Ocheltree v. Scollon Productions ( 2002 )

Rehearing en banc granted by order
filed 12/16/02; opinion filed 10/10/02
is vacated
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
4444444444444444444444444444444444444444444444447
LISA L. OCHELTREE,
Plaintiff-Appellee,
v. No. 01-1648
SCOLLON PRODUCTIONS,
INCORPORATED,
Defendant-Appellant.
4444444444444444444444444444444444444444444444448
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Matthew J. Perry, Senior District Judge.
(CA-96-1215)
Argued: April 2, 2002
Decided: October 10, 2002
Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.
____________________________________________________________
Reversed and remanded with instructions by published opinion. Judge
Williams wrote the opinion, in which Judge Niemeyer joined. Judge
Michael wrote an opinion dissenting in part and concurring in the
judgment in part.
____________________________________________________________
COUNSEL
ARGUED: Charles Franklin Thompson, Jr., TALLEY, MALONE,
THOMPSON & GREGORY, Columbia, South Carolina, for Appel-
lant. William Elvin Hopkins, Jr., MCCUTCHEN, BLANTON,
RHODES & JOHNSON, L.L.P., Columbia, South Carolina, for
Appellee. ON BRIEF: Michael D. Malone, TALLEY, MALONE,
THOMPSON & GREGORY, Columbia, South Carolina, for Appel-
lant.
____________________________________________________________
OPINION
WILLIAMS, Circuit Judge:
Lisa L. Ocheltree filed this action against her employer, Scollon
Productions, Incorporated (Scollon Productions), alleging sexual
harassment under Title VII of the Civil Rights Act of 1964, 42
U.S.C.A. § 2000e (West 1994 & Supp. 2001). Following a jury trial,
Ocheltree was awarded a substantial amount in compensatory and
punitive damages. Scollon Productions appeals the district court's
denial of its motion for judgment as a matter of law. Because we
agree that "there is no legally sufficient evidentiary basis" for the
jury's verdict, Fed. R. Civ. P. 50(a)(1), we reverse and remand with
instructions for the district court to enter judgment in favor of Scollon
Productions.
I.
A.
Scollon Productions is in the business of creating costumes for var-
ious characters and mascots, such as the South Carolina Gamecock mas-
cot.1 Bill Scollon (Scollon) began the company 31 years ago and is
the President, and Ellery Locklear is the Vice-President. The com-
pany currently employs approximately 50 people and is operated from
a plant that is located in White Rock, South Carolina. Ocheltree was
employed in the production shop of the plant from February 1994
until her discharge in August 1995.
Ocheltree testified to numerous incidents of offensive behavior
____________________________________________________________
1
As an appeal from the denial of judgment as a matter of law, we view
the facts and any inferences in the light most favorable to Ocheltree, the
non-moving party.
2
during her employment at Scollon Productions. According to
Ocheltree, some of the primarily male staff engaged in open conver-
sations about sex, made comments about the sexual habits of others
on the staff, used foul, vulgar, and profane language, and told
sexually-oriented jokes. Ocheltree also testified about specific inci-
dents that occurred during her employment, including an incident
when she witnessed employees pretending to perform oral sex and
other sexual acts on a mannequin, another incident when employees
showed Ocheltree a picture of pierced male genitalia and asked her
what she thought about it, and finally, an incident when a co-worker
sang her a song in which the lyrics were "come to me, oh baby, come
to me, your breath smells like cum to me." (J.A. at 114-15.) Accord-
ing to Ocheltree's testimony, the shop supervisor, Harold Hirsch,
showed a photograph of a nude woman around the shop and engaged
in several sexually explicit conversations with Ocheltree's male
coworkers.
Brian Hodge, a former employee of Scollon Productions, corrobo-
rated portions of Ocheltree's testimony, stating that there was a good
deal of "vulgar language and vulgar attitude throughout the shop," and
that this type of conduct happened "every day." (J.A. at 199-200,
204.) He also testified to overhearing employees discuss sexual acts
and witnessed employees simulate sexually explicit acts on manne-
quins. Hodge stated that Hirsch was often present during these discus-
sions and conduct, had participated in some of the discussions, and
had once made a sexually explicit comment. Hodge testified that he
recalled a safety meeting attended by Hirsch wherein Ocheltree let it
be known that she was offended by the conduct and that she wanted
the language and the conduct to stop immediately. Hodge testified
that he "speculated" that the men engaged in some of the behavior to
"bother[ ]" Ocheltree, and that the behavior got worse after Ocheltree
complained. (J.A. at 202-03.)
According to Ocheltree, she attempted to speak to Scollon and
Locklear about the work environment on different occasions, but she
was never given the opportunity to meet with either. On at least one
occasion, Scollon told her that he did not have time to meet with her
and instructed her to speak to Locklear. On another occasion, when
Locklear was on the telephone, Ocheltree wrote him a note stating
that she needed to speak with him, but she did not indicate what she
3
needed to speak with him about. Locklear testified that after he con-
cluded his conversation, he attempted to speak to Ocheltree about the
note, but he could not find her because she was not at her work sta-
tion. He made no further attempts to follow up with her; nor did
Ocheltree make any further attempts to speak with Locklear or Scol-
lon. In 1995, after approximately 18 months with Scollon Produc-
tions, Ocheltree was discharged for excessive absenteeism, excessive
use of the telephone during working hours, and because her husband
had threatened physical violence against Locklear.
B.
On April 25, 1996, Ocheltree filed a complaint against Scollon Pro-
ductions in the United States District Court of South Carolina, alleg-
ing sexual harassment and violations of South Carolina state law.
Following a report and recommendation by a magistrate judge, the
district court granted Scollon Productions's motion for summary
judgment on all claims. In his report and recommendation, the magis-
trate judge found that there was no basis for imposing liability on
Scollon Productions because neither Scollon nor Locklear, who were
the only two members of the corporation active in day-to-day man-
agement, were aware of or should have known of the offending activ-
ity. The district court concluded that Ocheltree failed to object to the
finding that neither Scollon nor Locklear knew of the offending activ-
ity, adopted the magistrate judge's recommendation, and granted
summary judgment to Scollon Productions. Ocheltree filed a pro se
appeal with this court.
Following briefing on the appeal, the Supreme Court issued its
opinions in Burlington Indus. v. Ellerth, 524 U.S. 742 (1998), and
Faragher v. City of Boca Raton, 524 U.S. 775 (1998), which held that
an employer is vicariously liable for a hostile work environment cre-
ated by a supervisor, subject to an affirmative defense that allows the
employer to avoid strict liability for one employee's sexual harass-
ment of another.2 Faragher, 524 U.S. at 808; Ellerth, 524 U.S. at 765.
____________________________________________________________
2
To be entitled to the affirmative defense, the employer must first
show that no adverse tangible employment action was taken. Faragher,
524 U.S. at 807; Ellerth, 524 U.S. at 765. If this preliminary requirement
4
Based upon Faragher and Ellerth, we vacated the district court's
judgment as to the hostile work environment claim and remanded.
Ocheltree v. Scollon, 161 F.3d 3, 1998 WL 482783 (4th Cir. Aug. 11,
1998). We affirmed the district court's dismissal of Ocheltree's state
law claims because Ocheltree failed to preserve those issues on
appeal. Id.Upon remand, Scollon Productions filed three separate motions for
summary judgment, each of which was denied by the district court.
After the jury returned a special verdict in favor of Ocheltree for
$7,280.00 in compensatory damages and $400,000 in punitive dam-
ages, Scollon Productions filed a motion for judgment as a matter of
law, requesting the district court to set aside the jury verdict, or, in
the alternative to reduce the damages award based upon the statutory
cap on punitive and compensatory damages in 42 U.S.C.A.
§ 1981a(b)(3) (West 1994 & Supp. 2001). The district court denied
the motion to set aside the jury verdict but reduced the punitive and
compensatory damages award to a total of $50,000 pursuant to
§ 1981a(b)(3)(A). Scollon Productions filed a timely notice of appeal.
II.
We review de novo a district court's denial of a Rule 50 motion for
judgment as a matter of law, viewing the evidence in the light most
favorable to the non-moving party. See, e.g., Chaudhry v. Gallerizzo,
174 F.3d 394, 404-05 (4th Cir. 1999). A court should render judgment
as a matter of law when "a party has been fully heard on an issue and
there is no legally sufficient evidentiary basis for a reasonable jury to
find for that party on that issue." Fed. R. Civ. Proc. 50(a); see also
Weisgram v. Marley Co., 528 U.S. 440, 448 (2000). "While we are
compelled to accord the utmost respect to jury verdicts and tread gin-
____________________________________________________________
is met, then the company must prove that it exercised reasonable care in
preventing and promptly correcting any sexually harassing behavior.
Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765. It also must show
that "the plaintiff employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to
avoid harm otherwise." Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at
765.
5
gerly in reviewing them, we are not a rubber stamp convened merely
to endorse the conclusions of the jury, but rather have a duty to
reverse the jury verdict[ ] if the evidence cannot support it." Price v.
City of Charlotte, 93 F.3d 1241, 1250 (4th Cir. 1996) (internal cita-
tions omitted). "Judgment as a matter of law is proper when, without
weighing the credibility of the evidence, there can be but one reason-
able conclusion as to the proper judgment." Id. at 1249 (internal quo-
tation marks omitted).
Title VII makes it an "unlawful employment practice for an
employer . . . to fail or refuse to hire or to discharge . . . or otherwise
discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such indi-
vidual's . . . sex." 42 U.S.C.A. § 2000e-2(a)(1). Because the work-
place environment is one of the "terms, conditions, or privileges of
employment," see Meritor Savs. Bank v. Vinson, 477 U.S. 57, 64-67
(1986), Title VII creates a cause of action in favor of persons forced
to work in a hostile workplace, see id. at 66 (establishing "that a
plaintiff may establish a violation of Title VII by proving that dis-
crimination based on sex has created a hostile or abusive work envi-
ronment"). To establish sexual harassment based upon a hostile or
abusive work environment, a plaintiff is required to prove four ele-
ments: "(1) the subject conduct was unwelcome; (2) it was based on
the sex of the plaintiff; (3) it was sufficiently severe or pervasive to
alter the plaintiff's conditions of employment and to create an abusive
work environment; and (4) it was imputable on some factual basis to
the employer." Spicer v. Virginia, 66 F.3d 705, 710 (4th Cir. 1995)
(en banc); Brown v. Perry, 184 F.3d 388, 393 (4th Cir. 1999). Scollon
Productions contends that the evidence was insufficient with respect
to elements (2), (3), and (4). We need only address elements (2) and
(3).
A.
"Title VII does not prohibit all verbal or physical harassment in the
workplace; it is directed only at `discriminat [ion] . . . because of . . .
sex.'" Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75 (1998).
In evaluating the "because of" prong, this court has noted that Title
VII was not intended to reach "dirty jokes or sexually-based profanity
spoken by a male supervisor to other male employees." Hopkins v.
