Holden v. Owens-Illinois, Inc. Petition for a Writ of Certiorari to the US Court of Appeals for the Sixth Circuit

    No. 92-1168

In The

Supreme Court of tfje Umtetr States;
October Term, 1992

Teresa Harris,

v.
F orklift Systems, Inc.,

Petitioner,

Respondent.

On Writ of Certiorari 
To the United States Court of Appeals 

For the Sixth Circuit

BRIEF AMICI CURIAE OF THE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC. AND 
THE NATIONAL COUNCIL OF JEWISH WOMEN 

IN SUPPORT OF PETITIONER

E laine R. J ones 
E ric Schnapper*
NAACP Legal Defense and 

E ducational Fund, Inc.
99 Hudson Street 
16th Floor
New York, N.Y. 10013 
(212) 219-1900

Counsel fo r Amici

* Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



TABLE OF CONTENTS

T a b l e  o f  A u t h o r it ie s  .....................................................   iii

In t e r e s t  o f  A m ic i Cu r ia e  .........................    l

Su m m a r y  o f  A r g u m e n t  ......................................................... 2

A r g u m e n t  .......................................................................................  3

In t r o d u c t io n  ...............................................................................  3

I. T h e  A c tio ns  Ch a r a c t e r iz e d  b y  T his 
C o u r t  a n d  t h e  L o w e r  C o u r t s  as 
"Ha r a s sm e n t " E n c o m pa ss  Se v e r a l  
D istin c t  T y pes  o f  P r a c t i c e s ...............................  6

A. The Types of Practices Involved in
"Harassment" C ases.................................  7
(1) Discrimination in Employer

Mandated Terms of
Employment— ............................. 7

(2) Facially Neutral Harassment on
Account of Race or Gender— . . 8

(3) Race or Gender Specific
Harassment— .............................  8

(4) Sexual Harassment— ........................  9
(5) Quid Pro Quo Sexual

Demands— .................................  9

B. The Legal Principles Applicable to Each . . .  10



11

II. T h e  Six t h  Cir c u it  R e q u ir e m e n t  o f  
Pr o o f  o f  Se r io u s  P s y c h o l o g ic a l  
In ju r y  is  In c o n sist e n t  W it h  T it le  V II 
a n d  T h is  C o u r t ’s D e c is io n  in  M e r it o r  
Sa v in g s  Ba n k  v  Vin s o n  . . . . . . . . . . . . . . . .  13

A. The Rationale o f the Opinion in Rabidue
Flatly Repudiates The Principles of
Title V I I ............................................ .. . 13

B. The Substance of the Rabidue Rule Is
Inconsistent With Title VII . . . . . . . . . .  17

III. T h e  M a g is t r a t e ’s E v a l u a t io n  o f  t h e  
C ir c u m st a n c e s  o f  T h is  Ca s e  W as  
In c o n sist e n t  W it h  T itle  V II . . . . . . . . . . .  20

C o n c l u s i o n .............. .. .............................. ................  24

A p p e n d ic e s



TABLE OF AUTHORITIES 

CASES

Andrews v. City of Philadelphia,
895 F.2d 1469 (3d Cir. 1990) ..........................  12

Barbetta v. Chemlawn Services Corp.,
669 F. Supp. 569 (W.D.N.Y. 1987)......... .. 5

Bell v. Crackin Good Bakers, Inc.,
777 F.2d 1497 (11th Cir 1985) ............... .. 20

Bohen v. City of East Chicago, Ind.,
799 F.2d 1180 (7th Cir. 1986) ......................  3, 12

Brooms v. Regal Tube Co.,
881 F.2d 412 (7th Cir. 1989) ...................... 4

Brown v. Board of Education,
347 U.S. 483 (1954) ..........................................  5

Bundy v. Jackson,
841 F.2d 934 (D.C.Cir. 1981)............................. 9

Bums v. McGregor Electronic Industries, Inc.,
955 F.2d 559 (9th Cir 1992) ........................... 17

Carrero v, New York City Housing Authority,
890 F.2d 569 (2d Cir. 1989) ........... ..........  11, 18

Carroll v. Talman Federal Savings & Loan Ass’n,
604 F.2d 1028 (7th Cir. 1979) ..........................  8

Carter v. Duncan-Huggins, Ltd.,
727 F.2d 1225 (D.C.Cir. 1984) ......................... 10

Daniels v. Essex Group, Inc.,
937 F.2d 1264 (7th Cir. 1991) ......................  4, 12

iii



IV

DeGrace v. Rumsfeld,
614 F.2d 796 (1st Cir. 1980) . ................ 16

EEOC Dec. No. 71-2042,
3 FEP Case 1102 (1971) . . . . . . . . . . . . . . . . .  8

Ellison v. Brady,
924 F.2d 872 (9th Cir. 1991) . . . . . . . . . . . . .  18

Ellison v. Brady,
924 F.2d 872 (9th Cir. 1991) ------ . 4, 11, 12, 13

Erebia v. Chrysler Plastics Products Corp.,
772 F.2d 1250 (6th Cir. 1985) . . . . . . . . . . . . .  4

Goodman v. Lukens Steel Co.,
482 U.S. 656 (1987) .......................................... 6

Hamilton v. Rodgers,
791 F.2d 439 (5th Cir. 1986) ............................  7

Henson v. City of Dundee,
682 F.2d 897 (8th Cir. 1982) . . . . . . . . . . . . . .  9

Hicks v. Gates Rubber Co.,
833 F.2d 1406 (10th Cir. 1987) . .............. 10

Horn v. Duke Homes, Div. of Windsor Mobile Homes,
755 F.2d 599 (7th Cir. 1985) ............................. 4

Horn v. Duke Homes, Division of
Windsor Mobile Homes, Inc.,
755 F.2d 599 (7th Cir. 1985) ............................  9

Lipsett v. University of Puerto Rico,
864 F.2d 881 (1st Cir. 1990) ...............................  7

Lopez v. S.B. Thomas,Inc.,
831 F.2d 1184 (2d Cir. 1987) ...........................  12



Meritor Savings Bank v. Vinson,
477 U.S. 57 (1986)..................... ................. passim

NAACP v. Button,
371 U.S. 415 (1963) ............................... 1

North v. Madison Area Ass’n for Retarded Citizens,
844 F.2d 401 (7th Cir. 1988) ..........................  11

Patterson v. McLean Credit Union,
491 U.S. 164 (1989)................................... .. 4, 7, 8

Phillips v. Smalley Maintenance Services, Inc.,
711 F.2d 1524 (11th Cir. 1983)........................  17

Plessy v. Ferguson,
163 U.S. 537 (1896) ........................................ 21

Priest v. Rotary,
98 F.R.D. 755 (N.D.Cal. 1983) ......................  23

Proline v. Unisys Corp.,
879 F.2d 100 (4th Cir. 1989) .................. 4, 11, 12

Rabidue v. Osceola Refining Co.,
805 F.2d 611 (6th Cir. 1986) ......................passim

Snell v. Suffolk County,
611 F. Supp. 521 (E.D.N.Y. 1985) .................... 7

Snell v. Suffolk County,
782 F.2d 1094 (2nd Cir. 1986) ........................  13

Sparks v. Pilot Freight Carrier, Inc.,
830 F.2d 1554 (11th Cir. 1987)..........................  9

Teamsters v. United States, 
431 U.S. 324 (1977) 6



VI

Vance v. Southern Bell Teh and Tel. Co.,
863 F.2d 1503 (11th Cir. 1989) . . . . . ___ _ . 4, 12

Walker v. Ford Motor Co.,
684 F.2d 1355 (11th Cir 1982) . . . . . . . . . . . .  14

Yates v. Avco Corporation,
819 F.2d 630 (6th Cir. 1987) . . . . . . . . . . . .  4, 18

STATUTES

29 C.F.R. §1604.11(d) . .................... .. 11

42 U.S.C. ch.21 . . . . . . . . . . . . . . . . . . . . . . . . . . . .  24

42 U.S.C. §1977A(b)(3) ......... .....................................  19

Civil Rights Act of 1991, Section 102 ............. .. 19

Title VII of the Civil Rights Act of 1964 . . . . . . .  passim

Title VII of the Civil Rights
Act of 1964, Section 703 (a) . . . . . . . . . . . . . . .  . 6

MISCELLANEOUS

Prosser On Torts, section 80 ...........................................  17



No. 92-1168

In  T h e

Supreme Court of tije llmteb States
O c t o b e r  T e r m , 1992

Te r e s a  H a r r is ,

v.

Petitioner,

F o r k lift  Sy st e m s , In c .,
Respondent.

On Writ of Certiorari To the United States Court of 
Appeals For the Sixth Circuit

BRIEF AMICI CURIAE OF THE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC., AND 
THE NATIONAL COUNCIL OF JEWISH WOMEN 

IN SUPPORT OF PETITIONER

Interest  o f  Am ic i Curiae1

The NAACP Legal Defense Fund, Inc., is a non­
profit corporation that was established for the purpose of 
assisting black citizens in securing their constitutional and 
civil rights. This Court has noted the Fund’s "reputation for 
expertness in presenting and arguing difficult questions of 
law that frequently arise in civil rights litigation." NAACP v. 
Button, 371 U.S. 415, 422 (1963). A significant portion of 
the Fund’s litigation has concerned Title VII of the Civil

1 Letters of consent to the filing of this Brief have been filed with 
the Clerk of the Court.



2

Rights Act of 1964 and the proper scope of constitutional 
and statutory rights to equal employment opportunity.

