2004) (discussing “the framework Ellerth and Faragher
established to govern employer liability for sexual harassment by supervisors”).
61 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”).
62 Id.; see also Faragher, 524 U.S. at 804 n.4 (stating 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 the 1991 amendments to Title
VII).
63 Faragher, 524 U.S. at 804.

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conspicuous.”64 Similarly, in Ellerth, the Court stated that it was bound by Meritor’s holding that
employer liability for harassment is subject to limitation.65 As detailed below, under the Supreme
Court’s formulation, establishing employer liability for workplace harassment nevertheless turns
significantly on whether the harassing employee was a supervisor.66
Under Faragher and Ellerth, there are two threshold considerations that help determine employer
liability for harassment: the harasser’s status—as the victim’s supervisor or coworker—and
whether the harassment also led to a “tangible employment action” (e.g., termination or demotion
of the victim).67 Under this framework,
•
•

•

if the harasser was the victim’s supervisor and the harassment led to a “tangible
employment action,” the employer will be strictly liable for the harassment;68
if the harasser was the victim’s supervisor but the harassment did not lead to a
tangible employment action, the employer can avail itself of an affirmative
defense (considering the employer’s actions to prevent harassment and respond
to reported harassment) to avoid liability altogether;69
if the harasser was the victim’s coworker, the victim has the burden to show that
the employer was negligent in response to the harassment.70

In fashioning the rules for employer liability, the Court in Faragher and Ellerth observed that all
workplace harassment is in some sense aided by the employment context wherein “[p]roximity
and regular contact may afford a captive pool of potential victims.”71 The Court also stated that “a
supervisor’s power and authority invests his or her harassing conduct with a particular threatening
character, and in this sense, a supervisor always is aided by the agency relation.”72 The rules for
employer liability for workplace harassment thus take into account how much the harasser was
aided by their relationship with the employer.
In Ellerth, the Court reasoned that harassing supervisors can only make “tangible employment
decisions” against employees because of the power they wield on behalf of the employer.73 In
64 Id. at 804 n.4; see also Ellerth, 524 U.S. at 763–64.
65 Ellerth, 524 U.S. at 763.
66 Vance v. Ball State Univ., 570 U.S. 421, 424 (2013) (explaining that under Title VII, “an employer’s liability for

such harassment may depend on the status of the harasser,” and discussing the significance of whether the harasser was
the victim’s coworker or supervisor).
67 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.
68 Faragher, 524 U.S. at 807–08 (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 also Pa. State Police v. Suders,
542 U.S. 129, 144–46 (2004) (discussing the analyses, rationales, and holdings in the Faragher and Ellerth decisions).
69 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).
70 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.”).
71
Ellerth, 524 U.S. at 760.
72 Id. at 763.
73 Id. at 761–62.

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those circumstances, a supervisor’s harassing acts are attributable to the employer for Title VII
purposes because tangible employment actions “are the means by which the supervisor brings the
official power of the enterprise to bear on subordinates.”74 The Court accordingly held in Ellerth
that an employer is strictly liable (that is, liable regardless of intent) for such supervisory
harassment.75
If harassment by a supervisor does not come with a tangible employment action, the Court in
Ellerth stated that it is “less obvious” whether the “agency relation” facilitated the harassment.76
In those cases, the Court has held that an employer can raise an affirmative defense to liability77
often called the Faragher-Ellerth defense.78 This defense requires that the employer establish, by
a preponderance of the evidence, two elements: (1) “that the employer exercised reasonable care
to prevent and correct promptly any sexually harassing behavior” and (2) “that the plaintiff
employee unreasonably failed to take advantage of any preventative or corrective opportunities
provided by the employer or to avoid harm otherwise.”79 By establishing both elements, an
employer avoids liability for supervisory harassment altogether, however severe or pervasive the
harassment at issue.80

Applying the Faragher-Ellerth Defense
Applying the Faragher and Ellerth decisions in sexual harassment cases, federal appellate courts
considering whether an employer has established the affirmative defense carefully evaluate, first,
the employer’s prevention and response measures, and second, a victim’s efforts to seek internal
remedies.81 For the first prong of the defense—that an employer “exercised reasonable care to
prevent and correct promptly” the harassment—federal courts consider a number of factors.82
These factors include the nature of the harassment at issue,83 the time it took for the employer to
respond,84 the quality of any investigation and remedial measures,85 evidence of an
74 Id. at 762.
75 Id. at 765.
76 Id.
77 Id; Faragher, 524 U.S. at 807–08.
78 See, e.g., Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 103 (2d Cir. 2010) (discussing availability of