6
Baltimore Gas & Elec. Co., 77 F.3d 745, 749 (4th Cir. 1996). We
have further explained "that in prohibiting sex discrimination solely
on the basis of whether the employee is a man or a woman, Title VII
does not reach discrimination based on other reasons, such as the
employee's sexual behavior, prudery, or vulnerability." Id. at 751; see
also McWilliams v. Fairfax County Bd. of Supervisors, 72 F.3d 1191,
1196 (4th Cir. 1996) (refusing to recognize a Title VII hostile work
environment claim for discrimination "`because of' [the harasser's]
vulgarity and insensitivity and meanness of spirit"), abrogated on
other grounds by Oncale v. Sundowner Offshore Serv., Inc., 523 U.S.
75 (1998). As we held in Hopkins, the critical issue in evaluating Title
VII's "because of" prong is: "[W]ould the complaining employee
have suffered the harassment had he or she been of a different gen-
der?" Hopkins, 77 F.3d at 750 (quoting Bundy v. Jackson, 641 F.2d
934, 942 n.7 (D.C. Cir. 1981)); cf. Harris v. Forklift Sys., Inc., 510
U.S. 17, 25 (1993) (Ginsburg, J., concurring) ("The critical issue,
Title VII's text indicates, 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.").
With respect to the vast majority of offensive conduct upon which
Ocheltree relies, the uncontested evidence demonstrates conclusively
that Ocheltree would have been exposed to the same atmosphere had
she been male. Of the catalogued offensive behavior, only three inci-
dents were directed toward Ocheltree — the vulgar song, the body-
piercing magazine, and the sexual acts with the mannequin.3 The
____________________________________________________________
3
While Scollon Productions argues that the mannequin incident was
not directed at Ocheltree, there was evidence suggesting that it was
staged for her benefit and that, after she expressed her disgust, the men
began laughing. Thus, drawing all inferences in Ocheltree's favor, we
accept that the incident was directed at Ocheltree.
The dissent also points to an incident directed at Ocheltree by Lock-
lear, in which Locklear allegedly stated that Ocheltree should "go home
and be a housewife." (J.A. at 129); post at 25. The dissent states, "[a] jury
could reasonably see this as another piece of evidence suggesting that
Ocheltree experienced harassment because of her sex." Post at 25. This
suggestion is misplaced, in that Ocheltree's Title VII action was based
upon alleged harassment by her coworkers in the shop and by Hirsch; she
did not claim at trial or on appeal any harassment by Locklear or Scollon
7
remainder of the conduct occurred in group settings as part of the
male workers' daily bantering toward one another and was overheard
or witnessed by Ocheltree. Cf. Hopkins, 77 F.3d at 754 ("several of
the incidents upon which Hopkins relies occurred in group settings");
White v. Federal Express Corp., 939 F.2d 157, 160 (4th Cir. 1991)
("Most of the racist incidents detailed . . . were not directed against
plaintiff . . . ."). Moreover, the uncontested evidence demonstrated
that the men's behavior did not begin or change as of the date
Ocheltree began working with Scollon Productions but had been
ongoing before she came to work for Scollon Productions.4 (J.A. at
____________________________________________________________
— Scollon's Vice President and President — and the jury did not find
any such harassment. (J.A. at 444) (special verdict form stating
"[q]uestions relating ONLY to action of Mrs. Ocheltree's co-workers in
the shop" (emphasis added)); (J.A. at 446 ("[q]uestions relating ONLY
to the Actions of Harold Hirsch"). The dissent states that because Lock-
lear was a corporate officer, his "actions are relevant to the ultimate
question of whether Scollon Productions can be held liable to Ocheltree
for the creation of a hostile work environment." Post at 26 n.3. Whether
the subject conduct can be imputed to Scollon Productions, however, is
a separate issue from whether Ocheltree experienced harassment because
of her sex. In any event, consideration of Locklear's comment would not
materially alter our analysis, particularly in light of the context in which
the comment was made. Ocheltree testified, "He said, `You always have
an excuse, I don't care if someone is dying in your family, you are not
to be on the phone and you must be here at work.' He also told me that
if I didn't like it there that I ought to go home and be a housewife, that
maybe I am not cut out to be here, to be at this job." (J.A. at 129.)
4
The dissent points to testimony by Hodge and Ocheltree wherein each
stated that the atmosphere seemed to become "increasingly coarse"
throughout their employment at Scollon Productions. Post at 24 & n.2.
As the dissent notes, however, Hodge began working at Scollon Produc-
tions "several months after Ocheltree began working there," post at 24;
thus, neither Ocheltree nor Hodge could offer probative evidence regard-
ing the atmosphere at Scollon Productions prior to Ocheltree's employ-
ment. Additionally, insofar as Hodge's and Ocheltree's testimony
supports a finding that the atmosphere at Scollon Productions became
more crude during Ocheltree's employment than it was as of the date she
was hired there is no evidence, however, that the behavior worsened or
became more crude because of Ocheltree's gender. See infra at 11. With-
out such evidence, the simple fact that the behavior worsened cannot
support the jury's verdict.
8
241-42); cf. Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668,
674 (7th Cir. 1993) (court may consider "the lexicon of obscenity that
pervaded the environment of the workplace both before and after the
plaintiff's introduction into its environs" (internal quotation marks
omitted)).
Additionally, setting aside the incidents involving the mannequin
and the vulgar song, there was no evidence demonstrating that the
offensive behavior that occurred in Ocheltree's presence was gender-
related. The discussions certainly were sexually explicit, including the
discussion regarding the body-piercing magazine, and while they
were generally degrading, humiliating, and even insulting, they were
not aimed solely at females in any way. Compare Oncale, 523 U.S.
at 80 ("We have never held that workplace harassment, even harass-
ment between men and women, is automatically discrimination
because of sex merely because the words used have sexual content or
connotations."); Lack v. Wal-Mart, Inc., 240 F.3d 255, 258 (4th Cir.
2001) (overturning a jury verdict for lack of evidence supporting the
"because of" prong where the supervisor regularly told sexually
explicit jokes, used sexually vulgar language, and generally had an
"unabashed taste for lewd humor"), with Smith v. First Union Nat'l
Bank, 202 F.3d 234, 242 (4th Cir. 2000) ("A work environment con-
sumed by remarks that intimidate, ridicule, and maliciously demean
the status of women can create an environment that is as hostile as an
environment that contains unwanted sexual advances."). Ocheltree
conceded that the conduct was equally offensive both to men and
women. Two of Ocheltree's male coworkers, Steve Zouras and John
Riddle, complained to management about the other workers' behav-
ior. Cf. Lack, 240 F.3d at 262 ("Lack fails to come to grips with the
fact that female employees (including his original co-plaintiff Susan
Willis) also lodged similar complaints regarding Bragg's behavior.
This fact undercuts Lack's claim to a substantial extent."); id. ("In its
totality, the evidence compels the conclusion that Bragg was just an
indiscriminately vulgar and offensive supervisor, obnoxious to men
and women alike."). Ocheltree testified that there was never any sug-
gestion that she engage in sexual relations with anyone at the plant,
that she was not frightened by any of the behavior, that nobody
touched her in a sexual or threatening manner, and that none of the
comments were related in any manner to her appearance. (J.A. at
147); cf. Hartsell v. Duplex Prod., Inc., 123 F.3d 766, 773 (4th Cir.
9
1997) ("There is no allegation that Hartsell was inappropriately
touched, propositioned, flirted with, taunted, or even ogled."). Also of
significance is the fact that the vulgarities alleged here, including
"mother f----r," "faggot," "d--k head," "p-ssy," "blow job," and "ass,"
(J.A. at 35-36), are not "unambiguous [gender] epithet[s]," Spriggs v.
Diamond Auto Glass, Inc., 242 F.3d 179, 185 (4th Cir. 2001), such
that it would be reasonable to assume that they were animated by gen-
der bias.5 The dissent disputes this final point, claiming that many of
the sexually-explicit conversations portray women as "sexually subor-
dinate" to men. Post at 28. We cannot agree that the evidence sup-
ports such a characterization; the conversations simply depict— in
graphic and crude terms — heterosexual sex, including oral sex.
Indeed, the conversations depict the sexual prowess of females at
least to the same extent as they do males.
To demonstrate that the harassment was directed at her because of
her gender, Ocheltree relies upon the testimony of Hodge, in which
he stated that he believed the men acted the way they did to "bother"
Ocheltree. (J.A. at 202.) Hodge conceded, however, that his testimony
regarding the motivation for the conduct was pure speculation.6 Addi-
tionally, even if the alleged harassers were intending to bother
Ocheltree, there is no evidence that those participating in the offen-
sive conduct were attempting to bother her because of her gender. On
the evidence presented, the jury would not be permitted to make the
inferential leap that Ocheltree's gender motivated the men's offensive
behavior. As noted above, the uncontroverted evidence demonstrated
that the men engaged in the same type of behavior before Ocheltree
____________________________________________________________
5
The fact that some of the vulgarities are profane references to each
gender's various body parts does not render them inherently abusive or
disparaging on account of gender. If that were true, sexually explicit con-
versations involving obscene terms would invariably constitute gender-
related discrimination, a result that we have rejected. Lack v. Wal-Mart,
Inc., 240 F.3d 255, 262 n.8 (4th Cir. 2001) ("Facially sexual remarks
must be evaluated according to their common usage—however vulgar
the usage may be.").
6
In concluding that Hodge testified to a permissible "inference" instead
of objectionable speculation, post at 29 n.4, the dissent conveniently
ignores the precise language used by Hodge. (J.A. at 202 ("Now, that is
just speculation . . . .").)
10
began working at Scollon Productions, continued to engage in the
behavior around the other men while Ocheltree worked there, and that
several other men found the behavior equally offensive.
Hodge also testified that the behavior worsened after Ocheltree
complained about the behavior at a meeting, which Ocheltree con-
tends is evidence that the sexually explicit behavior was motivated by
gender. Notably lacking, however, was evidence demonstrating that
after Ocheltree complained, the offensive behavior worsened only
toward her, as opposed to worsening toward all employees. Indeed,
from Hodge's testimony, one can only conclude that the behavior
worsened for all employees and was equally offensive to men and
women alike. Accordingly, giving Ocheltree the benefit of all permis-
sible inferences, none of the offensive behavior catalogued by
Ocheltree was directed at her because of her gender, save the vulgar
song and the simulated sex with the mannequin, which arguably could
be construed as gender-related harassment, in that both could be per-
ceived as particularly demeaning towards women or as veiled sexual
propositions. Assuming, without deciding, that these two incidents
constitute gender-related harassment, we next consider whether the
incidents were so severe or pervasive as to have altered the terms of
Ocheltree's employment.
B.
In analyzing the third element of a hostile work environment claim,
this court has emphasized that "[n]ot all sexual harassment that is
directed at an individual because of his or her sex is actionable."
Hartsell, 123 F.3d at 772 (internal quotation marks omitted). "The
occasional vulgar banter, tinged with sexual innuendo, of coarse or
boorish workers would be neither pervasive nor offensive enough to
be actionable. The workplace that is actionable is the one that is hell-
ish." Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir.
1997) (internal quotation marks and citation omitted).
