IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _______________________ No. 05-1714 _______________________ RANDY L. GREENE, Plaintiff-Appellant, v. A. DUIE PYLE, INC. Defendant-Appellee. _______________________________________________ On Appeal from the United States District Court for the District of Maryland _______________________________________________ BRIEF OF THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT RANDY L. GREENE AND REVERSAL _______________________________________________ JAMES L. LEE Deputy General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JULIE L. GANTZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7032 Washington, DC 20507 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE CASE 1. Proceedings . . . . . . . . . . . . . . . . . . . . . .2 2. Statement of Facts. . . . . . . . . . . . . . . . . . .3 3. District Court Decision . . . . . . . . . . . . . . . 11 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 13 ARGUMENT AN EMPLOYEE IS PROTECTED BY § 704(a) WHEN HE COMPLAINS TO MANAGEMENT ABOUT SEXUALLY EXPLICIT AND SEXIST MATERIALS AND CONDUCT THAT, IF REPEATED OFTEN ENOUGH, WOULD CONSTITUTE A HOSTILE WORK ENVIRONMENT IN VIOLATION OF § 703(a). . . . . . . 14 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Alexander v. Gerhardt Enters., Inc., 40 F.3d 187 (7th Cir. 1994) . . .23 Breeden v. Clark County Sch. Dist., 232 F.3d 893, 2000 WL 991821 (July 19, 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . .25 Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) . . . . .21, 22 Carter v. Rosenberg & Estis, P.C., No. 95-10439, 1998 WL 150491 (S.D.N.Y. Mar. 31, 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . .24 Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001) . . . . .25, 26 Dailey v. Park Place Airport Parking, L.L.C., No. 4:99CV0403, 2000 WL 641203 (E.D. Mo. May 16, 2000) . . . . . . . . . . . . . . . . . . . . .19 De Kwiatkowski v. Bear, Stearns & Co., 306 F.3d 1293 (2d Cir. 2002) .20 Distasio v. Perkin Elmer Corp., 157 F.3d 55 (2d Cir. 1998) . . . . . .19 EEOC v. HBE Corp., 135 F.3d 543 (8th Cir. 1998) . . . . . . . . . . .18 Faragher v City of Boca Raton, 524 U.S. 775 (1998) . . . . . .19, 22, 23 Foster v. Time Warner Entm't. Co., 250 F.3d 1189 (8th Cir. 2001) . . .18 Goos v. Nat'l Ass'n of Realtors, 715 F. Supp. 2 (D.D.C. 1989) . . . .18 Haugerud v. Amery Sch. Dist., 259 F.3d 678 (7th Cir. 2001) . . . . . .20 Moyo v. Gomez, 40 F.3d 982 (9th Cir. 1994) . . . . . . . . . . . . . .24 Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). . . . .14, 15 O'Rourke v. City of Providence, 235 F.3d 713 (1st Cir. 2001) . . . . .15 Peters v. Jenney, 327 F.3d 307 (4th Cir. 2003) . . . . . . . . . . . .16 Reed v. A. W. Lawrence & Co., 95 F.3d 1170 (2d Cir. 1996) . . . . . .24 Schwabacher v. U.S., 334 U.S. 182 (1948) . . . . . . . . . . . . . . .18 Swentek v. USAIR, Inc., 830 F.2d 552 (4th Cir. 1987) . . . . . . . . .20 Truesdale v. Moore, 142 F.3d 749 (4th Cir. 1998) . . . . . . . . . .17 Van Dusen v. Barrack, 376 U.S. 612 (1964) . . . . . . . . . . . . . .18 STATUTES AND REGULATIONS 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. § 1343(a)(4) . . . . . . . . . . . . . . . . . . . . . . . 2 Title VII of the Civil Rights Act of 1964 § 703(a), 42 U.S.C. § 2000e-2(a) . . . . . . . . . . . . . . . .14 § 704(a), 42 U.S.C. § 2000e-3(a) . . . . . . . . . . . . . .passim 29 C.F.R. §1604.11(f) . . . . . . . . . . . . . . . . . . . . . . . .20 MISCELLANEOUS EEOC, Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, 8 Fair Empl. Prac. Manual 405:7651 (adopted June 18, 1999). . . . . . . . . . . . . . . . . . . . . . . .20 STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency established by Congress to interpret, administer and enforce Title VII of the Civil Rights Act of 1964 and other federal laws prohibiting employment discrimination. Each of the laws enforced by the Commission also makes it unlawful for a covered employer to retaliate against persons for opposing conduct that they believe violates these laws. The anti-discrimination laws rely heavily on victims of discrimination for their enforcement: employees experiencing discrimination are expected to complain to management, file charges with the Commission, and bring private lawsuits to enforce their rights. The prohibitions against retaliation are therefore central to achieving the purposes of the laws. If retaliation were permitted, employees would not expose and oppose unlawful discriminatory activity, and the statutes' purposes would go