“Faragher/Ellerth affirmative defense”).
79 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).
80 See id. at 807–08.
81 See, e.g., Crockett v. Mission Hosp. Inc., 717 F.3d 348, 356–58 (4th Cir. 2013).
82 See, e.g., Stuart v. Gen. Motors Corp., 217 F.3d 621, 633 (8th Cir. 2000) (“Factors the Court may consider when
assessing the reasonableness of [the employer]’s remedial measures include the amount of time elapsed between the
notice of harassment, which includes but is not limited to a complaint of sexual harassment, and the remedial action,
and the options available to the employer such as employee training sessions, disciplinary action taken against the
harasser(s), reprimands in personnel files, and terminations, and whether or not the measures ended the harassment.”).
83 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).
84 See, e.g., Hill v. Am. Gen. Fin., Inc., 218 F.3d 639, 643 (7th Cir. 2000) (holding that employer satisfied first prong of
affirmative defense when its action after receiving the plaintiff’s complaint was “immediate”). But see Jackson, 191
F.3d at 664 (stating that “the mere fact of a quick response” to complaints, “without more,” cannot satisfy the
employer’s “burden of proving that its action was a reasonable attempt to prevent and correct the problem”).
85 See, e.g., Jackson v. County of Racine, 474 F.3d 493, 502 (7th Cir. 2007) (holding that first prong of affirmative
(continued...)

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antiharassment policy,86 and any other evidence about an employer’s efforts to prevent and
respond to harassment.87 Though federal appellate courts generally agree that an employer’s
actions must be “reasonably calculated” to prevent or stop further harassment,88 courts differ in
how they evaluate this requirement.89
For example, when evaluating a sheriff’s office’s response to harassment that included sexual
assaults and a rape,90 the Tenth Circuit cited various features of the employer’s investigation of
the harassment that justified sending the case to trial to determine the reasonableness of the
response.91 Among other facts, the court said that the sheriff had assigned the investigation to a
detective who was never trained in conducting harassment investigations; this detective was a
close friend of the alleged harasser and considered him a mentor; the detective focused the
investigation on gathering details about the plaintiff’s sex life rather than the allegations of sexual
assault and rape; and the detective repeatedly told the plaintiff she should resign.92 Additionally,
when the detective informed the sheriff there was a possible rape, the sheriff instructed that the
investigation should stop, and there was no evidence that the department sought to improve its
sexual harassment program after that.93 Though the harasser later resigned, the court found that
that did not save the employer from liability.94

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 first prong satisfied based on
evidence including that the employer began investigating the day the plaintiff reported her supervisor’s conduct, and
that the harasser was removed from the workplace almost immediately).
86 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.”).
87 See, e.g., 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, even though transferring the victim, and not the harasser, was “not ideal”).
88 See Kramer v. Wasatch Cnty. Sheriff’s Off., 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,” could not satisfy defense (citation omitted)); 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 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., 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 antiharassment 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. S. Food Serv.,
Inc., 159 F.3d 177, 182 (4th Cir.1998))).
90 Kramer, 743 F.3d at 732–34.
91 Id. at 747–49 (examining aspects of the investigation and holding it insufficient to satisfy corrective prong).
92 Id. (stating that “[r]esponses to complaints that encourage the plaintiff to drop the complaint or otherwise penalize
the plaintiff certainly do not prove an employer’s reasonableness as a matter of law”).
93 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.