When presented in other Title VII cases with the type of isolated,
scattered incidents that are at issue here, we repeatedly have held that
the conduct was not sufficiently severe or pervasive as a matter of
law. See, e.g., Hartsell, 123 F.3d at 773 ("But the claims propounded
by Hartsell — even assuming them all to be true — are so trivial, so
11
isolated, and so far from the paradigmatic case of sexual harassment,
that summary judgment was clearly appropriate."); Hopkins, 77 F.3d
at 754 (listing cases involving infrequent, isolated incidents in which
we have held that harassment was not severe or pervasive as a matter
of law). Thus, we have no difficulty concluding that the two arguably
gender-related incidents directed at Ocheltree during the year and a
half that she was employed at Scollon Productions were not severe or
pervasive for purposes of Title VII. Having failed to introduce suffi-
cient evidence establishing the third element of Ocheltree's hostile
work environment claim, the claim is not cognizable as a matter of
law. Accordingly, the district court erred by refusing to grant judg-
ment as a matter of law in favor of Scollon Productions.7
C.
The dissent agrees that the gender-based conduct identified in Part
A is insufficient, as a matter of law, to create a hostile or abusive
work environment under this circuit's jurisprudence. Post at 22. The
dissent further agrees "that much of the sexual talk Ocheltree heard
— vulgar though it may be — cannot be seen as disproportionately
demeaning to women." Post at 33-34. The dissent concludes, how-
ever, that "Ocheltree's coworkers' constant descriptions of their sex-
ual exploits, including their near-obsessive interest in discussions of
oral sex," post at 34, constitute gender-based harassment and that,
upon considering these conversations, the evidence was sufficient to
support the jury's verdict. In so concluding, the dissent relies princi-
pally upon the shock value of the salacious conduct.8 However well-
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7
Because we conclude that the gender-based conduct was not suffi-
ciently severe or pervasive for Ocheltree to establish a prima facie case
of sexual harassment under Title VII, we do not reach the questions of
whether the conduct could be imputed to Scollon Productions or whether
Scollon Productions is entitled to operation of the Faragher/Ellerth affir-
mative defense. Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765.
8
The dissent states that a detailed recitation of every aspect of the
crude and offensive behavior that took place at Scollon is necessary to
a proper analysis. Post at 23. It then goes on, however, to conclude that
"much of" the detailed behavior cannot be viewed as gender-based dis-
crimination in this case. Post at 33. Thus, one questions whether the
detailed description genuinely is required for a proper legal analysis.
12
intentioned the dissent's analysis may be, it ignores or substantially
discounts controlling circuit and Supreme Court Title VII jurispru-
dence and relies upon a number of flawed premises, warranting a
somewhat extended response.
The crux of the dissent's analysis relies on the premise that
"[c]ourts have . . . recognized that harassing conduct can be `because
of sex' even when the conduct `is not directed at a particular individ-
ual or group of individuals, but is disproportionately more offensive
or demeaning to one sex.'" Post at 31 (quoting Robinson v. Jackson-
ville Shipyards, Inc., 760 F. Supp. 1486, 1522-23 (M.D. Fla. 1991)).
It then states that a Title VII plaintiff can demonstrate that conduct
is gender-based by showing that the "environment was more hostile
to her because of her sex than it would have been to a man." Post at
32. Despite the dissent's protestations to the contrary, such an analyti-
cal framework defines "discriminat[ion] . . . because of . . . sex"
exclusively by reference to the potential unintended effects of offen-
sive conduct on a particular gender, without regard to the motivation
for, or intent underlying, the offensive conduct.9 Whatever merit this
approach might have, it is diametrically opposed to the construction
that has been given to the phrase "discriminat [ion] . . . because of . . .
sex" throughout Title VII sexual harassment jurisprudence.10 Oncale,
____________________________________________________________
9
Title VII prohibits intentional sex discrimination as well as discrimi-
nation that has a disparate impact on a particular sex. Sexual harassment
is a "distinct . . . form" of intentional sex discrimination. DeClue v. Cen-
tral Illinois Light Co., 223 F.3d 434, 437 (7th Cir. 2001); see also
Ellerth, 524 U.S. at 756 ("Sexual harassment under Title VII presupposes
intentional conduct."). Ocheltree litigated this case only as a sexual
harassment case and not as a disparate impact case. DeClue, 223 F.3d at
437; supra at 4.
10
By misapprehending the nature of the "discriminat[ion] . . . because
of . . . sex" inquiry, the dissent incorrectly assumes that the question of
whether Ocheltree "would have been exposed to the same atmosphere
had she been male" is somehow distinct from the question of "`whether
members of one sex are exposed to disadvantageous terms or conditions
of employment to which members of the other sex are not exposed.'"
Post at 32 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993)
(Ginsburg, J., concurring)). As the above-cited cases make clear, how-
ever, there is no material difference between the two questions; once the
13
523 U.S. at 79, 80 (examining the question of what "discriminat[ion]
. . . because of . . . sex" means and focusing on the harasser's motiva-
tion for the offensive conduct, and thus reaffirming that the critical
issue is discriminatory intent); Lack, 240 F.3d at 261 (asking whether
offensive comments were "animated by Bragg's hostility to Lack as
a man"); Smith v. First Union Nat'l Bank, 202 F.3d 234, 242 (4th Cir.
2000) ("An employee is harassed or otherwise discriminated against
`because of' his or her gender if, `but for' the employee's gender, he
or she would not have been the victim of the discrimination." (citing
Wrightson v. Pizza Hut of America, Inc., 99 F.3d 138, 142 (4th Cir.
1996)); Succar v. Dade Co. Sch. Bd., 229 F.3d 1343, 1345 (11th Cir.
2000) (reiterating that harassment is "because of" gender only when
the harassment is motivated by gender); Green v. Administrators of
the Tulane Educ. Fund, 284 F.3d 642, 659 (5th Cir. 2002) (approving
a jury instruction that stated that jury must find that gender was the
"but for" cause of the harassing conduct); Williams v. General
Motors, Corp., 187 F.3d 553, 565 (6th Cir. 1999) (ruling that a plain-
tiff must show that "but for the fact of her sex, she would not have
been the object of harassment" (citation omitted)); see also DeClue v.
Central Illinois Light Co., 223 F.3d 434, 437 (7th Cir. 2001) (discuss-
ing distinction between sexual harassment hostile work environment
claim and a sexual discrimination disparate impact claim); Gillming
v. Simmons Indus., 91 F.3d 1168, 1171-72 (8th Cir. 1996) (affirming
a jury instruction that required the jury to find that the harassing acts
____________________________________________________________
former has been answered in the negative, the latter necessarily also has
been answered in the negative. Wrightson v. Pizza Hut of America, Inc.,
99 F.3d 138, 142 (4th Cir. 1996) ("An employee is harassed or otherwise
discriminated against `because of' his or her sex if, `but-for' the employ-
ee's sex, he or she would not have been the victim of the discrimina-
tion."); Hopkins, 77 F.3d at 750 (opinion of Niemeyer, J.) (citing Bundy
v. Jackson, 641 F.2d 934, 942 n.7 (D.C. Cir. 1981) ("the question is one
of but-for causation: would the complaining employee have suffered the
harassment had he or she been of a different gender")). Nor can we
accept credit for "commit[ting] this court to a course" that focuses on the
alleged harasser's motivations rather than the unintended consequences
of his actions. Post at 36. To the contrary, this course long ago was set
out by the Supreme Court and prior panels of this court, and it is our duty
to apply the well-established analytical framework to the facts before us,
regardless of how unsavory those facts may be.
14
were intentional and motivated by gender); EEOC Comp. Manual
(CCH) §615.2(b)(3) (1987) ("[T]he crucial inquiry is whether the
harasser treats a member or members of one sex differently from
members of the other sex."); see generally David S.
Schwartz, When is Sex Because of Sex? The Causation Problem in
Sexual Harassment Law, 150 U. Pa. L. Rev. 1697, 1772-74 (2002)
(concluding that use of an "effects" test or a disparate impact test, as
opposed to a motivation test, is improper when evaluating a sexual
harassment claim).
Moreover, the dissent fails to explain persuasively how its analysis
comports with that set forth in Lack, wherein we explicitly rejected
the argument that sexually explicit jokes and sexually vulgar language
directed at, and offensive to, both genders constitute discrimination
because of sex. Lack, 240 F.3d at 258 (addressing a set of sexually
vulgar remarks comparable to the type and number of those at issue
here); see also Hopkins, 77 F.3d at 749 (stating that Title VII does not
reach "dirty jokes or sexually-based profanity spoken by a male
supervisor to other male employees."). In so holding, we relied on the
fact that Lack had not introduced any evidence, comparative or other-
wise, of gender-based discrimination. Lack, 240 F.3d at 262 ("Lack,
however, failed to offer such evidence — or any other basis for a jury
to conclude that Bragg's conduct was not just sexually tinged harass-
ment, but was instead harassment because of sex."). Accordingly, far
from being "a logical extension" of Title VII principles, the dissent's
analysis sharply diverges from well established case law in the
Supreme Court and in virtually every circuit, including this one.
We do not dispute, of course, that sexually explicit banter can, in
some circumstances, constitute gender-based discrimination, but the
inquiry is always whether "but for" the plaintiff's gender, the harass-
ment would not have occurred — not whether "but for" the plaintiff's
gender, she would have felt discriminated against, irrespective of the
harasser's motivation. Ocheltree has presented no legally sufficient
evidence demonstrating that her gender motivated the men's sexually
explicit conduct and conversations (save, perhaps, the mannequin and
vulgar song incidents discussed above, supra at 9); i.e., no evidence
demonstrating that she would not have been exposed to the same
offensive behavior had she been male. Thus, she has not proven that
15
the sexually explicit behavior upon which the dissent relies consti-
tutes gender-based discrimination.11
The dissent's contrary conclusion is premised not only upon an
improper analytical framework but also upon an overly rigid view
regarding the significance of the fact that the offensive discussions
were sexual in content. The dissent would have us adopt a rule that
conversations between males about their heterosexual activities in the
presence of a female virtually always constitute sex-based harassment
because, according to the dissent's characterization, these conversa-
tions depict women as "sexually subordinate to men."12 As the Court
____________________________________________________________
11
To the extent the dissent would have us rely exclusively on the
effects of the offensive behavior that took place at Scollon Productions,
it notably avoids discussing the lack of any allegation or evidence that
Ocheltree's work or productivity was affected negatively by the conduct
or that Ocheltree ever sought to be transferred to another area of Scollon
Productions where other women worked. In fact, she testified that, even
with consideration of the offensive conduct, she "loved" her job. (J.A. at
114.)