The National Council of Jewish Women (NCJW), 
Inc., is a volunteer organization inspired by Jewish values, 
that works through a program of research, education, 
advocacy and community service to improve the quality of 
life for women, children and families and strives to ensure 
individual rights and freedoms for all. Founded in 1893, the 
National Council of Jewish Women has 100,000 members in 
over 500 communities around the country. The National 
Council of Jewish Women believes that individual liberties 
and rights guaranteed by the Constitutional are keystones of 
a free and pluralistic society. Based on the NCJW’s 
National Resolutions stating our resolve to work for the 
"enforcement of sexual harassment laws and more stringent 
penalties for violators," we submit this brief.

Summary  o f  Arg u m en t

Since this Court’s decision in Meritor Savings Bank v. 
Vinson, 477 U.S. 57 (1986), the experience of the lower 
courts has revealed there are five distinct types of practices 
that are loosely described as "harassment." These are (1) 
discrimination in employer mandated terms of employment,
(2) facially neutral harassment on account of race or gender,
(3) race or gender specific harassment, (4) sexual 
harassment, and (5) quid pro quo sexual demands.

The magistrate’s decision in the instant case was 
based on the Sixth Circuit decision in Rabidue v. Osceola 
Refining Co., 805 F. 2d 611, 619 (6th Cir. 1986), which held 
that harassment is legal under Title VII unless it "affected 
seriously the psychological well being" of the victim. The 
rule in Rabidue improperly requires victims of harassment to 
endure that abuse for possibly extended periods of time until 
the requisite amount of injury has occurred. Until that point 
is reached Rabidue treats the workplace as a "free fire zone." 
Department of Defense Inspector General, Tailhook 91, pt. 
2, p. X-l (1993).



3

The magistrate held that denigrating and demeaning 
treatment of women was a recurrent condition of 
employment at Forklift Systems, but insisted that no 
violation of Title VII had occurred because that treatment 
was not "abusive". This Court’s decision in Meritor 
recognizes no such distinction.

Argum ent

I ntroduction

Seven years ago, in Meritor Savings Bank v. Vinson, 
M l U.S. 57 (1986), this Court held that the prohibitions of 
Title VII are not limited to discriminatory conduct that 
causes economic injury, but reach any form of mistreatment 
on the basis of race, sex, national origin or religion.

The application of Title VII to non-economic injury 
is important for two distinct reasons. First, minorities and 
women are not afforded equal treatment if, in order to hold 
the same job or receive the same wages as whites or men, 
they must endure abuses or bear additional burdens not 
imposed on others.2 Harassment on the basis of race or 
gender aggravates longstanding injuries and sensitivities 
rooted in the history of the very discrimination and 
intolerance which led to the enactment of the 1964 Civil 
Rights Act.

Second, mistreatment of a non-economic nature is 
likely to lead, in ways difficult to detect, delineate or 
remedy, to discrimination in promotion and dismissal, with 
attendant economic harm. The experience of the lower 
courts in harassment cases has confirmed what common 
sense would have suggested; given a choice among otherwise

2 "Forcing women and not men to work in an environment of 
sexual harassment is no different than forcing women to work in a 
dirtier or more hazardous environment than men simply because they 
are women." Bohen v. City of East Chicago, Ind., 799 F. 2d 1180, 1165 
(7th Cir. 1986).



4

comparable jobs, minorities and women will understandably 
choose to work at a plant or office where abuse or other 
forms of mistreatment are not a foreseeable condition of the 
job. At least if they had any other real alternatives, many 
women would not take a job at Forklift Systems if they knew 
they would be treated the way petitioner was, or, in the case 
of blacks, choose to work at McLean Credit Union under 
the circumstances alleged by Brenda Patterson. Patterson v. 
McLean Credit Union, 491 U.S. 164 1989). In actual 
harassment cases the victims frequently seek to transfer to 
other jobs, even if less desirable3, or simply resign.4 A  
pattern of harassment could purge minorities or women 
from a position or employer as effectively is more direct 
exclusion. For those who choose to stay, harassment 
frequently poisons their relations with supervisors and fellow 
employees.5 In the instant case, Hardy’s overt harassment of 
petitioner led other employees to treat her in a similar

3 See, e.g., Ellison v. Brady, 924 F. 2d 872, 881-82 (9th Cir. 1991); 
Vance v. Southern BeU. Tel and Tel Co., 863 F. 2d 1503, 1508 (11th 
Cir. 1989); Yates v. Avco Corporation, 819 F. 2d 630, 632 (6th Cir. 
1987).

4 See, e.g., Daniels v. Essex Group, Inc., 937 F. 2d 1264 (7th Cir. 
1991); Brooms v. Regal Tube Co., 881 F. 2d 412 (7th Cir. 1989)proline 
v. Unisys Carp., 879 F. 2d 100 (4th Cir. 1989).

3 "[A]n employee may react angrily to the racial harassment, and 
may more easily be provoked into arguments or physical altercations 
with those co-workers responsible for the harassment." Daniels v. 
Essex Group, Inc., 937 F. 2d 1264, 1272 (7th Cir. 1991). See also 
Erebia v. Chrysler Plastics Products Corp., 772 F. 2d 1250, 1252 (6th 
Cir. 1985)(victim "called an hourly employee a ‘gringo’ after the 
employee had called him a ‘wet back’"); Horn v. Duke Homes, Div. of 
Windsor Mobile Homes, 755 F. 2d 599,602 (7th Cir. 1985)(after 
perpetrator had made repeated sexual advances, brushed up against 
victim’s breasts, and demanded sex in return for a raise, victim 
threatened to "put him in his place with a weapon").



5

manner (tr. p. 25), and undermined her authority.6 
Harassment of employees on the basis of race or gender may 
affect the ambitions and self-esteem of the victims "in a way 
unlikely ever to be undone." Brown v. Board of Education, 
2>A1 U.S. 483, 494 (1954).

Notwithstanding the importance of eradicating these 
types of discrimination, the lower courts have responded in 
strikingly inconsistent ways to this Court’s decision in 
Meritor. Essentially identical facts have been declared a 
serious violation of Title by one court, but upheld as entirely 
lawful by another. What is legal or not under Title VII 
varies not only from circuit to circuit, but from judge to 
judge. The particular result in this case was dictated by the 
Sixth Circuit decision in Rabidue v. Osceola Refining Co., 805 
F. 2d 611, 619 (6th Cir. 1986), that harassment is permitted 
by Title VII except where it "affected seriously the 
psychological well being" of the victim.

We emphasize that all that is at issue in this case is 
the standard for determining what is lawful under Title VII. 
In order to obtain one of the various forms of relief 
available for a violation of Title VII, such as injunctive 
relief, compensatory damages, punitive damages, back pay, 
or, in the case of an alleged constructive discharge, 
reinstatement, a plaintiff may have to establish additional 
elements. What those elements may be, and whether they 
were established here, are not before the Court, because the 
courts below held that the pattern of conduct in this case 
was entirely lawful, and thus did not reach those remedial 
questions.

6 Sexual harassment can "create an atmosphere in which women 
are viewed as men’s sexual playthings rather than as their equal 
coworkers." Barbetta v. Chemlawn Services Corp., 669 F.Supp. 569, 573 
(W.D.N.Y. 1987).



6

I. Th e  Ac tio ns  C haracterized  by  Th is  Co u r t  and  
th e  Low er  Co u r ts  as "Ha r assm en t" E n c o m pa ss  
S everal D istin c t  T ypes o f  P ractices

Section 703(a) of Title VII forbids an employer "to 
discriminate against any individual with respect to his . . . 
terms, conditions, or privileges of employment, because of 
such individual’s race, color, religion, sex, or national origin." 
Disparate treatment, which is the gravamen of this action, is 
the most obvious evil that Congress had in mind when it 
enacted Title VII. Disparate treatment occurs when an 
employer "treats some people less favorably than others 
because of their race, color, religion, sex, or national origin." 
Teamsters v. United States, 431 U.S. 324, 335 n. 15 (1977). 
There is no requirement that an employer have harbored 
any "animus against" the group subjected to unfavorable 
treatment; an employer which engages in disparate 
treatment of a protected group is liable under Title VII even 
though it may have been "favorably disposed toward" its 
victims. Goodman v. Lukens Steel Co., 482 U.S. 656, 668-69 
(1987).

Meritor of course held that the disadvantage imposed 
by the disparate treatment need not be economic. The 
Court used a variety of terms to describe disadvantageous 
circumstances that might cause injury of a non-economic 
nature, including "hostile" , "offensive", "intimidating", and 
"abusive", or involving "ridicule" or "insult"7. These terms 
were illustrative of the types of circumstances that might 
cause non-economic injury. Although Meritor and the 
EEOC Guidelines use the phrase "hostile environment” to 
summarize these circumstances, the term "hostile" is 
employed in the broad sense of inhospitable or 
discriminatory. Disparate treatment is equally unlawful 
whether the perpetrator intended to harm the victim or 
merely thought discrimination and derogatory abuses were 
amusing. Derogatory jokes which cast a protected group in 
an unfavorable light are disparate treatment fully as much as

7 477 U.S. at 62-73.