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In another case, the Eighth Circuit held that an employer satisfied the first prong of the
affirmative defense even though the employer refused to give the plaintiffs the results of the
investigation; shared the information with the alleged harasser, including the names and
statements of the witnesses; and permitted the harasser to continue to be present in the plaintiffs’
work area.95 The employer’s investigation found that the alleged harasser had engaged with
female employees in a “nonsexual” manner,96 though the behavior included “massaging their
shoulders, neck, and upper chest underneath their uniforms,” “going under their desks in order to
massage their legs,” and making comments about the physical appearance of women.97
Acknowledging “flaws” in the investigation, the court nevertheless cited among the “most
significant” facts establishing the first prong of the defense that the harassing behavior stopped
the day that one of the plaintiffs reported it to upper management.98
In evaluating the second prong of the defense—that the plaintiff unreasonably failed to take
advantage of an employer’s preventive or corrective opportunities—courts typically examine
whether the plaintiff used available reporting procedures.99 At times, a court may consider a
plaintiff’s justification for delaying a report or never reporting harassment out of fear of
retaliation or concern that the official responsible for resolving complaints is unlikely to remedy
the harassment.100
For example, the First Circuit held that an employer had not established that a plaintiff was
unreasonable when she delayed reporting an assault by her supervisor for a year.101 The court
reasoned that a jury could conclude the plaintiff’s delay was reasonable in part because she was a
teenager at the time of the assault while her supervisor was twice her age.102 In its analysis, the
court also considered the supervisor’s threats that the plaintiff would be fired if she reported the
assault, that both of them would be fired, and that he had influential ties to the owner of the
95 Weger, 500 F.3d at 716, 723–24.
96 Id. at 716.
97 Id. at 714 n.3.
98 Id. at 716, 723–24 (also stating 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, and stating that after the investigation, the harasser remained the plaintiffs’
superior in the department but was permanently removed from directly supervising them).
99 See, e.g., Hardage v. CBS Broad., Inc., 427 F.3d 1177, 1182, 1188 (9th Cir. 2005) (holding that plaintiff
unreasonably failed to invoke “preventative or corrective opportunities”; discussing facts that employer had an
antiharassment 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 to handle the situation himself), 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).
100 See, e.g., Kramer, 743 F.3d at 751 (quoting Reed, 333 F.3d at 35–36) (stating that though a generalized fear of
retaliation can never justify a failure to use internal grievance procedures, if such fear is based on “‘concrete reason[s]
to apprehend that complaint would be useless or result in affirmative harm to the complainant,’” the plaintiff’s
reasonableness becomes an issue to be resolved at trial); see also, e.g., Gorzynski, 596 F.3d at 104–05 (rejecting
defendant’s argument that plaintiff was unreasonable for failing to report harassment to another manager in addition to
her supervisor; holding that evidence created a jury question about whether plaintiff was reasonable to believe that
other avenues for reporting would be futile, where evidence reflected that two other managers had responded to earlier
complaints by admonishing the plaintiff and suspending another employee). But see Lauderdale v. Tex. Dep’t of Crim.
Just., 512 F.3d 157, 165 (5th Cir. 2007) (“In most cases, as here, once an employee knows his initial complaint is
ineffective, it is unreasonable for him not to file a second complaint, so long as the employer has provided multiple
avenues for such a complaint.”).
101 Reed, 333 F.3d at 37; see also id. at 30–31 (explaining factual context of case).
102 Id. at 37.

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company who had previously acted in his favor in another circumstance involving his rumored
involvement with a young woman.103
In contrast, the Eighth Circuit held that the employer in a different case had shown that the
plaintiffs, both officers in the police department, had acted unreasonably when they delayed
reporting their supervisor’s harassment for a year.104 The court rejected the plaintiffs’ arguments
that they credibly feared retaliation and doubted they would receive a fair investigation given the
close relationship between the harasser and the police chief.105 Though the court acknowledged
the “‘enormous difficulties involved in lodging complaints’” and the heightened psychological
burden of requiring victims to report harassment when they also perceive bias in the harasser’s
favor,106 the court said that only “credible” fears of retaliation could excuse a yearlong delay, and
without evidence of “any threat by any Department employee,” the plaintiffs did not make that
showing.107

Application of the Negligence Standard for Coworker Harassment
It is much harder to impose employer liability for a coworker’s, rather than a supervisor’s,
harassment. If the harasser was the plaintiff’s coworker, courts do not ask whether the employer
should have affirmatively tried to prevent harassment in the first place. Rather than make the
employer prove that it did enough and that the plaintiff behaved unreasonably, courts put the
burden of proof on the plaintiff to show that the employer was negligent. That is, the plaintiff
must generally show that the employer knew or should have known about the harassment and
failed to take effective remedial action.108 Framed differently, in coworker harassment cases, the
employer may only be liable if the plaintiff can show that the employer unreasonably allowed the
harassment to persist.109 How this standard is applied in sexual harassment cases depends heavily
on the facts and varies from case to case.110
To determine whether an employer “knew (actual notice) or should have known (constructive
notice)” of the offensive conduct, courts look at all of the circumstances. Courts have generally
found that employers receive notice when plaintiffs report to management personnel who are

103 Id.
104 Weger v. City of Ladue, 500 F.3d 710, 714, 720, 726 (8th Cir. 2007).
105 Id. at 725.
106 Id. (quoting Coates v. Sundor Brands, Inc., 164 F.3d 1361, 1366 (11th Cir. 1999)).
107 Id. (also stating that “the reasonableness of Plaintiffs’ fears of retaliation is further called into question because the

Department’s antiharassment policy contained an antiretaliation provision”); 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).
108 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))).
109 Vance v. Ball State Univ., 570 U.S. 421, 423 (2013).
110 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).