Also significant to any "effects" inquiry is Ocheltree's failure to men-
tion the ongoing harassment to Scollon or Locklear, particularly in light
of her previous experience involving a complaint about offensive behav-
ior. In June 1994, shortly after Ocheltree was hired, Steve Zouras, one
of Ocheltree's coworkers, reported to Scollon that another employee had
told a sexually explicit joke to Ocheltree and that she was offended by
the joke. Locklear asked Ocheltree about the incident, and she confirmed
it. The offending employee immediately was fired. Ocheltree acknowl-
edged that, from Scollon and Locklear's handling of this complaint, she
was aware that Scollon or Locklear would redress her grievance if noti-
fied of the behavior. Ocheltree testified that she saw Scollon once a week
in the production shop and Locklear more than once a week. Yet,
Ocheltree never notified either that the offensive behavior was continu-
ing or worsening. Supra at 3-4 (noting that Ocheltree indicated a desire
to speak with Scollon and Locklear but never informed either about the
nature of her complaint).
12
The dissent asserts that it does not suggest that conversations about
heterosexual behavior are automatically demeaning to women but that
the "tone" and "tenor" of the conversations must be evaluated to deter-
mine whether gender-based discrimination exists. Nevertheless, it cites
only the frequency and the sexual content of the conversations in support
16
stated in Oncale, however, "[w]e have never held that workplace
harassment, even harassment between men and women, is automati-
cally discrimination because of sex merely because the words used
have sexual content or connotations." Oncale, 523 U.S. at 80; see also
id. at 81 ("[Title VII] does not reach genuine but innocuous differ-
ences in the ways men and women routinely interact with members
of the same sex and of the opposite sex."). Rather, the motivation for
the harassment must be evaluated in light of "the social context in
which particular behavior occurs and is experienced by its target." Id.
at 81. Here, an examination of the relevant context involves an
acknowledgment that the offensive conduct took place in a costume
production shop where public access is controlled, not a church
office, retail shop, bank, or professional office.13 In fact, were we to
adopt the dissent's rhetoric and hold that harassment inevitably is
because of sex whenever "a workplace is suffused with representa-
tions of women as sexual objects," one wonders how any business
that deals routinely with sexually explicit content would escape Title
VII liability.
Also incorrect is the assumption pervading the dissent that women
are more insulted and demeaned by sexual banter about heterosexual
sex, and particularly discussions of oral sex, than are men.14 This
____________________________________________________________
of its conclusion that many of the discussions that took place at Scollon
Productions constituted gender-based harassment. Post at 34. The dissent
seems to suggest a rule whereby a reviewing court would affirm a find-
ing of gender-based discrimination once a certain number of conversa-
tions about heterosexual behavior occur in the workplace in the presence
of a female. Thus, Title VII would become a workplace code for "gentle-
manly conduct" in the presence of women.
13
This fact is significant to a proper contextual analysis because in an
environment, like the production shop where public access is controlled
offensive behavior among the workers may be more prevalent than it
otherwise would be in an environment easily accessible by the public.
We do not hold or intimate, as the dissent suggests, that "women in blue
collar jobs must put up with conduct that women who work in banks or
professional offices need not tolerate." Post at 39 n.8.
14
The dissent also fails to explain why, if women are inevitably
demeaned by conversations about heterosexual sex, men would not have
felt equally demeaned or harassed by the graphic conversations about
homosexual sex that took place at Scollon Productions.
17
assumption is paternalistic and contrary to Title VII itself. The Fifth
Circuit has cautioned against formulating Title VII jurisprudence
against the backdrop of such outdated stereotypes, stating:
A hostile environment claim embodies a series of criteria
that express extremely insensitive conduct against women,
conduct so egregious as to alter the conditions of employ-
ment and destroy their equal opportunity in the workplace.
Any lesser standard of liability, couched in terms of conduct
that sporadically wounds or offends but does not hinder a
female employee's performance, would not serve the goal of
equality. In fact, a less onerous standard of liability would
attempt to insulate women from everyday insults as if they
remained models of Victorian reticence. A lesser standard of
liability would mandate not equality but preference for
women: it would create incentives for employers to bend
over backwards in women's favor for fear of lawsuits. Now
that most American women are working outside the home,
in a broad range of occupations and with ever-increasing
responsibility, it seems perverse to claim that they need the
protection of a preferential standard. The careful, heightened
phrasing of a hostile environment claim, enforceable where
working conditions have palpably deteriorated because of
sexually hostile conduct, aims to enforce equality, not pref-
erence.
DeAngelis v. El Paso Mun. Police Officers Ass'n, 51 F.3d 591, 593
(5th Cir. 1995). Similarly, feminist literature recognizes that eliminat-
ing sexual content in the workplace is not a viable or valuable goal
of hostile work environment jurisprudence and that working women
can be, and usually are, as comfortable as are men with sexually
explicit conduct and conversations. Vicki Schultz, Reconceptualizing
Sexual Harassment, 107 Yale L.J. 1683, 1794 (1998) ("Sexuality
should not be conceptualized solely as a sphere of gender domination,
but also as a potential arena of women's empowerment."); id. at 1791-
92 ("[F]eminism receives a bad rap when workers are fired in the
name of a feminist-inspired cause of action for merely talking about
sex . . . . [S]uch firings may sow the seeds of backlash against protect-
ing women from genuinely harmful forms of hostile work environ-
ment harassment."); Barbara Gutek, Sex and the Workplace: The
18
Impact of Sexual Behavior and Harassment on Women, Men, and
Organizations 143 tbl.2 (1985) (showing that, even though 28% of a
random sample of women working in male-dominated workplaces
experienced frequent sexual talk or joking, a very minor percentage
of those sampled considered sexual harassment to be a major problem
at work); Ellen Carol DuBois & Linda Gordon, Seeking Ecstasy on
the Battlefield: Danger and Pleasure in Nineteenth-Century Feminist
Sexual Thought, in Pleasure and Danger: Exploring Female Sexuality
31, 32-39 (Carol S. Vance ed., Pandora Press 1992) (discussing how
19th-century "social purity" feminists' emphasis on sexuality as a
realm of danger and oppression for women replicated sexist and clas-
sist tendencies within wider society to separate women into those
deserving of protection and those deserving of condemnation); cf.
Carlin Meyer, Sex, Sin and Women's Liberation, 72 Tex. L. Rev.
1097, 1119-20 (1994) (noting that, in the context of pornography reg-
ulation, "[j]udges, juries, and most members of the public are likely
to find most explicit and `deviant' sexual depictions repell[e]nt and
view as degrading not only sexual portrayals that descriptively,
humorously, playfully, or ironically depict subordinated women, but
also those that are explicitly intended to challenge that subordina-
tion").
Because we view all facts and inferences in favor of Ocheltree, we
have not relied on evidence regarding Ocheltree's participation in the
offensive conduct, which, for the most part, she generally denied, to
evaluate the sufficiency of the evidence to support the jury's verdict.
Nevertheless, to place in context the dissent's description of the envi-
ronment at Scollon Productions, we note there is substantial evidence
that Ocheltree does not fit the dissent's model of femininity. Several
witnesses testified that they heard Ocheltree talk about her "pet name"
for her husband's penis and other sexual matters. (J.A. at 239-40,
278.) These witnesses also testified that Ocheltree brought a picture
of herself to work in which she was dressed in a bikini and asked a
co-worker if he thought it was sexy. One coworker testified that
Ocheltree brought a picture into work of a wall upon which her hus-
band had written her name in urine. The coworker also testified about
an occasion when two other workers were discussing whether to "use
six or eight inch domes" to construct the head of one of the costumes,
and Ocheltree "volunteer[ed] that she was not interested in six or
eight inches because she had twelve inches waiting for her at home."
19
(J.A. at 240, 343.) With respect to the body-piercing book, a coworker
testified that Ocheltree voluntarily looked at the book "by herself"
while on break.15 (J.A. at 343.) This evidence would suggest that
Ocheltree was not any more sensitive to vulgarity than some of her
male counterparts. Thus, in concluding that "a reasonable woman"
would be more offended and demeaned by sexually explicit conversa-
tions than a man, the dissent adopts the very stereotypes that Title VII
was designed to eradicate.
In sum, the dissent misapprehends the controlling law, ignores the
context in which the offensive behavior took place, and attempts to
transmute Title VII into a neo-Victorian chivalry code designed to
protect what the dissent imagines to be the tender sensitivities of con-
temporary women. Such a requirement of preferential and paternalis-
tic treatment would be a strange interpretation of statutory language
that demands equality. For the above-stated reasons, we are con-
strained to reject the dissent's overly broad conception of when
harassment constitutes "discriminat[ion] . . . because of . . . sex" in
a hostile work environment claim.
D.
Finally, in response to the dissent's repeated assertions that we
have not given proper deference to the jury's verdict, it bears mention
that the jury should not have been given the opportunity to consider
Ocheltree's claim because, as a matter of law, the evidence of sexual
harassment was insufficient to submit the claim to the jury. The fact
that the claim was improperly submitted to the jury does not allow us,
as the dissent suggests, to affirm the jury's verdict on the basis of evi-
dence that is legally insufficient to support the verdict. Our holding
in this regard is neither novel nor exceptional; we consistently have
granted judgment as a matter of law when presented in other Title VII
cases with conduct of the type alleged by Ocheltree. See, e.g., Lack,
240 F.3d at 258, 262 (overturning a jury verdict on similar evidence
presented here); Hartsell, 123 F.3d at 768-69, 772-73 (concluding that
____________________________________________________________
15
Ocheltree testified that she told her husband about the offensive con-
duct, and he told her "well, it is a male atmosphere, just suck it up." (J.A.
at 114, 154.) She also testified that she used the "f—-" word, but not "in
a sexual way." (J.A. at 130.)
20
Hartsell was not entitled to proceed to trial when coworker referred
to Hartsell as a "mini-van driving mommy," and made comments
such as "[W]hy don't you go home and fetch your husband's slippers
like a good little wife, that's exactly what my wife is going to do for
me," and "We've made every female in this office cry like a baby. We
will do the same to you."); Dwyer v. Smith, 867 F.2d 184, 187-88 (4th
Cir. 1989) (affirming directed verdict in Title VII case despite evi-
dence that female police officer was subjected to pornographic mate-
rial placed in her station mailbox and to fellow officers' sexually
explicit conversations); Hopkins, 77 F.3d at 751 (noting that "because
of . . . sex in Title VII does not mean because of the victim's . . . vul-
nerability to sexually-focused speech or conduct" (internal quotation
marks omitted)); see also Baskerville v. Culligan Int'l Co., 50 F.3d
428, 430 (7th Cir.1995) ("The concept of sexual harassment is
designed to protect working women from the kind of male attentions
that can make the workplace hellish for women . . . . It is not designed
to purge the workplace of vulgarity."). To the extent the dissent would
have us employ a more lenient standard due to the extremely distaste-
ful nature of the facts of this case, we agree that there exists "a pro-
found difference in our respective approaches to reviewing a jury
verdict." Post at 42.
III.
Regardless of how repulsive we find the behavior to have been dur-
ing and before Ocheltree's employment with Scollon Productions, we
are compelled to conclude that the conduct does not give rise to an
actionable claim for sexual harassment under Title VII. As we stated
in Hopkins: "While we do not approve of [the plaintiff's co-worker's]
apparent willingness to offend and provoke employees with his
ambiguously sexual innuendoes, Title VII was not designed to create
a federal remedy for all offensive language and conduct in the work-
place . . . ." Hopkins, 77 F.3d at 754. "There perhaps `ought to be a
law against' . . . puerile and repulsive workplace behavior . . . in order
to protect the victims against its indignities and debilitations, but . . .