7

non-humorous slurs.8

A. The Types of Practices Involved in "Harassment? Cases
The decisions of this Court and the lower courts have 

characterized as "harassment" at least five different types of 
practices. We set forth in an Appendix to this brief a list of 
reported appellate decisions in which these practices were 
found or alleged to have occurred, and summarize them 
briefly below.

(1) Discrimination in Employer Mandated Terms of
Employment—

An inherent part of the employment relationship is 
that the employer is entitled, subject to certain legal 
constraints, to direct how an employee, and his or her fellow 
employees, will act during the period they are at work. 
Employers routinely determine to a large degree what tasks 
employees will perform and how they will do so, as well as 
controlling, often in considerable detail, how employees will 
act while at the plant or office.

A number of the so-called harassment cases involve 
situations in which the employer utilized this authority to 
mandate for women or minorities terms of employment that 
were both different than and disadvantageous compared to 
the treatment of other comparable workers. For example, 
in Patterson v. McLean Credit Union, 491 U.S. 164 (1989), 
the black plaintiff alleged she had been required to do more 
work than whites, and had been assigned to dust and sweep 
when white bank employees in the same position were not. 
In the instant case petitioner alleged she was repeatedly sent 
out to get coffee, a menial task fraught with stereotyped

8 See, e.g., Lipsett v. University of Puerto Rico, 864 F. 2d 881 906 
(1st Cir. 1990)("Belittling comments about a person’s ability to 
perform, on the basis of that person’s sex, are not funny."); Hamilton 
v. Rodgers, 791 F. 2d 439, 441 (5th Cir. 1986); Snell v. Suffolk County, 
611 F. Supp. 521, 528-30 (E.D.N.Y. 1985).



8

overtones, that was never imposed on male managers.9 
See, e.g., EEOC Dec. No. 71-2042, 3 FEP Cas. 1102, 1103 
(1971)(black but not white employees required to address 
white female supervisor as "ma’am"); Carroll v. Talman 
Federal Savings & Loan Ass’n, 604 F. 2d 1028 (7th Cir. 
1979)(female but not male bank employees required to wear 
uniforms).

(2) Facially Neutral Harassment on Account of Race
or Gender—

Supervisors and fellow employees seeking to abuse 
minorities or women have often chosen to use facially 
neutral methods, resorting to abusive conduct or derogatory 
remarks that could conceivably have been, but in fact were 
not, inflicted on men or non-minorities. Thus in Patterson 
the plaintiff alleged her supervisor glared at her, criticized 
her more than whites, and chastised only her, and never 
whites, in public. 491 U.S. at 212, 214. In the instant case 
Hardy times belittled petitioner with facially neutral remarks, 
not directed at male employees, such as "What the hell do 
you know." (Tr. 18).

(3) Race or Gender Specific Harassment—

In many of the reported lower court cases the 
substance of the abuse was something that by its very nature 
would harm only (or primarily) women or minorities. In 
Patterson, for example, the plaintiffs supervisor allegedly 
asserted to her that "blacks are known to work slower than 
whites by nature", and that whites could her job better than 
she could. 491 U.S. at 213. In the instant case Hardy told 
petitioner that a man was needed to do her job, and 
remarked "what do you know, you’re a woman."10 At the

9 The magistrate asserted that this occurred on only a single 
occasion. (Pet. App. A-8) This was clear error; petitioner testified 
that this was Hardy’s routine practice, and no witness disputed her 
assertion.(Tr. 19-20).

10 Tr. 17, 18, 78, 91; Pet. App. A-9, A-18.



9

1991 Tailhook convention several of the male officers wore 
T-shirts reading "HE-MAN WOMEN HATER’S CLUB" 
and "WOMEN ARE PROPERTY."11

(4) Sexual Harassment—

This Court’s decision in Meritor, like many of the 
lower court cases, dealt with disparate treatment in the form 
of "[u]nwelcome sexual advances, requests for sexual favors, 
and other verbal or physical conduct of a sexual nature." 477 
U.S. at 65, quoting 29 C.F.R. §1604.11(a). The touchstone 
of any sexual harassment claim is that the alleged sexual 
advances were "unwelcome." 477 U.S. at 98. Such 
advances, requests and conduct are by definition directed at 
employees, in virtually all reported cases women, because of 
their sex. The record in this case is replete with incidents of 
this type.

(5) Quid Pro Quo Sexual Demands—

In a number of cases supervisors have demanded 
sexual favors in return for a favorable employment action, 
such as a promotion, or on pain of an adverse employment 
action, such as dismissal. Most of these cases are a subset 
of discriminatory promotion and dismissal cases. If the 
woman rejects the demand and is denied the promotion12or 
fired13, she has been denied the promotion or fired on 
account of her gender; a man in the same situation would 
have been promoted or retained.

11 Department of Defense Inspector General, Tailhook 91 , pt. 2, 
p. X-3 (1993).

12 See, e.g., Henson v. City of Dundee, 682 F. 2d 897 (8th Cir. 
1982); Bundy v. Jackson, 841 F. 2d 934 (D.C.Cir. 1981).

13 See, e.g., Sparks v. Pilot Freight Carrier, Inc., 830 F. 2d 1554 
(11th Cir. 1987); Horn v. Duke Homes, Division of Windsor Mobile 
Homes, Inc., 755 F. 2d 599 (7th Cir. 1985).



10

B. The Legal Principles Applicable to Each

The experience of the lower courts reveals that 
several different types of harassment often arise in a single 
case. That is true in the instant case, which involves 
discrimination in employer-imposed terms of employment, 
facially neutral harassment on account of gender, gender 
specific harassment, and sexual harassment. The combined 
impact of multiple types of harassment may be relevant to 
determining liability14, and will ordinarily be important to 
ascertaining the appropriate remedy, such as the proper level 
of compensatory damages. Nonetheless, the legal principles 
applicable to each form of harassment differ to some degree, 
and must be assessed separately.

Meritor held that in a hostile environment case a 
plaintiff was required to establish that the harassment at 
issue was "sufficiently pervasive or severe" to alter the 
conditions of [the victim’s] employment." 477 U.S at 67. 
This requirement is applicable to a claim of facially neutral 
harassment on account of race or gender, race or gender 
specific harassment, or sexual harassment. It does not apply, 
however, to discrimination in employer imposed terms of 
employment; where an employer, for examples, selects an 
employee on the basis of race or sex for assignment to a 
demeaning or dangerous task, that assignment is a per se 
violation of Title VII, whether it lasts for a day or a year. 
The "pervasive or severe" requirement is also inapplicable to 
a quid pro quo case,15 if the victim refused the supervisor’s 
demand, and as a consequence was fired or denied a 
promotion. In that situation the dismissal or promotion 
would constitute unlawful discrimination on account of sex, 
since a similarly situated male would have been promoted or

14 Hicks v. Gates Rubber Co., 833 F. 2d 1406, 1416-17 (10th Cir. 
1987); Carter v. Duncan-Huggins, Ltd., 727 F. 2d 1225, 1236 (D.C.Cir 
1984).

15 The Sixth Circuit acknowledged this distinction in Rabidue 
805 F. 2d at 620.



11

retained.
Practical experience since Meritor has demonstrated 

the value of the two part "pervasive or severe" standard. In 
most harassment cases, whether an abuse is an isolated 
incident, or has become an ongoing condition of the job, 
turns on pervasiveness, the frequency with which it recurs. 
Where an employee can anticipate that an abuse is going to 
occur again on the job, the perpetration of such abuses can 
properly be described as a condition of the job.16 This is 
consistent with what would, as a practical matter, begin to 
affect the employment decisions of current or prospective 
employees. Both types of individuals would begin to avoid 
a given employer once it was foreseeable that its employees 
would be subject to harassment. If at that point the 
harassment could not be declared illegal and enjoined, the 
abuse would continue unchecked to steer minorities or 
women away from the employer. The EEOC Guidelines 
require an employer who has learned of harassing conduct 
to take "appropriate corrective action," 29 C.F.R. 
§1604.11(d), a requirement which imposes on the employer 
an obligation to act where recurrences of the harassment are 
foreseeable.17 That obligation would make no sense unless

16 Compare North v. Madison Area Ass’n for Retarded Citizens, 844 
F. 2d 401 (7th Cir. 1988)(two or three incidents in ten years not 
sufficient to constitute a condition of employment) with Carrero v, 
New York City Housing Authority, 890 F. 2d 569 (2d Cir. 
1989)(condition of job altered where half a dozen of unwanted sexual 
advances from the same supervisor created a situation in which victim 
was "required to be constantly on guard against having her supervisor 
fondle her knee, kiss her on the neck, or seek to kiss her on the 
lips.").