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designated to receive harassment complaints.111 When complainants report to someone not so
designated, it is less obvious whether an employer should be charged with knowledge. Courts
have held that it is not enough for a complainant to tell just anyone about the harassment; the
employer must have been given a “reasonable chance of being able to respond to the
information.”112 For this inquiry, the company’s organizational structure matters but is not
decisive.113 Ultimately, courts have looked at whether an employee “complain[ed] to someone
who could reasonably be expected to refer the complaint up the ladder to the employee authorized
to act on it.”114
Regardless of a report, if a manager actually witnesses harassment or similarly inappropriate
conduct, it may amount to notice.115 Further, a company cannot escape liability by adopting a “see
no evil, hear no evil” strategy.116 An employer that lacks reasonable mechanisms or procedures
for reporting misconduct, for example, may be charged with constructive knowledge of the
coworker harassment at issue.117
Even without evidence of a report to management or of a manager who witnesses sexual
harassment, courts may impute knowledge of the harassment to the employer if there is other
evidence to support the inference. For example, in Duch v. Jakubek, the Second Circuit found that
a reasonable jury could conclude that a supervisor had notice of sexual harassment in light of the
circumstances, including that the plaintiff had sought to change her schedule to avoid working
with the harasser; the harasser had engaged in sex-related misconduct in the past; the supervisor
had told the harasser to “cut it out [and] grow up”; and the supervisor had observed that working
around the harasser caused the complainant to become emotional and visibly upset.118 Similarly,
in Hawkins v. Anheuser-Busch, Inc., the Sixth Circuit held that a jury could find that a brewery
knew or should have known of harassing conduct.119 There, even though the plaintiff never
reported individual incidents of harassment or cited sexual harassment in her complaints, the
court emphasized that she had repeatedly complained about her coworker’s “unbearable”
behavior and asked for a transfer, and that the harasser had a known history of sexual
harassment.120 Thus, overall, the inquiry into whether an employer is on notice of harassment is
not a mechanical one, but depends on the evidence.
Beyond establishing actual or constructive knowledge of the harassment, to establish negligence,
a plaintiff must also show that the employer failed to take prompt and appropriate corrective
111 See, e.g., Breda v. Wolf Camera & Video, 222 F.3d 886, 889 (11th Cir. 2000) (“[I]f an employer has a company

policy specifically designating the person or persons to whom an employee should report instances of suspected sexual
harassment, once the employee complains to the designated person or persons, the employer is deemed to have actual
notice of the harassment.”); Williamson v. City of Houston, 148 F.3d 462, 466 (5th Cir 1998) (“The conclusion that the
City can be held liable on the basis of Bozeman’s knowledge is put beyond doubt by the HPD’s sexual harassment
policy, which specifically directs those who believe they have been harassed to report it to their supervisors.”).
112 Young v. Bayer Corp., 123 F.3d 672, 674 (7th Cir. 1997).
113 Williamson v. City of Houston, 148 F.3d 462, 466 (5th Cir. 1998).
114 Young, 123 F.3d at 675; see also Duch, 588 F.3d at 763 (holding that a report to a nonsupervisory coworker sparks
employer liability only if “that co-worker has an official or strong de facto duty to act as a conduit to management for
complaints about work conditions”).
115 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).
116 Ocheltree v. Scollon Prods., 335 F.3d 325, 334 (4th Cir. 2003).
117 Id.
118
Duch, 588 F.3d at 765 (alteration in original).
119 517 F.3d 321, 339 (6th Cir. 2008).
120 Id. at 339–40.