Title VII is not that law." Id. at 752 (quoting McWilliams, 72 F.3d at
1196). "Ultimately . . . our role as courts is limited to faithfully inter-
preting the statutes enacted by the Congress and signed into law by
the President," Wrightson, 99 F.3d at 144, and Title VII was not
enacted as a workplace code for "gentlemanly conduct" or chivalry.
21
Thus, we conclude that the district court erred by denying Scollon
Productions's motion for judgment as a matter of law, and we reverse
and remand for the district court to enter judgment in favor of Scollon
Productions.16
REVERSED AND REMANDED WITH INSTRUCTIONS
MICHAEL, Circuit Judge, dissenting in part and concurring in the
judgment in part:
Over the objections of Lisa Ocheltree's counsel, the district court
directed a jury of four men and four women to answer a detailed set
of special interrogatories about Ocheltree's sexual harassment claim
against Scollon Productions, Inc. The jury answered every question
in Ocheltree's favor and awarded her compensatory damages of
$7,280 and punitive damages of $400,000. (The district court later
reduced the punitive damages to $42,720, bringing the total judgment
against the company in line with the $50,000 cap imposed by 42
U.S.C. § 1981a(b)(3)(A).) Today, the majority reverses the entire
judgment. It concludes that Ocheltree suffered (at most) only two
incidents of harassment that were sex based: the vulgar song and the
incident when Ocheltree's coworker performed simulated oral sex on
a mannequin. It then concludes that, as a matter of law, these two
incidents spaced over the eighteen-month period when Ocheltree
worked at Scollon Productions were insufficient to create a hostile or
abusive work environment. I agree that, under our precedents, the
jury's verdict could not stand if the two incidents identified by the
majority were the only evidence of sex-based harassment in the
record. I believe, however, that the majority's conclusion rests on
both an overly narrow conception of when harassment is "because of
sex" and a failure to read the trial evidence in the light most favorable
to Ocheltree. I would uphold the jury's decision that Ocheltree was
subjected to a hostile work environment because of her sex. Because
I would also hold that Scollon Productions had constructive knowl-
edge of the harassment and failed to take effective remedial action,
____________________________________________________________
16
Insofar as we conclude that Ocheltree failed to establish the essential
elements of a sexual harassment claim, we likewise reverse the district
court's denial of Scollon Productions's motion to set aside the jury's
award of punitive damages.
22
I respectfully dissent from the majority's decision to reverse the
award of compensatory damages. I concur (with some reluctance) in
the majority's judgment that the punitive damages award must be
reversed.
I.
Title VII does not protect workers against all forms of verbal and
physical harassment in the workplace. It protects only against conduct
that is (1) unwelcome, (2) because of sex, and (3) "sufficiently severe
or pervasive to alter the plaintiff's conditions of employment and to
create an abusive work environment." Anderson v. G.D.C., Inc., 281
F.3d 452, 458 (4th Cir. 2002) (internal quotation marks and citation
omitted). In addition, a plaintiff who establishes that her work envi-
ronment was abusive can only recover if there is some basis on which
responsibility for the abusive environment can be imputed to her
employer.
In reviewing the district court's denial of Scollon Productions's
motion for judgment as a matter of law, the first question is how
much of the conduct complained of by Ocheltree could be seen by a
reasonable jury as "because of sex." Once the truly sex-based conduct
has been identified, the second question is whether that conduct could
be seen by a reasonable jury as sufficiently severe or pervasive to
create an abusive work environment. My problem with the majority's
analysis is its answer to the first question. I believe that a reasonable
jury could identify a much greater amount of the alleged harassment
as sex based than the majority would allow. Once the first question
is answered properly, a reasonable jury could regard the sex-based
conduct complained of by Ocheltree as sufficiently severe or perva-
sive to create an abusive work environment.
Because I believe that a more detailed and explicit account of the
trial evidence is needed to determine how much of the conduct com-
plained of by Ocheltree could reasonably be seen as sex based, I
begin my analysis by supplementing the majority's account of the evi-
dence concerning Ocheltree's work environment. Much of what I add
is raw, but without it the evidence is not presented in the light most
favorable to Ocheltree.
23
Lisa Ocheltree began working in the production shop at Scollon
Productions in February 1994. She was the only female employee in
the shop, working alongside "ten or eleven" men. J.A. 110. In con-
trast, at least twenty women were employed in the "sewing room pro-
duction area." J.A. 312.1 Ocheltree testified that the atmosphere in the
production shop was "fun" and "friendly" when she first began to
work there, but that over the course of the first year of her employ-
ment, sexual banter and sexual conduct of other sorts began to occur
with increasing frequency. J.A. 111, 113. Her testimony was sec-
onded by Brian Hodge, who started working in the production shop
several months after Ocheltree began working there. Hodge testified
that the atmosphere seemed okay to him initially but that over time
the work environment became increasingly coarse. J.A. 199-200.2
Ocheltree recounted several specific incidents of harassment, the
three most prominent of which (the vulgar song, the oral-sex-on-the-
mannequin incident, and the body-piercing book incident) are sum-
marized by the majority.
The three incidents mentioned by the majority bear recounting here
as part of the whole picture facing Ocheltree. On one occasion a male
coworker went up to Ocheltree and sang the following song to her
"like he was in the opera": "Come to me, oh, baby come to me, your
breath smells like c[o]m[e] to me." J.A. 115. To Ocheltree's chagrin
the men in the production shop expressed their enjoyment of the inci-
dent with much laughter. Id. On another occasion when Ocheltree
____________________________________________________________
1
The record does not indicate whether other women worked in the pro-
duction shop either before or after the period when Ocheltree worked
there.
2
The majority points to uncontested evidence that the atmosphere in
the production shop was essentially the same before Ocheltree began
working there as it was at the beginning of her employment. Ante at 8.
This is irrelevant. The crucial point is this: Ocheltree's evidence estab-
lished that the behavior she complained of worsened at some point after
her arrival, and it became still more objectionable in the wake of her
complaints. This evidence supports Ocheltree's claim that the harassing
behavior was targeted at her as the only female in the production shop,
thus belying the majority's assertion that the jury heard uncontested evi-
dence that Ocheltree "would have been exposed to the same atmosphere
had she been male." Ante at 7.
24
arrived at work and proceeded to the time clock, two coworkers were
positioned at a nearby mannequin. One was pinching the mannequin's
nipples, and the other was on his knees simulating oral sex on the
mannequin. Ocheltree said to the men, "You guys are disgusting. This
needs to stop." As she turned to leave the room, she heard laughter
in the background. J.A. 115-17. On the third occasion Ocheltree was
seated at her work station, and some of her coworkers were looking
at a book that contained pictures of men with pierced genitalia. One
coworker took the book, approached Ocheltree, and opened the book
to the centerfold photograph showing a man's crotch area. The scro-
tum was pierced with hoops, and there were chains running up to the
top of the penis. The coworker, with his male colleagues looking on,
said, "Lisa, what do you think about this?" Again, this generated
laughter from the men in the shop. J.A. 117-18.
Ocheltree also presented evidence, not discussed by the majority,
of other incidents that could reasonably be seen as sex-based harass-
ment. Brian Hodge testified that some of the men who worked in the
production shop would "often fondle" the mannequin as they walked
by, J.A. 200, and that "anytime [Ocheltree] was walking by just about
they would do something sexual to the mannequin in front of her just
because they knew it bothered her," J.A. 202. In addition, Ocheltree
testified that Ellery Locklear, vice president of Scollon Productions,
berated her for using the phone to check in on her son, who was at
home recovering after breaking his tail bone in two places. (Appar-
ently, Ocheltree's call violated the company's telephone usage pol-
icy.) According to Ocheltree, Locklear told her, "I don't care if
someone is dying in your family, you are not to be on the phone and
you must be here at work." J.A. 129. Ocheltree claims that Locklear
then said that if she did not like that rule, she ought to go home and
be a housewife because she was not cut out for her work at Scollon
Productions. Id. A jury could reasonably see this as another piece of
evidence suggesting that Ocheltree experienced harassment because
of her sex. Cf. Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 773 (4th
Cir. 1997) (characterizing question to plaintiff about "whether she
would be a `mini van driving mommy' or `be a salesperson and play
with the big boys'" and statement that the plaintiff should "`go home
25
and fetch [her] husband's slippers like a good little wife'" as "logi-
cally attributable" to the plaintiff's gender).3
Then there is the matter of the sexual banter that Ocheltree claims
occurred on a daily basis. The majority describes this banter in only
the most general terms, but the majority's reticence blunts the force
of Ocheltree's case. I will therefore present, in the light most favor-
able to Ocheltree, an account of the running sexual commentary in the
production shop.
Ocheltree presented evidence of several different kinds of inappro-
priate and unprofessional sexual remarks in her workplace that she
views as evidence of sex-based harassment. One category is simply
the extensive use of profanity, with many of the words sexually
tinged: motherfucker, fuck, faggot, dickhead, pussy, ass, and the like.
A second category involves Ocheltree's male coworkers' use of
explicitly sexual insults to needle each other. For example, Ocheltree
testified that "[g]uys would make hand gestures down at their private
parts and tell other guys to suck it." J.A. 113. Coworkers sometimes
suggested that various male employees were involved in homosexual
relationships and that one employee was having sex with a dog. A
third category, and the one that strikes me as most significant, is
Ocheltree's evidence that her coworkers constantly discussed their
sexual exploits with their wives and girlfriends in extremely graphic
terms. Ocheltree testified that her coworkers would regularly talk
about their sexual experiences of the night before "as to that she swal-
lowed, she gave good head, that I fucked her all night long," etc. J.A.
118. One employee related that his girlfriend "gave good head and
that she likes to swallow, that she liked it from behind, that she would
do it anywhere with him." J.A. 120. He further said that she "could
____________________________________________________________
3
The majority criticizes my reliance on this incident on the ground that
the special interrogatories submitted to the jury were limited to questions
about the conduct of Harold Hirsch, the shop supervisor, and Ocheltree's
coworkers. Ante at 7-8 n.3. Yet Locklear was the vice-president of the
company, and his actions are relevant to the ultimate question of whether
Scollon Productions can be held liable to Ocheltree for the creation of a
hostile work environment. See Andrade v. Mayfair Mgmt., Inc., 88 F.3d
258, 261 (4th Cir. 1996) (stating that harassing behavior by a corporate
officer will be deemed that of the employer).
26
suck a golf [ball] through a garden hose." J.A. 120. In his testimony,
Brian Hodge recounted how one of the employees in the production
area often "would speak of [his wife] sucking his dick and swallowing
and letting it run down the side of her face and stuff." J.A. 200.
Ocheltree testified that she heard remarks along these lines "every
day." J.A. 120. Hodge also testified that he heard such remarks on a
daily basis. J.A. 204. Finally, Ocheltree testified that on one occasion,
shop supervisor Harold Hirsch said that he was interested in and
enjoyed having sex with young boys and that Hirsch's comments
were "purposefully said in front of [her] because [Hirsch and two
other production shop employees] enjoyed looking at [her] and seeing
[her] reaction." J.A. 119.