unfulfilled. Determining what employee activity is protected against retaliation can be particularly difficult when the conduct the employee is protesting contributes to an unlawful hostile environment but may or may not have become actionable on the day the individual complains. Because this case addresses that significant issue, the Commission offers its views to the Court. STATEMENT OF JURISDICTION The district court had subject matter jurisdiction over Greene's Title VII claims pursuant to 28 U.S.C. §§ 1331 and 1343(a)(4). The district court entered an opinion on May 31, 2005, dismissing Greene's claims, and an order the same day entering judgment in favor of the defendant. Joint Appendix ("J.A.") 612, 619, 620. Greene filed a timely notice of appeal on June 21, 2005. R.26.<1> This court has appellate jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUE Whether an employee is protected from retaliation by § 704(a) of Title VII when he complains to management about sexually explicit materials and conduct in the workplace that, if repeated often enough, would constitute a hostile work environment in violation of § 703(a). STATEMENT OF THE CASE 1. Proceedings The plaintiff filed suit on May 28, 2004, alleging in his complaint that the defendant violated Title VII by condoning a sexually hostile work environment at the terminal where he worked. J.A.5 (Complaint ¶¶ 5-6). The complaint also alleges that the plaintiff was fired in retaliation for complaining about the sexually offensive work environment. Id. (Complaint ¶ 7). On May 31, 2005, the district court granted the defendant's motion for summary judgment dismissing both claims. J.A.612, 619. 2. Statement of Facts Randy Greene was hired by A. Duie Pyle, Inc. as a truck driver in March 2001. J.A.46. After completing a training period at the West Chester terminal, he worked at the newly opened York, Pennsylvania terminal from July 2001 to April 2002. J.A.49. Greene testified that he encountered sexually explicit and sexist materials at the York terminal beginning in October 2001. Greene defined "sexually explicit" as "[b]are breasted women. Naked full body pictures of women in sexually explicit positions. . . .They were naked and bent over." J.A.198, 199. He recounted that he saw Playboy and Penthouse magazines in the cafeteria. J.A.122, 127. Greene testified that "[t]here was sexually offensive material that was hung on the bulletin board in the terminal and everybody saw it. There [sic] would be left near the time clock area where everybody would see it, including the women at our terminal. . . ." J.A.124, 128. Jeffrey Wood, a former employee at the York terminal, stated that he saw sexually explicit magazines such as Maxim and FHM in the dispatch area and in the conference area of the terminal. J.A.554-55. Wood noted that women employees used these areas. J.A.555. Wood stated that male employees at the York terminal shared and traded these magazines and that coworkers had shown him pictures from these magazines. J.A.561. Greene testified that he was also disturbed by sexually explicit jokes and cartoons faxed or e-mailed to the terminal and then displayed in common areas. When Greene was asked during his deposition what he had seen hanging by the time clock, he stated, "Everything. There would be sexually explicit jokes, faxes, e-mails. It was just about anything that people would leave, because they thought it was funny." J.A.126. Greene testified that, although he saw the sexually explicit magazines less frequently, "the e-mails and faxes were on a continuous basis." J.A.127. Greene testified that he found at least fifteen offensive e-mails and faxes posted by the time clock and at the dispatch area. J.A.129, 132. Greene recalled that one pictured "an old man in a guillotine with his penis attached to, like a pulley with a weight on it, and it was a naked woman that he was staring at and I didn't understand the picture, but that is what it was. A cartoon drawing and those type of things were out several times. It was on the bulletin board or by the time clock." J.A.129. Greene stated that he was unable to recall other examples because he would not look closely at the offending item before throwing it away. J.A.130. Greene testified generally that "[t]hey would show pictures of women and breasts and jokes. There would be a joke underneath. It would show a man and his penis and a joke under that." J.A.228. Greene testified that it was impossible to avoid these materials. "Sometimes they were left at the time