17 See EEOC Policy Guidance on Current Issues of Sexual 
Harassment, p. 30 (March 19, 1990)("The employer should make 
follow-up inquiries to ensure that harassment has not resumed . . . .");  
Ellison v. Brady, 924 F. 2d 872, 881 (9th Cir. 1991)(employer must 
take action "reasonably calculated to end the harassment"); Paroline 
v. Unisys Corp., 879 F. 2d 100, 107 (4th Cir. 1989) (where employer 
knew perpetrator had harassed other women, employer "should have



12

the pervasiveness requirement of Meritor could be satisfied 
by proof the sufficient harassment had occurred that 
additional future acts could be foreseen.

The second branch of the Meritor standard, providing 
that severity may also be sufficient to render harassment a 
condition of the plaintiffs employment, has also proved 
important. The EEOC has concluded that a single but 
severe incident may be sufficient to alter the conditions of 
employment, such as "the unwelcome, intentional touching 
of a charging party’s intimate body areas."18 The lower 
courts have found that a plaintiffs conditions of employment 
are altered by circumstances creating a legitimate fear of 
serious and irreparable injuiy, such as a threat of death or 
rape, even though the threatened conduct has not 
occurred.19 Continuous fear of severe injury can in such 
cases be as much a condition of the job as actual day to day 
abuse of a less extreme variety. Such fear would obviously 
shape employment decisions by current or prospective 
employees. There are a significant number of lower court 
cases involving threats or actual attacks of this severity.20

anticipated that the plaintiff too would become a victim of the male 
employee’s harassing conduct"); Lopez v. S.B. Thomas,Inc. 831 F. 2d 
1184,1186 (2d Cir. 1987)("when an employer knows or reasonably 
should know that co-workers are harassing an employee . . . the 
employer may not stand idly by").

18 EEOC, Policy Guidance on Current Issues of Sexual 
Harassment, p. 17 (March 19, 1990).

19 Vance v. Southern Bell Tel and Tel Co., 863 F.2d 1503,1510-11 
(11th Cir., 1989)(death); Ellison v. Brady, 924 F. 2d 872, 883 (9th Cir. 
1991)(rape).

20 Daniels v. Essex Group, Inc., 937 F. 2d 1264, 1266-67 (7th Cir. 
1991)(death threat, threat of assault, bullet fired into employee’s 
home); Andrews v. City of Philadelphia, 895 F. 2d 1469, 1474 (3d Cir. 
1990)(plaintiff burned by lime poured on her clothes); Paroline v. 
Unisys Corp„ 879 F. 2d 100, 105-06 (4th Cir. 1989)(assault and 
battery); Bohen v. City of East Chicago, Ind., 799 F. 2d 1180, 1183



13

In applying Meritor the courts must determine 
whether the alleged conduct was unfavorable to the 
employee, e.g. whether an employer-imposed condition was 
undesirable, whether remarks about a plaintiff were 
derogatory, and whether unwelcome conduct or remarks 
were sexual in nature. In practice the court have had no 
difficulty in making these determinations; in the actual 
reported cases the unfavorable or sexual nature of the 
incidents in question has almost invariably been so blatant 
that it was never contested.21 There is no dispute here, for 
example, that saying that only a man could do petitioner’s 
job was a gender specific denigration of female employees, 
or that suggestions that petitioner start "screwing around" 
with Hardy referred to sexual activity. Should such disputes 
actually arise, the finder of fact should experience little 
difficult in determining whether, for example, a series of 
remarks might fairly be understood as derogatory or sexual 
in nature.

II. Th e  S ixth  Circuit  Req uirem ent  of  P r o o f  of 
Serio us  P sychological Injury  is  In c o n sistent  
W ith Title VII and  Th is  Court’s D ec isio n  in  
Meritor Savings Bank v. Vinson

A. The Rationale of the Opinion in Rabidue Flatly Repudiates 
The Principles of Title VJI

The rule adopted in Rabidue and applied by the 
magistrate below, as we set out below, is clearly wrong. The 
reasoning of Rabidue is equally significant, because the rule

(7th Cir. 1986)(rape threat); Snell v. Suffolk County, 782 F. 2d 1094, 
1098 (2d Cir. 1986)(fear fellow police offices would not assist in an 
emergency).

21 One of the few such cases is Ellison v. Brady, 924 F. 2d 872, 
875 n. 5 (9th Cit. 1991), in which the employer argued in vain that a 
letter which contained "several references to sex" was "not of a sexual 
nature."



14

in question derives from a candid rejection of Congress’s 
decision to eliminate harassment and abuse in the 
workplace. The panel in Rabidue offered a spirited defense 
of harassment of women, particularly on the job, as a 
widespread, normal, and generally accepted practice, 
insisting it was impossible to stop and that Congress surely 
could not have meant to do so. This is, the panel 
suggested, just the way women are normally treated. The 
reasoning of this decision bears an uncanny resemblance to 
the cavalier attitude of a company official in Walker v. Ford 
Motor Co., 684 F. 2d 1355 (11th Cir 1982), who told a black 
employee that constant references to himself and other 
blacks as "niggers" was "just something a black man would 
have to deal with in the South." 684 F. 2d at 1359.

Rabidue argued, first, that women are demeaned in 
American society generally, and that comparable harassment 
on the job surely cannot be actionable:

[The actions] had a de minimis effect on the 
plaintiffs work environment when considered 
in the context of a society that condones and 
publicly features and commercially exploits 
open displays of written and pictorial erotica 
at the newsstands, at the cinema, and in other 
public places.

805 F. 2d at 622. On this view, whatever is said or depicted 
in, for example, Hustler magazine or hard core pornography 
could be said to, or insistently displayed before, any woman 
who chooses to work for a living.

This argument ignores the fact that a woman who 
may refuse to enter a pornographic bookstore or movie 
theater is required to be at her place of employment during 
business hours. Employees are the quintessential captive 
audience. Individuals are free to stay away from, or walk 
out of, a store or political rally because of the slightest 
difference in opinion or taste; but those same individuals are 
required by their employers, on pain of dismissal, to remain



15

on the job despite the most withering abuse. Probably 
nothing short of physical confinement or the threat of 
criminal prosecution could as effectively compel an 
individual’s continued presence as fear of dismissal; 
employees depend on their jobs to feed, clothe and house 
themselves and their families. So long as an employee is 
required by his or her employer to be at a particular plant 
or office, Title VII imposes on the employer an obligation to 
assure that the conditions at that site are not tainted by 
discriminatory harassment. By so doing Title VII merely 
accords to petitioner and other women while on the job the 
same ability to avoid unwelcome sexual remarks and displays 
that they possess when not at work.

Rabidue argued, second, that verbal and other abuse 
is widespread at the workplace, more or less normal there, 
and reflects societal mores, and that Title VII was not 
adopted to change such common and widespread workplace 
bigotry:

As Judge Newblatt aptly stated . . . "Indeed, 
it cannot seriously be disputed that in some 
work environments , humor and language are 
rough hewn and vulgar. Sexual jokes, sexual 
conversations and girlie magazines may 
abound. Title VII was not meant to—or can- 
change this. It must never be forgotten that 
Title VII is the federal mainstay in the 
struggle for equal employment opportunity 
for the female workers of America. But it is 
quite different to claim that Title VII was 
designed to bring about a magical 
transformation in the social mores of 
American workers."

805 F. 2d at 620-21. We urge, on the contrary, that 
Congress intended to bring about just such a transformation. 
In 1964 racial bigotry also "aboundjed]" in some, indeed all 
too many, "work environments"; Congress certainly



16

contemplated that the non-discriminatory terms and 
conditions of employment guaranteed by Title VII would 
bring to an end race-based abuse of minority workers by 
their coworkers and supervisors. Nothing in the language or 
legislative history of Title VII suggests that harassment of 
women was to treated any differently. Title VII does not 
require American workers to alter their social mores 
regarding race, sex, or any other matter; they remain free, as 
to employers, to adhere to whatever views they choose on 
matters of race, religion, or gender. What Title VII 
emphatically does require is that employees and supervisor 
who may adhere to such intolerant beliefs not act on them 
at the workplace in a manner harmful to their fellow 
workers.22

Rabidue urged, third, that women who go to work 
frequently know they are going to be sexually harassed, and 
voluntarily choose to take the jobs anyway. Thus Rabidue 
asserted that in deciding whether a given set of abuses is 
legal, a court should consider "the lexicon of obscenity that 
pervaded the environment of the workplace . . before the 
plaintiffs introduction into its environs, coupled with the 
reasonable expectation of the plaintiff upon voluntarily 
entering that environment." 805 F. 2d at 620 (Emphasis 
added). On this view Title VII is subject to an unstated 
loophole analogous to the tort doctrine of assumption of the 
risk; employees who should have known when they took a 
job that they might be discriminated cannot complain when 
discrimination in fact occurs. If Title VII indeed contained 
such an assumption, it would have been inapplicable to most 
black employees in the nation when it became effective in 
1965.

22 "[A]n employer . . . cannot change the personal beliefs of his 
employees; he can let it be known, however, that racial harassment 
will not be tolerated, and he can take all reasonable measures to 
enforce this policy." DeGrace v. Rumsfeld, 614 F. 2d 796, 805 (1st Cir. 
1980).