Having set out more fully the evidence concerning Ocheltree's
workplace environment in the light most favorable to her, I turn to the
question of whether and to what extent the objectionable conduct was
sex based. Under the Supreme Court's Oncale decision the proper
question is "`whether members of one sex are exposed to disadvanta-
geous terms or conditions of employment to which members of the
other sex are not exposed.'" Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 80 (1998) (quoting Harris v. Forklift Sys., Inc., 510
U.S. 17, 25 (1993) (Ginsburg, J., concurring)). The majority acknowl-
edges, at least for the sake of argument, that a reasonable jury could
regard the vulgar song and the incident involving simulated oral sex
on the mannequin as sex based because they could be seen as "partic-
ularly demeaning towards women or as veiled sexual propositions."
Ante at 11. It then reasonably concludes that two incidents over the
space of eighteen months are insufficient as a matter of law to consti-
tute an abusive work environment. I suspect that the majority would
hold that even if a reasonable jury could regard the body-piercing
book incident, the various mannequin fondling incidents described by
Hodge, and Locklear's comment that Ocheltree should go home and
be a housewife as sex based, the sum total of these incidents would
still be insufficiently severe or pervasive as a matter of law. Though
I have my doubts about that conclusion, I am willing to accept it for
purposes of argument. To my mind, the majority's primary mistake
is its conclusion that a reasonable jury could not regard any of the
day-to-day sexual banter complained of by Ocheltree as sex based.
The majority offers several reasons for this conclusion. First, it por-
trays Ocheltree as a mere bystander to discussions between the men
27
in the production shop and claims that the same kind of talk would
have occurred regardless of Ocheltree's presence there. In addition,
it argues that even if some of the sexual banter was a reaction to
Ocheltree's presence in the workplace or her complaints, the alleged
harassment was still not sex based because "even if the alleged
harassers were intending to bother Ocheltree, there is no evidence that
those participating in the offensive conduct were attempting to bother
her because of her gender." Ante at 10. The majority also observes
that even though the banter was "sexually explicit" and "generally
degrading, humiliating, and even insulting," it was not "aimed solely
at females in any way." Ante at 9. I find these reasons unconvincing.
In my view, there are two ways in which a reasonable jury could
find that much of the sexual banter complained of by Ocheltree satis-
fied the "because of sex" prong. First, a reasonable jury could find
that much of the banter was "directed at" Ocheltree in the sense that
it was intentionally said in her presence in order to make her uncom-
fortable and self-conscious about her status as the only woman in the
production shop. Second, a reasonable jury could find that even if
very few of the sexual remarks were made in response to Ocheltree's
presence in the production shop, her male coworkers' relentless,
graphic descriptions of their sex lives count as sex-based harassment
because they portray women as sexually subordinate to men.
Ocheltree's coworkers made her uncomplaining submission to an
atmosphere suffused with degrading images of female sexuality an
implicit condition of her employment, and this harassment was "be-
cause of sex" in the sense that it made the workplace more hostile to
Ocheltree precisely because she was a woman.
A.
As to my first point, Ocheltree concedes that most of the offensive
conduct was not aimed exclusively at her. Instead, she claims that her
coworkers knowingly made sexual remarks and engaged in other
behavior with a sexual content in her presence with the intention of
making her uncomfortable. Ocheltree presented the following evi-
dence in support of this theory. Ocheltree and Hodge both testified
that Ocheltree's coworkers enjoyed offending her and laughing at her
reactions. When asked whether the incident involving simulated oral
sex on the mannequin was intended to provoke a reaction from her,
28
Ocheltree testified: "Why else would two guys be doing that at the
time when I was supposed to be in there going to work . . . and then
whenever I say all this is disgusting and everyone laughs, who would
it be directed to? I was the only female there." J.A. 117. She also tes-
tified regarding Hirsch's remark about having sex with little boys that
"[i]t was purposefully said in front of me because they enjoyed look-
ing at me and seeing my reaction." J.A. 119. Brian Hodge testified
that "[a]nytime [Ocheltree] was walking by just about they would do
something sexual to the mannequin in front of her just because they
knew it bothered her." J.A. 202. In addition, both Ocheltree and
Hodge testified that sexual talk and conduct in the production area
first became a problem after Ocheltree began working at Scollon Pro-
ductions. Hodge further testified that the amount of sexual conduct
and talk escalated considerably after Ocheltree complained about it at
a safety meeting for production shop employees. J.A. 202-03. A rea-
sonable jury could infer from this evidence that a considerable
amount of the sexual talk and behavior in the production shop was
intended, at least in part, to make Ocheltree uncomfortable and to pro-
voke reactions from her.4
The majority also suggests that even if Ocheltree's coworkers
intended to bother her, "there is no evidence that those participating
in the offensive conduct were attempting to bother her because of her
gender." Ante at 10. The majority does not elaborate, but I take its
argument to be that Ocheltree's evidence could at most show that she
____________________________________________________________
4
The majority understates the evidence that the harassing behavior was
intended to bother Ocheltree by mentioning only Hodge's testimony that
Ocheltree's coworkers would "do something sexual to the mannequin"
whenever Ocheltree walked by "just because they knew it bothered her."
J.A. 202. The majority then dismisses this testimony because Hodge
stated that he was only speculating about the motives behind the manne-
quin incidents. The majority places more weight on Hodge's character-
ization than it will bear. A reasonable jury could conclude that by
characterizing his testimony as "speculation," Hodge simply acknowl-
edged that he was making an inference when he said that Ocheltree's
coworkers fondled the mannequin in order to bother her. Evidence in the
form of inferences about the motives of other people is a common feature
of Title VII cases, and there is nothing problematic about Hodge's testi-
mony in this regard. See, e.g., Gossett v. Oklahoma ex rel. Bd. of Regents
for Langston Univ., 245 F.3d 1172, 1179 (10th Cir. 2001).
29
was harassed not because she was a woman, but simply because she
was offended by and objected to working in an environment saturated
with sexually explicit remarks. Cf. Hopkins v. Baltimore Gas & Elec.
Co., 77 F.3d 745, 751 (4th Cir. 1996) ("Title VII does not reach dis-
crimination based on . . . [an employee's] sexual behavior, prudery,
or vulnerability."). Perhaps the majority is correct to suggest that
Ocheltree's argument fails if her coworkers harassed every employee
— male or female — who was offended by or objected to the sexual
talk and antics in the production shop. Such proof would suggest that
Ocheltree was targeted not because of her sex, but simply because of
her "prudery," her sensitivity to the sexual remarks.5 The question,
though, is how much proof Ocheltree has to produce before a reason-
able jury could conclude that she was harassed because she was a
prude and a woman, not simply because she was a prude. Here,
Ocheltree was the only woman in a working environment with ten or
eleven males who engaged in sexual talk and behavior in order to
make her uncomfortable. Further, the majority observes that men
sometimes complained about the sexual tenor of the workplace, but
the jury heard no evidence that any conduct subsequent to these com-
plaints was intended to bother the complaining men. Nor was there
evidence that their objections or reactions were the subject of derisive
laughter in the way that Ocheltree's were. In light of these points, I
think a reasonable jury could see the harassment as rooted in male
resentment of Ocheltree's intrusion into "their" workplace and in
resentment of her demands that they clean up their act. Cf. Kathryn
Abrams, The New Jurisprudence of Sexual Harassment, 83 Cornell L.
Rev. 1169, 1211 (1998) (observing that when women enter a predom-
inantly male workplace, male workers often seek to reaffirm the dom-
inance of masculine norms in the workplace by "engag[ing] more
intensely . . . in talk that sexualizes or derogates women"). In other
words, a reasonable jury could conclude that Ocheltree was harassed
not simply because she found the sexual behavior in the workplace
offensive, but because she was a woman who found that behavior
offensive. In sum, I believe a reasonable jury could conclude that
____________________________________________________________
5
I note that the word "prudery" seems misplaced here. Prudery con-
notes an artificially refined sense of delicacy about sexual matters. A per-
son would hardly need to be prudish to find the atmosphere in
Ocheltree's workplace offensive.
30
much of the sexual banter in Ocheltree's workplace was directed at
her because of her sex.
B.
What I have just said in part I.A is sufficient by itself to support
the affirmance of Ocheltree's compensatory damages award. There is,
however, another reason why a reasonable jury could conclude that
a large part of the sexual banter in the workplace satisfied the "be-
cause of sex" prong. A reasonable jury could find that the content of
much of the banter was "particularly demeaning towards women,"
ante at 11, and therefore made Ocheltree's working environment
more hostile to her as a woman, regardless of whether the banter was
intended to bother her or was directed at her in any other way. This
means that even if I agreed with the majority that a reasonable jury
would have to find that Ocheltree was a mere bystander to the sexual
remarks in her workplace, I would still conclude that many of the
remarks could reasonably be seen as satisfying the "because of sex"
prong.
Title VII's because-of-sex requirement is most obviously satisfied
in two common scenarios: when the plaintiff is the object of
unwanted sexual advances, see, e.g., Harris v. L & L Wings, Inc., 132
F.3d 978 (4th Cir. 1997), and when the plaintiff is the target of open
hostility because of her (or his) sex, see, e.g., Smith v. First Union
Nat'l Bank, 202 F.3d 234 (4th Cir. 2000). We have never held, how-
ever, that these two scenarios exhaust the field of sex-based harass-
ment. Courts have also recognized that harassing conduct can be
"because of sex" even when the conduct "is not directed at a particular
individual or group of individuals, but is disproportionately more
offensive or demeaning to one sex." Robinson v. Jacksonville Ship-
yards, Inc., 760 F. Supp. 1486, 1522-23 (M.D. Fla. 1991). See also
Andrews v. City of Philadelphia, 895 F.2d 1469, 1486 (3d Cir. 1990)
(stating that "we do not consider it an unfair burden of an employer
of both genders to take measures to prevent an atmosphere of sexism
. . . [from pervading] the workplace"). This category of sex-based
harassment "describes behavior that creates a barrier to the progress
of women in the workplace because it conveys the message that they
do not belong, that they are welcome in the workplace only if they
will subvert their identities to the sexual stereotypes prevalent in that
31
environment. That Title VII outlaws such conduct is beyond perad-
venture." Robinson, 760 F. Supp. at 1523. In Robinson the court held
that a workplace plastered with pictures of nude and partially nude
women (often in sexually submissive postures) was a hostile environ-
ment even though the posting of the pictures "did not originate with
the intent of offending women in the workplace (because no women
worked in the jobs when the behavior began)." Id. It was enough that
the pictures had a "disproportionately demeaning impact on the
women now working" in the same environment. Id.Robinson and Andrews suggest that the majority is too quick to
conclude that none of the sexual banter in the workplace constitutes
sex-based harassment because Ocheltree "would have been exposed
to the same atmosphere had she been male." Ante at 7. Even if true,
the majority's point would still leave the question of "whether mem-
bers of one sex are exposed to disadvantageous terms or conditions
of employment to which members of the other sex are not exposed."