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action.121 This showing does not mean the employer must take all actions that a plaintiff requests:
“all that [the employer is] required to do . . . [is] to take prompt action reasonably calculated to
end the harassment.”122 Employers must take actions which seek to end current harassment and
deter future harassment in the given context of that workplace.123 In Berry v. Delta Airlines, for
example, the Seventh Circuit concluded that an employer reacted promptly and appropriately to
end harassment where the employer immediately contacted its local Equal Employment
Opportunity Commission (EEOC) office, began an investigation, confronted the harasser and
later changed his shift to separate him from the victim, and required all local employees to view a
sexual harassment training video.124 These actions stopped the harassment and were sufficient, in
the court’s view, even though the plaintiff argued that the employer could have done more, such
as separating her from the harasser at an earlier date, ordering the harasser to leave her alone, or
requiring employees to engage in discussion sessions.125
In contrast, courts have held that an employer response is inadequate where, for example, an
employer advises or counsels a harasser to stop without taking any other actions or imposing
discipline,126 or involuntarily transfers the plaintiff.127 Further, even if the employer’s actions stop
the harassment, that fact alone may be insufficient to show an effective response. In one Sixth
Circuit case, the employer argued that it responded adequately to a plaintiff’s allegations of
harassment by transferring her to another shift at her request, launching a prompt investigation
including interviewing many employees, and sending the complainant a letter informing her when
the investigation was complete and that retaliation would not be tolerated.128 The appellate court
found that these measures could not justify summary judgment for the employer.129 Even though
the harassment stopped because of the transfer, and the employer argued that the evidence
revealed in its investigation provided insufficient grounds under its collective bargaining
agreement to terminate the harasser, the court observed that the harasser had a history of sexually

121 Vance v. Ball State Univ., 570 U.S. 421, 427 (2013).
122 Berry v. Delta Airlines, Inc., 260 F.3d 803, 812–13 (7th Cir. 2001). But see Reynaga v. Roseburg Forest Products,

847 F.3d 678, 690 (9th Cir. 2017) (“[P]rompt action is not enough. The remedial measures must also be effective.”).
123 Fuller v. City of Oakland, 47 F.3d 1522, 1528 (9th Cir. 1995).
124 Berry, 260 F.3d at 813; 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. Ill. Dep’t of Transp., 92 F.3d 473, 476 (7th Cir. 1996). 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).
125 Berry, 260 F.3d at 813.
126 See, e.g., Waltman v. Int’l Paper Co., 875 F.2d 468, 470 (5th Cir. 1989); Loughman v. Malnati Org., Inc., 395 F.3d
404, 407 (7th Cir. 2005); EEOC v. Sunbelt Rentals, 521 F.3d 306, 310 (2008).
127 Ellison v. Brady, 924 F.2d 72, 75 (9th Cir. 1991); see also EEOC, Enforcement Guidance on Vicarious Employer
Liability for Unlawful Harassment by Supervisors, 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/wpcontent/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-2024harassment-guidance [https://perma.cc/83GD-Y6RG]. It is currently unclear if the 1999 guidance is in effect.
128 Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 341–42 (6th Cir. 2008).
129 Id. at 344.

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inappropriate conduct and a history of lying about it.130 Under those circumstances, the court
concluded that a jury could find that the remedy was insufficient.131

Harassment by Non-Employees
In some cases, courts have recognized that an employer can be liable for harassment by someone
other than an employee—a customer, patient, or client, for example. Most courts to consider the
matter have concluded that an employer is liable for their negligence, the same standard that
applies to coworker harassment.132 An EEOC regulation also adopts this standard.133 To succeed
in these claims, a plaintiff must show “that the employer knew or should have known of the
hostile work environment but failed to take reasonable measures to try and stop it.”134
Accordingly, as one court put it, an “employer’s response to a third party’s unwelcome sexual
advances toward an employee can independently create a hostile work environment.”135 Courts
applying the negligence standard to employers in the context of third-party sexual harassment
have considered, among other things, whether the employer’s response subjected the employee to
further abuse.136 Thus the Ninth Circuit held that a manicurist could state a claim for a hostile
work environment when he told his manager that a customer had asked for sex, and his manager
ordered him to complete the customer’s pedicure. The court said that this response “discounted
and effectively condoned the customer’s sexual harassment” and sent a message that he “was
expected to tolerate the customer’s harassment as part of his job.”137 Similarly, the Fifth Circuit
ruled that a nurse’s claim about a patient’s persistent groping could go to a jury, given that the
employer knew about the behavior and her complaints were “met with laughter and dismissal.”138
Two federal appellate courts—the Sixth and Seventh Circuits—have in some cases declined to
apply a negligence standard for non-employee harassment.139 They use instead a standard more
favorable to employers. Under this standard, an employer is liable only if it either intended to
130 Id. at 344–45.
131 Id.; see also EEOC v. Cent. Wholesalers, 573 F.3d 167, 177–78 (4th Cir. 2009) (holding that employer’s response