17

Assumption of the risk has proved a useful doctrine 
in allocating responsibility where individuals voluntarily 
choose a course of action with known dangers, such as the 
risk of being struck by a ball at a baseball game. But for 
women, as for men, working is not a ’Voluntary" optional 
pastime like going to baseball games. Women need to work 
for exactly the reason that men do, to feed, house and clothe 
themselves and their families. For women working is only 
as voluntary as eating is voluntary; without jobs most could 
not provide themselves and their families with a decent 
standard of living, and many could hardly survive.23 
Assumption of the risk as a defense for employers to injuries 
sustained by employees was decisively rejected by virtually 
every state in the union in the early twentieth century with 
the adoption of workmen’s compensation laws. Prosser On 
Torts, section 80.
B. The Substance of the Rabidue Rule Is Inconsistent With 

Title VII
As Meritor explained, disparate treatment on account 

of race, sex, etc. is discrimination, and thus illegal under 
Title VII, regardless of whether the harm it causes is 
economic or non-economic. The plain language of the law 
forbids "discrimination", not "discrimination if it happens to 
cause serious psychological injury". Where economic injury

23 In Bums v. McGregor Electronic Industries, Inc., 955 F. 2d 559 
(9th Cir 1992), the plaintiff was subject to constant hideous verbal 
abuse, a rape threat, and warning of dismissal if she did not engage 
in sex with her supervisor. One supervisor constantly touched the 
women employees, and on at least one occasion dropped his pants in 
front of several female workers. A  female coworker described the 
plant as the "last resort of anybody that needs a job". 955 F. 2d at 
562. The plaintiff quit on several occasions, reluctantly returning 
because "she needed work to support herself, her father, and her 
brother." 955 F. 2d at 561.

See also Phillips v. Smalley Maintenance Services, Inc., 711 F. 
2d 1524,1527(llth Cir. 1983)(supervisor insisted that plaintiff "engage 
in oral sex with him on penalty of losing her job, upon which he knew 
she and her family were significantly, financially dependent.")



18

is concerned, there surely is no such "serious injury" rule; an 
employee wrongfully denied $1 in wages on account of race, 
sex, religion or national origin would be entitled to sue for 
back pay under Title VII, and could obtain an injunction 
against such denials in the future, modest in amount though 
those denials might be. Meritor rejects any different rule 
merely because the injury is non-economic.

Rabidue holds that Title VII authorizes an employer 
to permit, condone or even enthusiastically sponsor sexual or 
racial harassment up until the point where it "affectfs] 
seriously the psychological well being of the plaintiff'. 805 
F. 2d at 619. The threshold of illegality under Rabidue is 
quite high; in the only Sixth Circuit decision holding this 
requirement satisfied, the plaintiff was repeatedly forced to 
seek medical help, and was twice hospitalized because of the 
psychological harm she had suffered.24 Short of such 
extraordinary injury, Rabidue creates what has elsewhere 
been described as a "free fire zone" for abuse of female and 
minority employees. Department of Defense Inspector 
General, Tailhook 91, pt. 2, p. X-l (1993). Surely Congress 
never intended to require victims of discrimination to endure 
such conditions until their injuries had reached some 
egregious levels. "Title VII’s protection of employees from 
sex discrimination comes into play long before the point 
where victims of sexual harassment require psychiatric 
assistance." Ellison v. Brady, 924 F. 2d 872,878 (9th Cir. 
1991)25.

Under Title VII as it existed prior to 1991, the 
Rabidue rule would yield results that Congress could not 
possibly have intended. Until 1991 a plaintiff sustaining only 
non-economic injuries as a result of racial or sexual

24 Yates v. Avco Corporation, 819 F. 2d 630, 632 (6th Cir. 1987).

25 "A female employee need not subject herself to an extended 
period of demeaning and degrading provocation before being entitled 
to seek the remedies provided by Title VII." Carrero v. New York City 
Housing Authority, 890 F. 2d 569, 578 (2d Cir. 1989).



19

harassment could not obtain any form of monetary relief 
under Title VII. Under that circumstance, Rabidue 
interpreted Title VII to require victims of such harassment 
to endure injury-causing harassment until it led to "serious 
psychological injury", even though there was no hope that 
that injury could ever be redressed. Even when the required 
level of serious injury had been reached, the plaintiff was 
authorized only to begin the process of invoking Title VII by 
filing an administrative charge; in most instances years would 
go by before the matter could reach court, a trial could be 
held, and injunctive relief obtained.

Rabidue is equally indefensible under Title VII as 
amended by the 1991 Civil Rights Act, which now authorizes 
awards of compensatory damages. Congress in 1991 
expressly authorized compensation for all damages, not just 
for damages amounting to serious psychological injury. 
Section 102 of the 1991 Civil Rights Act authorizes 
compensatory damages for "emotional pain, suffering . . . 
[and] mental anguish". 42 U.S.C. §1977A(b)(3). All such 
damages could be suffered even though a plaintiffs 
psychological well being had not been seriously injured. 
Moreover, Congress in 1991 was clearly concerned about the 
size of potential judgments against employers; it was for this 
reason that section 102 imposes a partial cap on the size of 
certain compensatory awards. Rather than permit a plaintiff 
to sue when her injuries and compensatory damage claim 
may still be modest, however, Rabidue has the perverse 
effect of requiring a plaintiff to postpone suing until both 
her injuries and damages are quite considerable. By the 
time proven harassment had "affected seriously the 
psychological well being" of a plaintiff, his or her injuries in 
monetary terms are likely to be quite large. Congress 
cannot have intended to require that a woman or minority 
who has sustained a $1000 injury postpone suit until his or 
her injuries have reached $100,000, and it is difficult to see 
why employers, except the defendant in the particular 
circumstances of this case, would want such a rule.



20

The Rabidue rule is also inconsistent with the 
principles applicable to constructive discharge claims. 
Serious psychological injury, unlike lost wages, is never fully 
undone by a monetary award. Emotional scars from such 
injuries are likely to last a lifetime; notwithstanding whatever 
psychologists and psychiatrists can accomplish, a minority or 
female employee whose psychological well being has been 
seriously harmed is unlikely to ever be the same again. 
Absent truly desperate financial circumstances, which of 
course are all too common, no woman or minority would 
choose to remain on a job until she or he had suffered 
irreparable psychological harm. Thus long before, under 
Rabidue, a woman could sue for sexual harassment, she 
would in all likelihood have resigned and brought a 
successful constructive discharge suit. See Bell v. Crackin 
Good Bakers, Inc., I l l  F. 2d 1497, 1500 (11th Cir 
1985)(sustaining constructive discharge claim where plaintiff 
had resigned to avoid "permanent severe physical and mental 
problems.")

III. T h e  M a g is t r a t e ’s E v a l u a t io n  o f  t h e
Circum stances  of Th is  Case  W as In c o n siste n t

W ith Title VII
The magistrate’s assessment of the largely undisputed 

facts in this case reflects a fundamental misunderstanding, 
rooted in Rabidue, of the requirements of Title VII. The 
magistrate correctly held that Hardy, the president and 
owner of Forklift, "demeans the female employees at his 
work place" (Pet. App. A-14), a constant practice that 
indisputably was a condition of petitioner’s job. The 
magistrate insisted, however, that this was insufficient to 
establish a violation of the law, reasoning that Title VII 
actually permits demeaning and discriminatory terms and 
conditions of employment so long as they are not so severe 
as to amount to a "hostile" or "abusive" environment. In 
order to implement this distinction, the magistrate fashioned 
a system for rating derogatory remarks from "merely 
annoying and insensitive" to "truly gross". (Pet. App. A-18,



21

A-19). The magistrate classified most of the incidents in this 
case as falling short of "offensive"; although acknowledging 
that petitioner was "genuinely offended" (Pet. App. A-19), 
the magistrate insisted that she was "more sensitive" than 
other female employees.(Pet. App. A-18).

This Court would dismiss out of hand such scholastic 
distinctions if they were made in a race discrimination case. 
The magistrate’s analysis bears a substantial resemblance to 
the reasoning of Plessy v. Ferguson, 163 U.S. 537 (1896), 
which insisted that racial segregation of railroad cars did not 
"stam[p] the colored race with a badge of inferiority", and 
that any such impression on the part of blacks existed only 
because "the colored race chooses to put that construction 
upon it." 163 U.S. at 551. The day is long past when this 
Court would entertain any suggestion that some forms of 
racial abuse are legal because "reasonable" blacks would not 
be offended. Undoubtedly there were many whites a 
generation ago who thought Rosa Parks "oversensitive" when 
she objected to sitting in the back of a Montgomery bus, or 
who believed Oliver Brown was "unreasonable" in asking 
that his daughter attend the white schools in Topeka. But 
the right to equal treatment accorded blacks by the 
Constitution and laws of the United States does not ebb and 
flow with popular or judicial notions of what forms of 
discrimination a "reasonable" black would find tolerable or 
"merely annoying".