clock and everybody had to punch in. So, if it was there, you read it. You couldn't miss it, it was right there." J.A.131-32. Greene testified that he was concerned by the fact that there were women in the area who might see these materials. J.A.133, 136. Greene also testified that Gene Hart, the Operations Manager at the York terminal, would make sexually explicit comments. J.A.120. According to Greene, "[h]e would tell jokes and it didn't matter what it was about and he would say the joke and he didn't care who it was around." Id. Wood recalled that Hart would pull up a female employee's picture on the computer and tell other male employees to "check them out." J.A.560-61. Hart would make comments such as "check out some of the girls in the office . . . check that ass out or look at that ass or I wonder what that would be like, meaning sexual." Id. Wood testified that "from time to time," Terminal Manager Eric McVeigh would also comment on a female employee's body. J.A.558-59. Wood also testified that he heard sexually explicit language and jokes told in the workplace and that such language was common and agreed that it occurred daily. J.A.555-57. Additionally, he stated that he had seen material printed from a computer at the terminal with sexual content. J.A.555-56. Wood stated in his deposition that management participated and nothing was done about it. J.A.557, 560. Greene reported the presence of the magazines and jokes he deemed offensive. On April 5, 2002, Greene drove to the West Chester terminal to complain to Human Resources Director Tom Chambers about the sexually explicit magazines being left around the terminal and about other sexually explicit materials he had come across in the workplace. Greene stated, "I put everything on the table to Tom Chambers, what offended me, the material that was brought, the e-mails and faxes and different areas that magazines were distributed or displayed in the York terminal. I told them [sic] about the jokes and everything that Gene Hart would say. I explained to him the different areas in which this would happen and at that time, he assured me that Eric [McVeigh] or Gene [Hart] would not retaliate against me and he asked if he could use the information I shared with him with Eric McVeigh and he had a meeting with me on that evening. But yes, it was a sexually offensive environment." J.A.121-22. According to Chambers' meeting notes, "Randy commented that he had found a magazine in the terminal that he considered to be ‘pornographic' and that such material shouldn't be in the terminal since women work there and they might be offended." J.A.289. Chambers recounted in his notes that, "I told Randy that I can agree that nothing of that nature should be left around for others to see and that such material in the workplace is never condoned by the Company, or by me personally. I didn't see the material that Randy thought was ‘pornographic' in nature, so I was not able to judge for myself the content of it . . . ." Id. According to Greene, Chambers told him that such material "isn't allowed" in the workplace, and that Greene would be protected from retaliation connected to his complaint. J.A.155. Chambers told Greene that he would discuss their meeting with McVeigh. J.A.289. After Chambers informed McVeigh of Greene's complaint, McVeigh told Greene that there was no problem with sexual harassment at the York terminal. J.A.164. According to Greene, McVeigh stated, "I see magazines in here all of the time. I just throw them away. I see stuff on the walls and I just throw them away. . . . I can't police every little thing that goes on around here and I am not going to do it." Id. He also stated, "if you have a problem with pornography or profanity, it is your problem. It is a perception problem, which somethings [sic] aren't pornography or profanity to other people, but it may be to you." J.A.141; see also J.A.164-65 (recalling that McVeigh told him that "[t]hese magazines you see around here, they are nothing more than pin-ups to these guys . . . . It's a morale issue with me."). Nonetheless, Greene testified that McVeigh "made me promise that if I saw anything that was inappropriate, to bring it to his attention that could be offensive to anybody." J.A.141, 165. Greene testified that during the second week of April 2002, another driver showed him a picture of a naked woman with a fish, and was showing the photograph to "everyone he could" at the terminal. J.A.107-08. In the picture, the woman "was completely naked, bare breasted, holding