could not justify summary judgment where employer took no or delayed action in response to some of the employee’s
complaints even while responding to other complaints).
132 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”).
133 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”).
134 Gardner v. CLC of Pascagoula, L.L.C., 915 F.3d 320, 327 (5th Cir. 2019), as revised (Feb. 7, 2019).
135 Fried, 18 F.4th at 650.
136 Id. at 651.
137 Id. at 652.
138

Gardner, 915 F.3d at 327.

139 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).

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cause the harassment or was substantially certain that harassment would result from its actions.140
The Sixth Circuit grounded its departure from the negligence rule adopted by the majority of
courts in agency principles, reasoning that customers “rarely agree to act on the corporate
proprietor’s ‘behalf’” and “are not agents of that company.”141 The court also opined, however,
that “many of the circuit cases that nominally apply a negligence standard would likely have been
resolved the same way under the intent standard we adopt.” The court explained that plaintiffs
harassed by customers in those cases often complained of inaction despite the employer knowing
about repeated harassment.142

Disputed Supervisory Status and Vance v. Ball State University
Under the Faragher-Ellerth paradigm, a harasser’s position in the workplace—as a supervisor,
coworker, or third party—has significant legal implication.143
Given the legal significance of the harasser’s status, parties often dispute the issue, and courts in
turn must determine whether the evidence shows that the harasser was a supervisor or
coworker.144 The Faragher-Ellerth decisions did not define the meaning of “supervisor,”145 and
lower courts in turn applied varying interpretations in the absence of a definition.146
Against a backdrop of disagreement among circuit courts concerning the type of evidence
indicative of supervisory status, the Supreme Court addressed the issue in its 2013 decision in
Vance v. Ball State University.147 The Court in Vance held, in a 5-4 decision, that for purposes of
hostile work environment claims, a supervisor is one who has the authority to take actions in the
workplace such as hiring, firing, making promotion decisions, reassigning to positions “‘with
significantly different responsibilities,’” or making decisions “‘causing a significant change in
benefits.’”148 The Court rejected a definition based on whether the alleged harasser had authority
140 Bivens, 147 F.4th at 648.
141 Id. at 647.
142 Id.
143 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”).
144 See, e.g., Howard, 466 F.3d at 566–67; Wyatt v. Hunt Plywood Co., 297 F.3d 405, 411 (5th Cir. 2002).
145 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”).
146 Id. at 430 (“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.”); Howard, 466 F.3d at 566 (holding that harasser was not plaintiff’s supervisor, as harasser lacked the
authority to fire, promote, demote, or reassign the plaintiff, which the court viewed as the “most powerful indication of
supervisory status”); Mack v. Otis Elevator Co., 326 F.3d 116, 120, 126–27 (2d Cir. 2003), abrogated by Vance v. Ball
State Univ., 570 U.S. 421 (2013) (holding that harasser was supervisor, though it was undisputed that he lacked the
authority to hire, fire, demote, promote, transfer, or discipline the plaintiff, where harasser was the “mechanic in
charge” who assigned and scheduled the plaintiff’s work and could enforce safety practices and procedures; framing
the primary issue as being “whether the authority given by the employer to the employee enabled or materially
augmented the ability of the latter to create a hostile work environment for his or her subordinates”).
147 Vance, 570 U.S. at 421.
148 Id. at 432. Though the facts in Vance concerned a Title VII claim alleging race-based harassment, the holding in
Vance applies to all Title VII harassment claims. In general courts apply the same legal standards for analyzing
actionable harassment under Title VII, whether that be for harassment based on race, sex, national origin, or religion.
(continued...)

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to direct the victim’s daily work, thereby narrowing the definition of supervisor that some lower
courts had previously applied 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
See, e.g., EEOC v. Cent. Wholesalers, 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, 399–02 (5th Cir. 2007) (analyzing Title VII
harassment claims based on religion and national origin).
149 Vance, 570 U.S. at 431 (“We reject the nebulous definition of a ‘supervisor’ advocated in the EEOC Guidance and
substantially adopted by several courts of appeals.”); 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.’”).
150 Id. at 440.
151 Id. at 441.
152 Id. at 446.
153 Id. at 445.
154 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”).
155 743 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).
156 AutoZone, 692 F. App’x at 283.
157 Id. at 281, 283.