Faced with a pattern of undisputed "denigrating" 
remarks (Pet. App. A-18), the magistrate classified most as 
"merely" "annoying", "insensitive", "inane" and "more 
objectionable" (Pet. App. A-18), none of which, he held, 
were sufficient, although pervading the workplace, to violate 
Title VII. It is inconceivable that the magistrate would have 
used, or that any court would have upheld, such a rating 
system had the remarks been racial in nature. Title VII 
surely does not authorize federal judges to draw such 
distinctions among epithets such as "nigger", "nigra", "spook", 
"coon", "jungle bunny" and "gorillas in the mist". A lower 
court decision dismissing some of these epithets as "merely



22

annoying and insensitive" would be reversed out of hand. 
Title VII does not permit federal judges to make similar 
distinctions regarding unwelcome sexual comments or 
conduct.

The lower court in this and other cases attempted to 
determine how much a "reasonable" woman would be 
offended by certain derogatory or unwelcome sexual remarks 
that were part of the conditions of her job. Those courts, 
not surprisingly, have arrived at complex and conflicting 
answers. We maintain that these decisions are asking the 
wrong question. The relevant inquiry is what forms of 
derogatory and unwelcome sexual remarks or conduct Title 
VII requires any woman to endure as a condition of her job. 
The answer is simple—none.

Neither this case, nor the numerous reported cases 
which we have reviewed, involve any genuine 
misunderstanding even by the perpetrator regarding what 
actions or derogatory remarks are likely to give offense26. 
The distinctions drawn by perpetrators concern not the 
substance of their actions, but the status and powerlessness 
of their victims. In dealing with women who exercise 
authority or control over their lives, men otherwise given to 
making abusive remarks act quite differently. In a context in 
which he was unprotected by his status as employer, Hardy 
would have had no difficulty recognizing that his comments 
were more than "merely annoying." It is unimaginable that 
Hardy, in applying for a business loan, would ever ask a 
female bank officer to take coins out of his pocket (Pet. 
App. A-9, A-18) or comment that her nipples were visible 
when the air conditioning was on. (Tr. 76) The churlish 
louts who shout obscenities at women on city streets often 
understand full well the offensiveness of their conduct; they 
assuredly do not use similar language when speaking with 
female personnel officials in the course of job interviews.

26 Hardy acknowledged that he would not stand for it if someone 
talked to his wife or daughter the way he had spoken to petitioner. 
Tr.73; see tr. 47, 117.



23

The magistrate dismissed as peccadilloes Hardy’s 
derogatory remarks, such as his repeated statements that 
women were not competent to do men’s work. It is unlikely 
that either the magistrate or Hardy would take the same 
remarks as lightly if uttered about racial minorities. To put 
the matter bluntly, neither Hardy nor the magistrate would 
walk into a bar in Northeast Washington, D.C., and 
announce to the black patrons that only whites were 
competent to be sales managers. To the extent that the 
magistrate may actually have believed that women would 
find Hardy’s actions "merely annoying", he was palpably 
mistaken. If Hardy were to approach a female patron at a 
Gold’s Gym, and ask her, as he asked his employees, to 
bend over so that he could better observe her breasts (Tr.23- 
24), that "merely insensitive" remark might well place Hardy 
in need of immediate medical attention.

The use of this sort of "reasonable woman" standard 
has led defense lawyers to argue that any woman 
complaining about their client’s conduct must be 
unreasonable, oversensitive, or worse. Defendants have 
sought to challenge plaintiffs’ objections to sexual or gender- 
based harassment by seeking to discover information about 
their psychological or sexual histories27. The notion that 
objections to certain forms of discriminatory conditions and 
abuses may be "unreasonable" leads inevitably to arguments, 
reminiscent of the old Soviet system of remanding dissidents 
to mental hospitals, that women who object to unwelcome 
sexual acts or remarks must be unstable.

The magistrate expressed bafflement that petitioner 
had not chosen to rebuke her employer about his obnoxious 
actions. (Pet. App. A-15). That observation reflects the 
happy innocence of a federal official who serves for an eight 
year term under judges who serve for life. Ordinary 
American workers, who hold their jobs at the pleasure of 
their supervisors, do not ordinarily make a practice of 
rebuking their superiors for engaging in illegal and offensive

27 Priest v. Rotary, 98 F.R.D. 755 (N.D.Cal. 1983).



24

conduct. Women and minorities often use the same word to 
describe individuals who confronted their bosses in this 
manner-unemployed.

It is extraordinary that a federal magistrate, a federal 
district court judge, and three circuit court judges could all 
have reviewed the facts in this case and have concluded that 
Title VII permits the abuses which occurred. That result 
reflects a profound misunderstanding of the commands of 
federal law. The decisions below proceed as though Title 
VII guaranteed only "employment opportunity sufficiently 
equal to satisfy a reasonable woman." The actual terms of 
Title VII call for "Equal Employment Opportunity]", period. 
42 U.S.C. ch.21, subch.vi. We urge this Court to so hold.

C onclusio n

For the above reasons the decision of the court of 
appeals should be reversed.

Respectfully submitted,

E l a in e  R. Jo n e s  
* Eric. Sc h n a p p e r  

NAACP L e g a l  D e f e n s e  a n d  
E d u c a t io n a l  F u n d , In c .

99 Hudson Street 
New York, New York 10013 
(212) 219-1900 
Counsel for Amici 
* Counsel of Record



Appen d ices

Appendix A —
Discrimination in Employer Mandated Terms of 
Employment

Appendix B —
Facially Neutral Harassment On Account of Race or 
Gender

Appendix C —
Race or Gender Specific Harassment

Appendix D —
Sexual Harassment

Appendix E —
Quid Pro Quo Sexual Demands



Appendix A
Discrimination in Employer-Mandated 

Terms of Employment

Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 
1990) (plaintiff denied desirable assignment 
given to comparable male employees)

Carrero v. New York City Housing Authority, 890 F.2d 569 
(2d Cir. 1989) (plaintiff denied desired assignment)

Malhotra v. Cotter & Co., 885 F.2d 1305 (7th Cir. 1989) 
(plaintiff given excessive work)

Risinger v. Ohio Bureau of Workers’ Compensation, 883 
F.2d 475 (6th Cir. 1989) (unequal treatment 
regarding visitors, phone usage, and assignments)

EEOC v. Hacienda Hotel, 881 F.2d 1504 (9th Cir. 1989) 
(discrimination regarding days off)

Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir. 
1988) (unequal rest and dwelling areas for male and 
female residents; female residents expected to cook 
for other doctors; female residents denied 
assignments given to male residents)

Vance v. Southern Bell Tel. and Tel. Co., 863 F.2d 1503 
(11th Cir. 1989) (plaintiff denied needed training)

Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900 
(11th Cir. 1988) (discrimination in job assignments, 
hours, and vacation times)

Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987) 
(plaintiff directed to jump off five foot loading dock; 
not permitted to sit down; denied lunch break)



2a

Nazaire v. Trans World Airlines, Inc., 807 F.2d 1372 (7th 
Cir. 1986) (plaintiff assigned to do the work of two 
men; denied adequate training)

Rabidue v. Osceola Refining Co., 805 F.2d 611 (6th Cir. 
1988) (plaintiff denied entertainment privileges; 
barred from firm golf matches; not permitted, as 
were her predecessors, to take customers to lunch; 
required, despite management position, to sit with 
clerical workers at meeting)

Snell v. Suffolk County, 782 F.2d 1094 (2d Cir. 1986) 
(plaintiffs barred from more desirable positions; 
barred from use of white bathroom)

Carroll v. Talman Federal Savings and Loan Ass’n, 604 F.2d 
1028 (7th Cir. 1979) (female but not male bank 
employees required to wear uniforms)

Harrington v. Vandalia-Butler Board of Education, 585 F.2d 
192 (6th Cir. 1978) (male but not female physical 
education instructors provided with offices and with 
showers and lockers not shared with students)

Gray v. Greyhound Lines, East, 545 F.2d 169 (D.C.Cir. 
1976) (assignment of bus routes)

Rodgers v. EEOC, 454 F.2d 234 (5th Cir. 1971) (hispanic 
employee required to attend patients segregated on 
the basis of national origin)



3a

Appendix B
Facially Neutral Harassment On 

Account of Race or Gender

Bums v. McGregor Electronic Industries, Inc., 955 F.2d 559 
(8th Cir. 1992) (co-worker called plaintiff vulgar 
names, deliberately placed need materials where she 
could not reach them)

Daniels v. Essex Group, Inc., 937 F.2d 1264 (7th Cir. 1991) 
(co-worker threatened to "whip" or "beat" plaintiff 
and injure his four-year-old son; bullet fired into 
plaintiffs home)

Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 
1990) (plaintiffs case files stolen and destroyed; 
fellow workers refused to provide plaintiff routine 
assistance; plaintiffs car repeatedly vandalized; 
anonymous harassing phone calls; plaintiff burned by 
lime placed on her clothes)

Carrero v. New York City Housing Authority, 890 F.2d 569 
(2d Cir. 1989) (spumed supervisor referred to 
plaintiff as a "scarecrow"; threatened to fail plaintiff 
on her probationary report; criticized plaintiff 
publicly)