Harris, 510 U.S. at 25 (Ginsburg, J., concurring). In other words,
there would still be a question of whether Ocheltree's environment
was more hostile to her because of her sex than it would have been
to a man.
Although our circuit has not yet decided a case using reasoning
similar to that in Robinson and Andrews, such reasoning is a logical
extension of well-established Title VII principles. Consider, for exam-
ple, a traditionally all-male workplace in which women are routinely
referred to as "bitches," "whores," and "cunts." Surely it is uncon-
troversial that a woman employee subjected to that environment
would have a claim for sex-based harassment even if the employer
could establish that the male workers would have spoken the same
way regardless of her presence and even if the offensive words were
never said directly to her. The reason is that such "unambiguous gen-
der epithets," ante at 10, signal hostility to the presence of women in
the workplace and create an atmosphere that is inhospitable to women
because of their sex. Whether or not plastering pornographic and
quasi-pornographic pictures on the wall can be said to display outright
hostility toward women in the workplace, it can certainly be said to
evince and to perpetuate attitudes that make the workplace hostile to
women because of their sex:
32
Pornography on an employer's wall or desk communicates
a message about the way he views women, a view strikingly
at odds with the way women wish to be viewed in the work-
place. Depending upon the material in question, it may com-
municate that women should be the objects of sexual
aggression, that they are submissive slaves to male desires,
or that their most salient and desirable attributes are sexual.
Any of these images may communicate to male coworkers
that it is acceptable to view women in a predominantly sex-
ual way. All of the views to some extent detract from the
image most women in the workplace would like to project:
that of the professional, credible coworker.
Robinson, 760 F. Supp. at 1526 (quoting Kathryn Abrams, Gender
Discrimination and the Transformation of Workplace Norms, 42
Vand. L. Rev. 1183, 1212 n.118 (1989)). See also Andrews, 895 F.2d
at 1485-86 ("Obscene language and pornography quite possibly could
be regarded as highly offensive to a woman who seeks to deal with
her fellow employees and clients with professional dignity and with-
out the barrier of sexual differentiation and abuse" (internal quotation
and citation omitted)). If use of unambiguous gender epithets can con-
stitute sex-based harassment because it creates a workplace atmo-
sphere suffused with hostility to women, there is no principled reason
why a workplace suffused with depictions of women as sexual objects
could not also constitute sex-based harassment. Thus, I conclude that
a workplace environment could be abusive "because of" a plaintiff's
sex even if the environment was essentially the same both before and
after the plaintiff entered the workplace. Further, I can see no reason
why the reasoning of Robinson and Andrews should be limited to sex-
ually explicit photographs of women in the workplace. Sexual banter
in the workplace that is the aural equivalent of pornography should
surely be just as actionable as pornographic images. Here, the ques-
tion is whether a reasonable jury could conclude that any of the sexual
banter in Ocheltree's workplace was so disproportionately demeaning
to women that it should count as harassment "because of sex." This
question can only be answered by considering the content and context
of the banter in question.
Although my reasoning is different, I agree with the majority that
much of the sexual talk Ocheltree heard — vulgar though it may be
33
— cannot be seen as disproportionately demeaning to women. Fre-
quent use of such words as "fuck," "dickhead," and "ass" may be
unprofessional and offensive, but I cannot say that a working environ-
ment permeated by such language is more offensive to women
because of their sex than it is to men. Similarly, frequent exchanges
of mock homosexual taunting (for example, male coworkers pointing
to their genitals and telling other males to "suck it," J.A. 113) would
be distasteful to most women (and, I believe, to most men), but they
would not necessarily make the work environment more hostile to
women because of their sex.6 Ocheltree's coworkers' constant
descriptions of their sexual exploits, including their near-obsessive
interest in discussions of oral sex, are another matter altogether. Obvi-
ously, discussions of sexual matters (including discussions of oral
sex) are not automatically demeaning to women. See Vicki Schultz,
Reconceptualizing Sexual Harassment, 107 Yale L.J. 1683, 1795
(1998) (citing research suggesting that "where men and women work
alongside each other in balanced numbers . . . . sexual talk and joking
occurs with frequency, but is not experienced as harassment"). But
the tone of the discussions in the production shop was hardly one of
mutuality and respect. See supra at 26 (recounting daily remarks by
Ocheltree's coworkers along the lines of "she gave good head," "she
likes to swallow," "she likes it from behind," etc.). Comments like
these portray women as sexually subordinate to men; indeed, it is not
too strong to say that the overall tenor of the workplace banter con-
veyed the message that women exist primarily to gratify male desires
for oral sex. A reasonable woman would find this message offensive,
to say the least. Further, the comments were far too graphic and fre-
quent to be dismissed as "occasional vulgar banter, tinged with sexual
innuendo." Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th
Cir. 1997) (internal quotation marks and citation omitted). Instead,
they are instances of sexual harassment because they express and
reinforce a regime of gender hierarchy in which men are portrayed as
sexual subjects while women are portrayed as sexual objects. See gen-
erally Abrams, The New Jurisprudence, supra at 1205-25; Katherine
M. Franke, What's Wrong with Sexual Harassment?, 49 Stanford L.
____________________________________________________________
6
I would add, however, that such language could be sex-based harass-
ment in the proper context — if, for example, it was used as part of a
general campaign to create a sexually explicit atmosphere in the work-
place in order to drive out women employees.
34
Rev. 691, 762-72 (1997). It is true, as Scollon Productions points out,
that Ocheltree's coworkers did not proposition her or speculate about
her sexual habits. But this is hardly dispositive. See, e.g., Jackson v.
Quanex Corp., 191 F.3d 647, 660 (6th Cir. 1999) (stating that "offen-
sive comments need not be directed at a plaintiff in order to constitute
conduct violating Title VII"). When a workplace is suffused with rep-
resentations of women as sexual objects, a woman in that workplace
would doubtless wonder whether the primary questions about her in
the minds of her coworkers involved such matters as whether she
"swallows" or whether she could "suck a golf ball through a garden
hose." The demeaning portrayals of women as sexual objects in
Ocheltree's workplace constituted sex-based harassment because they
made the working environment more hostile to Ocheltree than to her
coworkers precisely because she was a woman. That is enough to sat-
isfy Title VII's "because of sex" prong, for the "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." Harris, 510 U.S. at 25 (Ginsburg, J., concurring).
I would hold, then, that a reasonable jury could conclude that the
pervasive workplace comments depicting women as sexually subordi-
nate to men constitute harassment "because of sex." These comments
are indistinguishable in principle from the harassment discussed in
Robinson because they are "disproportionately. . . offensive or
demeaning to one sex." Robinson, 760 F. Supp. at 1522-23.
C.
The majority mounts a strident attack on this last conclusion, and
the attack boils down to three basic arguments. First, the majority
argues that my position is incompatible with Supreme Court and cir-
cuit precedent regarding the "because of sex" requirement. Second,
the majority asserts that my arguments depend on the untenable prop-
osition that all sexual comments in the workplace are "disproportion-
ately demeaning to women." Third, the majority argues that under our
decision in Lack v. Wal-Mart Stores, Inc., 240 F.3d 255 (4th Cir.
2001), Ocheltree did not experience sex-based harassment because
the production shop environment was also offensive to men. I will
address each argument in turn.
35
First, according to the majority, it is well established that harassing
conduct can only be "because of sex" if the plaintiff's gender is the
"but for" cause of the harassment or the harassment is motivated by
the plaintiff's gender. The majority therefore concludes that the com-
ments and conduct on which I rely cannot constitute harassment "be-
cause of sex" because "Ocheltree would have been exposed to the
same atmosphere had she been male." Ante at 7. I acknowledge that
courts regularly explain the "because of sex" requirement by using the
formulations favored by the majority, and in many contexts these for-
mulations are helpful analytically. I believe, however, that the "be-
cause of sex" requirement allows for more interpretive flexibility than
the majority recognizes. Cf. David S. Schwartz, When Is Sex Because
of Sex? The Causation Problem in Sexual Harassment Law, 150 U.
Pa. L. Rev. 1697, 1781 (2002) (suggesting that "`because of' does not
necessarily mean `motivated by'"). Indeed, I believe this flexibility is
inherent in Oncale's formulation of the "because of sex" requirement
as turning on the question of "whether members of one sex are
exposed to disadvantageous terms or conditions of employment to
which members of the other sex are not exposed." Oncale, 523 U.S.
at 80 (quoting Harris, 510 U.S. at 25 (Ginsburg, J., concurring)). As
the majority would no doubt observe, there is a sense in which both
male and female workers were exposed to the same environment at
Scollon Productions because the explicit discussions of oral sex and
similar matters were heard by both Ocheltree and her male coworkers.
Yet there is an equally obvious sense in which women in an atmo-
sphere saturated with remarks demeaning to women are "exposed to
disadvantageous terms or conditions of employment to which mem-
bers of the other sex are not exposed" precisely because the language
heard by both women and men is more demeaning to women than to
men. It is this understanding that I rely upon in suggesting that the
workplace comments portraying women as sexually subordinate to
men qualify as harassment "because of sex."
By reasoning that harassment cannot be "because of sex" if the
plaintiff "would have been exposed to the same atmosphere had she
been male," the majority appears to commit this court to a course that
is clearly wrong. Suppose, for example, that an African-American
plaintiff brings a race discrimination claim alleging a hostile work
environment due to his coworkers' daily use of the meanest racial slur
against African-Americans. Suppose further that the workplace had
36
previously been all white and that the pattern of racial slurs was the
same both before and after the plaintiff's arrival. The majority's rea-
soning suggests that if the employer could show that none of the
racial slurs were directed at the plaintiff and that he would have been
exposed to exactly the same language if he had been white, the
harassment in this example could not be "because of race." Yet I find
it difficult to believe that any court would fail to find race-based
harassment on these facts. If the right to be free from a racially hostile
work environment means anything at all, surely it includes the right
to be free from a workplace environment permeated by racial slurs.
See Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th Cir.
2001) ("Evidence of a general work atmosphere therefore — as well
as evidence of specific hostility directed toward the plaintiff — is an
important factor in evaluating [a hostile environment] claim." (quot-
ing Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415 (10th Cir.
1987))). I do not see how Oncale could compel a different conclusion.
My explanation for this is simple: the plaintiff in my example suffers
discrimination "because of race" because he is exposed to disadvanta-
geous conditions of employment to which his white coworkers are not
exposed. The workplace is therefore more hostile to him precisely
because he is black. My example shows, I believe, that harassment
can be "because of race" even if the plaintiff would have been
exposed to the same atmosphere had he been white. If this is true,
harassment can also be "because of sex" even if the plaintiff would
have been exposed to the same atmosphere had she been male.