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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

Additional Types of Sexual Harassment
Same-Sex Harassment
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

158 Id. at 283–84.
159 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.”).
160 AutoZone, 692 F. App’x at 284 (citing Vance v. Ball State Univ., 570 U.S. 421, 423 (2013)).
161 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).
162 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.”).
163 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).
164 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.”).

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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
In Oncale, the Supreme Court addressed a hostile work environment claim brought by a male
plaintiff, a member of an all-male oil rig crew, who alleged harassment by his coworker and two
supervisory personnel.167 The defendants and amici argued that harassment between members of
the same sex should be excluded categorically from Title VII liability, on the theory that
recognizing liability for same-sex harassment would “transform Title VII into a general civility
code for the American workplace.”168 The Court disagreed, concluding that the text of Title VII
imposes liability where discrimination is “because of . . . sex” and that “nothing in Title VII
necessarily bars a claim of [sex discrimination] merely because the plaintiff and the defendant (or
the person charged with acting on behalf of the defendant) are of the same sex.”169 As the Court
stated, “[t]he critical issue . . . is whether members of one sex are exposed to disadvantageous
terms or conditions of employment to which members of the other sex are not exposed.”170
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

165 523 U.S. 75, 80 (1998).
166 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.”).
167 Oncale, 523 U.S. at 77.
168 Id. at 80.
169 Id. at 79.
170 Id. at 80.
171 Id.
172 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.
173 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”).

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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
174 Id. at 81–82.
175 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).
176 Id. Other cases applied multiple routes or did not apply any specific Oncale route.
177 Id. at 70.
178 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)).
179 Cherry v. Shaw Coastal, Inc., 668 F.3d 182, 187–88 (5th Cir. 2012).
180 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).
181 396 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).
182 Id. at 1098.
183 Id.

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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

Harassment Because of Sexual Orientation or Gender Identity
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
184 Wade v. Automation Pers. Servs., 612 F. App’x 291, 294 (6th Cir. 2015).
185 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 “sexspecific and derogatory nature of these comments means that the sex of the harassers does not change the outcome of
this case”).
186 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”).
187 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).
188 490 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).
189 EEOC v. Boh Bros. Constr. Co., LLC, 731 F.3d 444, 459–60 (5th Cir. 2013).
190 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).

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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
191

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

192 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).
193 Newbury v. City of Windcrest, 991 F.3d 672, 677 (5th Cir. 2021).
194 Kilpatrick v. HCA Hum. Res., LLC, No. 22-5307, 2023 WL 1961223, at *4 (6th Cir. Feb. 13, 2023).
195 Id.
196
Boshaw v. Midland Brewing Co., 32 F.4th 598, 601 (6th Cir. 2022).
197 Id. at 606.
198 Copeland v. Ga. Dep’t of Corr., 97 F.4th 766, 770 (11th Cir. 2024).

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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.

199 Id. at 771.
200 Id.
201 Id.
202 Id. at 777.
203 Id. at 778. The plaintiff was attacked and injured by an inmate. Id.
204 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”).
205 998 F.3d 111, 121 (4th Cir. 2021).
206 Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 115 (4th Cir. 2021).
207 Id. at 121.
208 Id. at 681.
209 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).

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Sexist Harassment
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
210 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.”).
211 Passananti v. Cook County, 689 F.3d 655, 664 (7th Cir. 2012).
212 Hall v. Gus Constr. Co., 842 F.2d 1010, 1014 (8th Cir. 1988).
213 Passananti, 689 F.3d at 664.
214 Id.; Williams, 187 F.3d at 559 (observing that, among other things, a worker threw boxes at plaintiff).
215 Hall, 842 F.2d at 1012, 1015.
216 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”).
217 Passananti, 689 F.3d at 667.
218 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”).
219 42 U.S.C. § 2000e(k).
220 Zisumbo v. McCleod USA Telecomms. Servs., Inc., 154 F. App’x 715, 726 (10th Cir. 2005).
221 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).
222 CRS Report R46821, Pregnancy and Labor: An Overview of Federal Laws Protecting Pregnant Workers, by April
J. Anderson (2023).

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Additional Causes of Action for Sexual Harassment
Quid Pro Quo Harassment
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, w

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR45155. Public record. Not legal advice.