Brooms v. Regal Tube Co., 881 F.2d 412 (7th Cir. 1989) 
(threat by supervisor to kill plaintiff)

Wheeler v. Southland Corp., 875 F.2d 1246 (6th Cir. 1989) 
(supervisor critical of plaintiffs job performance)

Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir. 
1988) (female residents told they were to "lick the 
floor" if ordered to do so)



4a

Vance v. Southern Bell Tel. and Tel. Co., 863 F.2d 1503 
(11th Cir. 1989) (plaintiffs work sabotaged; noose 
repeatedly tied over her desk)

Davis v. Monsanto Chemical Co., 858 F.2d 345 (6th Cir. 
1988) (plaintiffs time card altered)

Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900 
(11th Cir. 1988) (ridicule of plaintiffs appearance; 
interference with plaintiffs sales efforts)

Hall v. Gus Construction Co., Inc., 842 F.2d 1010 (8th Cir. 
1988) (co-workers urinated in plaintiffs water bottle 
and gas tank; refused to fix carbon monoxide leak in 
her company truck)

Swentek v. USAir, Inc., 830 F.2d 552 (4th Cir. 1987) 
(disparaging remarks about plaintiffs age and weight; 
non~sexual prank in presence of federal officials)

Domhecker v. Malibu Grand Prix Corp., 828 F,2d 307 (5th 
Cir. 1987) (co-worker choked plaintiff)

Nazaire v. Trans World Airlines, Inc., 807 F.2d 1372 (7th 
Cir. 1986) (plaintiff slapped by co-worker)

Hunter v. Allis-Chalmers Corp., Engine Div., 797 F.2d 1417 
(7th Cir. 1986) (co-workers sabotaged and hid 
plaintiffs tools; sabotaged his work; hang-man’s 
noose)

Hamilton v. Rodgers, 791 F.2d 439 (5th Cir. 1986) (nasty 
pranks)

Snell v. Suffolk County, 782 F.2d 1094 (2d Cir. 1986) 
(plaintiffs car vandalized; harassing phone calls)



5a

Bell v. Crackin Good Bakers, Inc., 777 F.2d 1497 (11th Cir. 
1985) (supervisor yelled at plaintiff; talked to her as 
if she were two year old and two inches high)

McKinney v. Dole, 765 F.2d 1129 (D.C. Cir. 1985) 
(supervisor grabbed and twisted plaintiffs arm, 
causing serious physical injury)

Taylor v. Jones, 653 F.2d 1193 (8th Cir. 1981) (physical 
threats)

DeGrace v. Rumsfield, 614 F.2d 796 (1st Cir. 1979) 
(firefighting equipment sabotaged; threatening notes; 
"silent treatment" by co-workers)



6a

Appendix C
Race or Gender Specific Harassment

Daniels v. Essex Group, Inc., 937 F.2d 1264 (7th Cir. 1991) 
(co-workers told "nigger jokes"; nicknamed plaintiff 
"Buckwheat"; teased plaintiff when he conversed with 
white women; hung black dummy from noose; wrote 
"KKK" and "All niggers must die" on bathroom walls; 
wrote "hi Bob KKK" on building; called plaintiff 
"nigger" and "dumb nigger")

Andrews v. City of Philadelphia, 895 F.2d 1475 (3d Cir. 
1990) (supervisor objected, "Why don’t you stay in 
one [office] like a man")

EEOC v. Beverage Canners, Inc., 897 F.2d 1067 (11th Cir. 
1990) (supervisors made racially derogatory remarks 
and used epithets such as "niggers" and "swahilis"; 
asserted "blacks were meant to be slaves" and were of 
lower intelligence)

Wyerick v. Bayou Steel Corp., 887 F.2d 1271 (5th Cir. 1989) 
(plaintiff repeatedly referred to as a "Fucking bitch" 
on company radio)

Risinger v. Ohio Bureau of Workers’ Compensation, 883 
F.2d 475 (6th Cir. 1989) (racial slurs by eight 
supervisors or co-workers, such as "chink", "tight eye" 
and "damned foreigner")

EEOC v. Hacienda Hotel, 881 F.2d 1504 (9th Cir. 1989) 
(supervisor made numerous crude and disparaging 
remarks about pregnancy; stated he did not like 
"stupid women who have kids"; referred to plaintiffs 
as "dog" "whore" and "slut")



7a

Brooms v. Regal Tube Co., 881 F.2d 412 (7th Cir. 1989) 
(numerous explicit racial remarks by supervisor)

Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir. 
1988) (repeated remarks to female surgery residents 
that women were not competent to be surgeons)

Davis v. Monsanto Chemical Co., 858 F.2d 345 (6th Cir. 
1988) (racial slurs)

Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900 
(11th Cir. 1988) (plaintiff called "bitch" and "whore")

North v. Madison Area Ass’n for Retarded Citizens, 844 
F.2d 401 (7th Cir. 1988) (racial slurs)

Hall v. Gus Construction Co., Inc., 842 F.2d 1010 (8th Cir. 
1988) ("blond bitch" written on outside of plaintiffs 
car; plaintiffs referred to repeatedly as "Fucking Flag 
girls")

Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987) 
("niggers"; "coons"; "lazy niggers and Mexicans")

Nazaire v. Trans World Airlines, Inc., 807 F.2d 1372 (7th 
Cir. 1986) ("monkey")

Rabidue v. Osceola Refining Co., 805 F.2d 611 (6th Cir. 
1986) (supervisor stated regarding plaintiffs position, 
"we really need a man in that job"; co-worker 
routinely used anti-female obscenities)

Hunter v. Alls-Chalmers Corp., Engine Div., 797 F.2d 1417 
(7th Cir. 1988) (bulletin board graffiti such as "the 
KKK is not dead, nigger"; and "open season on 
coons"; racially derogatory notes such as "save this 
mess for the nigger")



8a

Hamilton v. Rodgers, 791 F.2d 439 (5th Cir. 1986) (racial 
slurs)

Snell v. Suffolk County, 782 F.2d 1094 (2d Cir, 1986) 
("nigger", "coon", "spic", "black bitch"; numerous 
racially derogatory literature and cartoons)

Erebia v. Chrysler Plastic Products Corp., 772 F.2d 1250 (6th 
Cir. 1985) ("wetback"; "tomato picker"; plaintiff told 
to go back to Mexico so that a white person could 
have his job; "hot headed Mexican")

Craik v. Minnesota State University Board, 731 F.2d 465 
(8th Cir. 1984) (male faculty members objected to 
woman teaching statistics; student told women should 
just be para-professionals, and did not need graduate 
degrees; "we’ll be stuck with a woman")

Gilbert v. City of Little Rock, 722 F.2d 1390 (8th Cir. 1983) 
(racial remarks and derogatory epithets; racial 
oriented graffiti; racial cartoon on police 
headquarters bulletin board)

Vaughn v. Pool Offshore Co., 683 F.2d 922 (5th Cir. 1982) 
("nigger"; "coon"; "blackboy"; "That’s just like a 
nigger"; "KKK Headquarters" written on facade of 
tool shed)

Taylor v. Jones, 653 F.2d 1193 (8th Cir. 1980) (numerous 
racial slurs, epithets and jokes; "niggers"; "spooks"; 
"uppity nigger"; "boy"; "Let’s go finish the niggers"; 
announced KKK member hung hangman’s noose; 
joke ending with the punch line, "Oh, don’t worry 
about it, we’re just barbecuing a few niggers")

DeGrace v. Rumsfield, 614 F.2d 796 (1st Cir. 1980) (series 
of threatening notes, such as "hey boy get your Black 
ass out Before you don’t have one")



9a

Friend v. Leidinger, 588 F.2d 61 (4th Cir. 1978) (epithets 
such as "niggers", "nigras", and "spear chuckers"; 
black section of city referred to as the "Congo"; 
statements that black firefighters are not competent; 
hog trough set in front of black firefighter at dinner)

Cariddi v. Kansas City Chiefs Football Club, Inc., 568 F.2d 
87 (8th Cir. 1977) ("dago")



10a

Appendix D
Sexual Harassment

Bums v. McGregor Electronic Industries, Inc., 955 F.2d 559 
(8th Cir. 1992) (supervisor remarked "have you been 
playing with yourself'; discussed sex; asked plaintiff 
to watch pornographic movies; made lewd gestures, 
such as imitating masturbation; asked for dates at 
least weekly; proposed oral sex so plaintiff would "be 
able to perform [her] work better"; proposed plaintiff 
pose nude for him in return for overtime pay; co­
worker called plaintiff obscene names)

Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991) (bizarre 
messages from co-worker referring to non-existent 
romantic relationship)

Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 
1990) (plaintiffs called obscene names; display of 
pornographic pictures in locker room shared by male 
and female officers; supervisor breathed heavily down 
plaintiffs neck; pornographic pictures placed on 
office walls and in plaintiffs desk; sexual devices 
placed in plaintiffs desk; anonymous obscene phone 
calls)

Carrero v. New York City Housing Authority, 890 F.2d 569 
(2d Cir. 1989) (co-worker dropped pants in front of 
plaintiff; supervisor repeatedly kissed plaintiffs neck, 
stroked her arm and knee)