In further support of its first argument, the majority makes the
interesting suggestion that my approach to the "because of sex"
requirement wrongly attempts to apply disparate impact models of
proof to sexual harassment claims. It is important to see why this is
not so. As Professor Schwartz points out, disparate impact theory is
designed to address "facially neutral employment practices that have
a disparate impact (such as testing instruments or height-weight
requirements) but that might be defensible under some degree of busi-
ness necessity." Schwartz, supra at 1773. Workplace conversations
depicting women as sexually subordinate to men, on the other hand,
are not facially neutral and they have no business justification. When
women are characterized in this way, it is wrong to suggest that
offense to women in the workplace is a "potential unintended effects"
of the characterizations. Ante at 13. Instead, such characterizations
37
constitute sexual harassment because they convey the message that
women are, and should be, subordinate to men.
The majority's second argument is that under my proposed defini-
tion of sex-based harassment, any discussion of sex in the workplace
constitutes sexual harassment because such discussions are necessar-
ily more demeaning to women than to men. See ante at 16 (stating
that my reasoning would mean that "conversations between males
about their heterosexual activities in the presence of a female virtually
always constitute sex-based harassment because, according to [my]
characterization, these conversations depict women as `sexually sub-
ordinate to men'"); ante at 17 n.12 (stating that I propose "a rule
whereby a reviewing court would affirm a finding of gender-based
discrimination once a certain number of conversations about hetero-
sexual behavior occur in the workplace in the presence of a female").
The majority observes that the rule it attributes to me would stand in
some tension with the Supreme Court's observation in Oncale that it
has "never held that workplace harassment, even harassment between
men and women, is automatically discrimination because of sex
merely because the words used have sexual content or connotations."
Oncale, 523 U.S. at 80. Further, the majority implies that I am igno-
rant of the "feminist literature" suggesting that "working women can
be, and usually are, as comfortable as are men with sexually explicit
conduct and conversations." Ante at 18. Indeed, my views are "pater-
nalistic," ante at 18 and 20, rely on "outdated stereotypes," ante at 18,
and attempt to transform Title VII into a "neo-Victorian chivalry code
designed to protect what [I] imagine[ ] to be the tender sensitivities
of contemporary women," ante at 20. See also ante at 17 n.12 (stating
that under my approach "Title VII would become a workplace code
for `gentlemanly conduct' in the presence of women").
My first response to all of this upbraiding is that if I actually held
the views attributed to me by the majority, the substance of its criti-
cisms would be largely justified. It would, of course, be absurd for me
to contend that all discussions of sex — regardless of their specific
content — are automatically degrading and offensive to women. I am
well aware of feminist criticisms of the idea that sex equals sexism
in the workplace. See, e.g., Franke, supra at 714-25. To make the
point once more, I do not claim that all discussions of sexual matters
in the workplace are automatically demeaning to women or that work-
38
place sexual discussions are always more offensive to women than to
men. Instead, I claim that Ocheltree's coworkers' constant, graphic
descriptions of oral sex and other sexual practices could be seen by
a reasonable jury as sex-based harassment because they portray
women as sexually subordinate to men and thereby serve to perpetu-
ate gender hierarchies in the workplace. It is the specific content of
these descriptions ("she gave good head," "she swallows," etc.), and
not simply their sexual nature, that qualifies them as harassment "be-
cause of sex." This is one of the reasons why I have found it neces-
sary to set out Ocheltree's evidence about the atmosphere in the
production shop in explicit detail.7 In short, the majority's second
argument simply attacks a straw man.8
The majority's third argument is that under our decision in Lack,
Ocheltree's sexual harassment claim must fail because some men
complained about the work environment in the production shop. See
ante at 9 (quoting Lack's statement that the plaintiff's claim was "un-
dercut[ ] . . . to a substantial extent" by the "fact that female employ-
ees . . . lodged similar complaints" against the male plaintiff's
____________________________________________________________
7
In further response to the majority's charge that I have relied "upon
the shock value of the salacious conduct" of Ocheltree's coworkers, ante
at 12, I would add this: if we are going to overturn a jury verdict that so
strongly favored Ocheltree, we ought at least to present the evidence in
a way that gives some insight into why the jury might have reached the
conclusions it did.
8
I also add two comments about the majority's efforts to tag me as
paternalistic and neo-Victorian. First, if one of the majority's goals is to
avoid paternalism in the Title VII field, that goal would be better served
by focusing on whether the sexual talk was welcome or unwelcome than
by adopting an unduly narrow reading of the "because of sex" require-
ment. Cf. Schwartz, supra at 1756-58. Second, if there is anything neo-
Victorian lurking in the opinions released today, it is the majority's sug-
gestion that Ocheltree's claim should fail because "the offensive conduct
[here] took place in a costume production shop where public access is
controlled, not a church office, retail shop, bank, or professional office."
Ante at 17. In other words, women in blue collar jobs must put up with
conduct that women who work in banks or professional offices need not
tolerate. Cf. Williams v. Gen. Motors Corp., 187 F.3d 553, 564 (6th Cir.
1999) ("Surely women working in the trades do not deserve less protec-
tion from the law than women working in a courthouse.").
39
supervisor).9 Lack should not be read as broadly as the majority sug-
gests. The statement the majority takes from Lack was made in the
context of examining whether the male plaintiff had offered direct
comparative evidence about how his alleged harasser (a male supervi-
sor) treated both men and women in the workplace. See Lack, 240
F.3d at 262; cf. Oncale, 523 U.S. at 80-81 (observing that harassing
conduct that would not otherwise qualify as sex based can be shown
to constitute discrimination "because of sex" through the use of "di-
rect comparative evidence about how the alleged harasser treated
members of both sexes in a mixed-sex workplace"). My argument
here does not rely on comparative evidence. Instead, I am claiming
that workplace comments portraying women as sexually subordinate
to men satisfy the "because of sex" requirement because they express
and reinforce gender hierarchy in the workplace. Such comments are,
in this respect, analogous to Oncale's "sex-specific and derogatory
terms" that signal "hostility to the presence of women in the work-
place." Oncale, 523 U.S. at 80. If this theory is correct — and I recog-
nize, of course, that the majority rejects it — I do not see how
Ocheltree's claims can be defeated simply by observing that some
men at Scollon Productions also complained about the sexual conduct
in the production area.10 The Second Circuit has explained that harass-
ment of a woman can be sex based if she is "abused in ways that can-
not be explained without reference to her sex, notwithstanding the
fact that a man received treatment at least as harsh, though for other
— non-sexual — reasons." See Brown, 257 F.3d at 254. Along the
____________________________________________________________
9
The majority claims that Ocheltree "conceded that the [sexual] con-
duct [in the production shop] was equally offensive both to men and
women." Ante at 9. I do not believe the record supports this characteriza-
tion. So far as I can tell, Ocheltree simply acknowledged that some of her
male coworkers also voiced some complaints about sexual conduct in the
production shop. This does not amount to a concession that men were
equally offended. Cf. Brown v. Henderson, 257 F.3d 246, 254 (2nd Cir.
2001) (stating that discrimination can be sex based if "a co-worker or
supervisor treats both men and women badly, but women worse").
10
The majority is not specific about the subject of the men's com-
plaints, but I assume the majority's point is that some men in the produc-
tion shop were offended by taunting from male coworkers that included
explicit or implicit references to homosexuality (men pointing to their
genitals and telling other men to "suck it," etc.).
40
same lines, our analysis in Lack seems to indicate that the sexual con-
duct complained of by some of Ocheltree's male coworkers here
would not constitute harassment of them "because of sex." See Lack,
240 F.3d at 261 n.8 (noting that "when expressions such as `fuck me'
. . . are used by men speaking to other men, often`their use has no
connection whatsoever with the sexual acts to which they make refer-
ence'" (quoting Johnson v. Hondo, Inc., 125 F.3d 408, 412 (7th Cir.
1997))). It follows that if I am right in my basic contention that the
workplace comments depicting women as sexually subordinate to
men could be regarded by a reasonable jury as discrimination "be-
cause of sex," the fact that some male coworkers were also offended
by the comments does not undermine Ocheltree's case.
D.
Because I would hold that much of the sexual discussion in
Ocheltree's workplace constituted sex-based harassment, my
approach to the "severe or pervasive" prong of the hostile environ-
ment analysis is quite different than the majority's. For me, the proper
question is whether a reasonable jury could find that, taken together,
the vulgar song, the various mannequin incidents, and the workplace
banter involving degrading descriptions of female sexuality were suf-
ficiently severe or pervasive to alter the conditions of Ocheltree's
employment and to create an abusive work environment. There is no
question that Ocheltree subjectively perceived the production shop
environment as hostile. In deciding whether a jury could also reason-
ably conclude that the environment was objectively hostile (hostile to
"a reasonable person in the plaintiff's position," Oncale, 523 U.S. at
82), we are required to consider "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 per-
formance." Harris, 510 U.S. at 23. The Supreme Court has empha-
sized that an abusive work environment need not "lead[ ] to a nervous
breakdown." Id. at 22. It is enough if the environment "detract[s] from
employees' job performance, discourage[s] employees from remain-
ing on the job, or keep[s] them from advancing in their careers." Id.Applying these standards here, I readily conclude that a reasonable
jury that fully credited Ocheltree's evidence could find that a reason-
able person in her circumstances would experience the work environ-
41
ment as abusive. Ocheltree and Hodge both testified that the explicit
and degrading discussions of oral sex and related matters took place
on a daily basis. While the relentless sexual remarks were not physi-
cally threatening, they were humiliating to women generally and
highly offensive to Ocheltree. They surely made it more difficult for
her to do her job.
E.
My primary objection to the majority opinion is that it has turned
the "because of sex" requirement into an obstacle where it had not
been an obstacle before, thereby making it more difficult to establish
a sexual harassment claim. I have an additional point, however. There
appears to be a profound difference in our respective approaches to
reviewing a jury verdict. Again and again, the majority characterizes
the evidence in a light more favorable to Scollon Productions than to
Ocheltree. This reaches its apex when the majority suggests that there
is "substantial evidence" that Ocheltree's own offensive conduct con-
tributed to the coarse atmosphere in the production shop. See ante at
19-20. Ocheltree specifically denied the vulgar activity attributed to
her by the majority, J.A. 147-48, and the jury believed her. Indeed,
it appears that the jury believed virtually everything that Ocheltree
and her witnesses said and dismissed the testimony of Scollon Pro-
ductions' witnesses as unworthy of belief. That was the jury's prerog-
ative, and we are bound to respect it.
***
For all of these reasons, I respectfully dissent from the majority's
holding that the evidence presented at trial was insufficient to support
the jury's decision that Ocheltree was subjected to a hostile environ-
ment because of her sex.
II.
This conclusion makes it necessary for me to indicate, albeit
briefly, how I would resolve the questions in this case that the major-
ity has no need to reach. On the question of whether liability for the
hostile work environment could be properly imputed to Scollon Pro-
42
ductions, I conclude that a reasonable jury could find that the com-
pany had constructive knowledge of the harassment because it failed
to establish adequate procedures for receiving sexual harassment
complaints. Accordingly, I would affirm the jury's modest award of
compensatory damages to Ocheltree. I concur in the majority's judg-
ment reversing the award of punitive damages because Ocheltree
failed to produce evidence that would allow a reasonable jury to con-
clude that any Scollon Productions employee "discriminated in the
face of a known risk that his conduct [would] violate federal law."
Anderson, 281 F.3d at 460.
43