Wyerick v. Bayou Steel Corp., 887 F.2d 1271 (5th Cir. 1989) 
(repeated references to plaintiffs breasts; supervisor 
stated he "had gotten a ’hard-on’ watching her; 
obscene jokes on company radio)



11a

EEOC v. Hacienda Hotel, 881 F.2d 1504 (8th Cir. 1989) 
(supervisor comments about plaintiffs "ass; 
reference to oral sex; suggestion of sodomy; offer of 
money if plaintiff would "give him [her] body")

Brooms v. Regal Tube Co., 881 F.2d 412 (7th Cir. 1989) 
(numerous explicit sexual remarks by supervisor; 
supervisor showed plaintiff pornographic photograph 
of interracial sodomy, commenting plaintiff was hired 
for that purpose; supervisor showed plaintiff racist 
pornographic picture involving bestiality, threatening 
that was how plaintiff "was going to end up")

Paroline v. Unysis Corp., 879 F.2d 100 (4th Cir. 1989) 
(numerous sexual comments and unwanted touching 
of female employees by supervisor and other men; 
supervisor repeatedly kissed plaintiff over her 
objections)

Wheeler v. Southland Corp., 875 F.2d 1246 (6th Cir. 1946) 
(supervisor repeatedly leaned against plaintiff, 
touched her hips, called her "honey" or "baby"; asked 
why she did not hire women with big breasts)

Staton v. Maries County, 868 F.2d 996 (8th Cir. 1989) 
(numerous sexual advances; rape)

Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311 (11th 
Cir. 1989) (numerous sexual jokes; requests for 
sexual favors; proposal that plaintiffs visit supervisor 
on his couch; "suggestive" comments on plaintiffs’ 
attire)

Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir. 
1988) (explicit discussion of desire to have sex; 
Playboy centerfolds and sexually explicit drawing of 
plaintiff posted in meeting room; sexual nicknames 
for women residents; explicit remarks about bodies of



12a

plaintiff and other women; bragging about sexual 
exploits)

Bennett v. Corron & Black Corp., 845 F.2d 104 (5th Cir. 
1988) (cartoons posted in public men’s room 
depicting plaintiff, and bearing her name, engaged in 
crude and deviant sexual activity)

Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900 
(11th Cir. 1988) ("we’re going to take your clothes off 
to see if you are real")

Hall v. Gus Construction Co., Inc., 842 F.2d 1010 (8th Cir. 
1986) (plaintiffs repeatedly asked by co-workers if 
they "wanted to fuck" or engage in oral sex; co­
workers grabbed breasts or rubbed thighs of 
plaintiffs; co-workers mooned or exposed themselves 
to plaintiffs; flashed at plaintiffs obscene 
photographs)

Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987) 
(supervisor grabbed plaintiffs thigh; supervisor 
touched plaintiffs buttocks, stating "I’m going to get 
you yet"; supervisor grabbed plaintiffs breasts, stating 
"I got you")

Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554 (11th 
Cir. 1987) (facility manager repeatedly touched 
plaintiffs shoulders and hair; inquired if she could 
become pregnant; made remark described by district 
court as "too sexually explicit" to repeat)

Swentek v. USAir, Inc., 830 F.2d 552 (4th Cir. 1987) (co­
worker allegedly grabbed plaintiffs genitals; 
repeatedly made sexually explicit and other obscene 
remarks to her; exposed himself to her; responded to 
plaintiffs objections by warning "I haven’t even 
started on you yet")



13a

Domhecker v. Malibu Grand Prix Corp., 828 F.2d 307 (5th 
Cir. 1987) (co-worker touched plaintiffs hips and 
breasts; dropped his pants; stated "Let’s get naked 
and go to my room")

Yates v. Avco Corporation, 819 F.2d 630 (6th Cir. 1987) 
(supervisor repeatedly proposed sexual relations, 
made sexually suggestive comments, lewd references 
to plaintiffs body, and lewd jokes; asserted he was 
putting plaintiff "on his mistress list"; asked plaintiff 
into his office so he could watch her walk out and 
"make groaning sounds")

Highlander v. K.F.C. National Management Co., 805 F.2d 
644 (6th Cir. 1988) (supervisor touched plaintiffs legs 
and buttocks)

Rabidue v. Osceola Refining Co., 805 F.2d 611 (6th Cir.
1985) (fellow employee remarked of plaintiff, "All 
that bitch needs is a good lay")

Bohen v. City of East Chicago, Ind., 799 F,2d 1150 (7th Cir.
1986) (supervisor grabbed plaintiffs crotch; 
repeatedly discussed his sexual tastes and 
expectations of her, rubbed his pelvis against her 
buttocks; co-workers directed obscene comments at 
plaintiff; another supervisor informed plaintiff that 
she should be forcibly raped)

Scott v. Sears, Roebuck & Co., 798 F.2d 210 (7th Cir. 1986) 
(co-workers slapped plaintiffs buttocks; commented 
she must "moan and groan" while having sex; 
supervisor repeatedly suggested he give plaintiff 
rubdown; responded to requests for assistance, "What 
will I get for it?")



14a

Jones v. Flagship International, 793 F.2d 714 (5th Cir. 1988) 
(supervisor proposed to take plaintiff to a hotel 
because she needed the "comfort of a man"; 
numerous other advances; corporate vice-president 
rebuked plaintiff when she expressed distaste of 
female employees at use of figures of bare-breasted 
mermaids as table decorations)

McKinney v. Dole, 765 F.2d 1129 (D.C.Cir. 1985) 
(supervisor asked for sexual favors, rubbed himself 
against her, exposed himself)

Horn v. Duke Homes, Div. of Windsor Mobile Homes, 755 
F„2d 599 (7th Cir. 1985) (supervisor made repeated 
sexual advances, made lewd comments and obscene 
gestures, brushed against breasts of female workers)

Barrett v. Omaha National Bank, 726 F.2d 424 (8th Cir. 
1984) (supervisor talked about sexual activity; 
touched plaintiff in an offensive manner)

Phillips v. Smalley Maintenance Services, Inc., 711 F.2d 1524 
(11th Cir. 1983) (supervisor repeatedly demanded 
sexual relations, discussed particular types of sexual 
activities)

Katz v. Dove, 709 F.2d 251 (4th Cir. 1983) ("extremely
vulgar and offensive sexually explicit epithets"

Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982) 
(chief of police subjected female subordinates to 
repeated requests for sexual relations, vulgar 
comments, and sexual inquiries)

Bundy v. Jackson, 641 F.2d 934 (D.C. Cir. 1981) (supervisors 
repeatedly sought sexual relationships; asked about 
sexual proclivities; "any man in his right mind would 
want to rape you")



15a

Appendix E
Quid Pro Quo Sexual Demands

Bums v. McGregor Electronic Industries, Inc., 955 F.2d 559 
(8th Cir. 1992) (supervisor whose advances had been 
rejected warned plaintiff, "You must not need your 
job very bad"; supervisor warned plaintiff he would 
let other employees force her dismissal "If you don’t 
go out with me")

EEOC v. Hacienda Hotel, 881 F.2d 1504 (8th Cir. 1989) 
(threat of dismissal if sexual advances rejected; 
promise of immunity from dismissal if plaintiff would 
have sex with him)

Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir. 
1988) (female residents warned to obtain protection 
of senior residents by providing sexual favors)

Jordan v. Clark, 847 F.2d 1368 (8th Cir. 1988) (supervisor 
suggested plaintiff sleep with him in order to keep 
her job and get a promotion)

Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900 
(11th Cir. 1988) (plaintiff warned co-workers would 
obstruct her sales efforts if she did not go out with 
them)

Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554 (11th 
Cir. 1987) (facility manager whose sexual advances 
were not accepted threatened "your fate is in my 
hands" and "revenge is the name of the game")

Highlander v. K.F.C. National Management Co., 805 F.2d 
644 (6th Cir. 1986) (supervisor told plaintiff if she 
was interested in becoming a manager "there is a 
motel across the street")



16a

Horn v. Duke Homes, Div. of Windsor Mobile Homes, 755 
F.2d 599 (7th Cir. 1985) (supervisor told plaintiff it 
would be "easy" for her at office if she went out with 
him; supervisor promised raise if female employee 
would "cooperate" with him)

Lucas v. Brown & Root, Inc., 736 F.2d 1202 (8th Cir. 1984) 
(plaintiff fired for refusing to have sexual relations 
with her foreman)

Craig v. Y & Y Snacks, Inc., 721 F.2d 77 (3d Cir. 1983) 
(plaintiff fired for refusing to have sexual relations 
with supervisor)

Phillips v. Smalley Maintenance Services, 711 F.2d 1524 
(11th Cir. 1983) (plaintiff fired for refusing to have 
sexual relations with supervisor)

Miller v. Bank of America, 600 F.2d 211 (9th Cir. 1979) 
(plaintiff fired for refusing to have sexual relations 
with supervisor)

Tomkins v. Public Serv. Elec. & Gas Co., 568 F.2d 1044 (3rd 
Cir. 1977)(plaintiff warned by male supervisor that 
she would be fired unless she engaged in sexual 
relations)