a fish." J.A.137. Greene testified that he did not complain to management about this photograph because after Greene told Chambers about McVeigh's reaction to his April 5th complaint, "Tom really didn't want to hear anything I said. . . . He was very short with me and he just—I was afraid to talk to him." J.A.138. On April 25, 2002, Green found a list of jokes in the driver's room by the time clock. J.A.188-89. The list was an e-mail message printed off a computer with the heading: "For Men Tired of Receiving Male-Bashing Jokes." J.A.287. Jokes on the list include: "How many men does it take to open a beer? None. It should be opened by the time she brings it." "Why do women have smaller feet than men? It's one of those ‘evolutionary things' that allows them to stand closer to the kitchen sink." "How do you know when a woman is about to say something smart? When she starts her sentence with ‘A man once told me . . . .'" "If your dog is barking at the back door and your wife is yelling at the front door, who do you let in first? The dog, of course. He'll shut up once you let him in." "What's worse than a Male Chauvinist Pig? A woman who won't do what she's told." J.A.516-17. Greene brought the list to McVeigh, reminded him that McVeigh had told him to bring objectionable materials to his attention, and stated that this type of material did not belong in a mixed office. J.A.191. According to Greene, McVeigh said he did not have a problem with the joke list and accused him of trying to cause trouble. Id. When Greene reiterated that these jokes were improper in a mixed office, McVeigh stated that he tried to tell Greene that the matter was resolved but "he would not listen. At this point . . . . I told Randy that we would be parting ways" and "that he was going to be terminated." J.A.514 (4/25/05 Notes). Greene testified that McVeigh said he did not have to give him a reason for terminating him and would not give him a reason. J.A.192. Greene grabbed the joke list and abruptly left McVeigh's office. J.A.192, J.A.514. The company subsequently asserted that Greene was fired for being argumentative and because of "his inability to move forward after issues were discussed and addressed by management." J.A.9 (EEOC Determination Letter). Pyle has a sexual harassment policy posted next to the check-in area for drivers that reads, in relevant part: "Offensive conduct or harassment of a sexual nature . . . is prohibited. This may include, but is not limited to: (1) Offensive physical actions written or spoken language and graphic communications . . . . (4) Slurs, jokes, posters, cartoons and gestures that are offensive." J.A.297 (Harassment Policy at 1, Section III A(1) & (4)). The policy further states, "Any such offensive conduct will be considered a prohibited form of harassment when any of the following are true: . . . . (3) A third party is offended by the sexual conduct or communications of others." Id. (Section III B(3)). The policy also contains a reporting requirement as follows: "Anyone who feels he or she is being harassed is required to report it immediately." J.A.298 (Section V) (emphasis original). The policy contains an anti-retaliation provision which states: "Complaints made in good faith will in no way be held against an employee. Under no circumstances will an employee be penalized for reporting what they believe to be harassment under this policy." Id. (Section VI). Greene received a copy of the policy in a package of new employee materials, but does not recall seeing it at the time. J.A.52. In April 2002, after complaining to Chambers "about the explicit material throughout the terminal," Greene reviewed the posted policy. J.A.146, 148. Greene testified that he followed the sexual harassment policy and McVeigh's instruction in bringing offensive material to his attention. J.A.232. Greene filed a charge with the EEOC alleging sex discrimination and retaliation. On September 20, 2003, the EEOC issued a determination letter finding cause to believe that Greene's charge was true. J.A.8-10. Greene filed suit on May 28, 2004, alleging in his complaint that the defendant's "failure to stop the overt ongoing dissemination of sexually explicit printed jokes in Defendant's workplace, the display of offensive materials in at least one area which all employees must use, and trading of sexually and racially offensive magazines and printed jokes in Defendant's workplace" reported by Greene violated Title VII. J.A.5. Greene also alleged that he was fired in retaliation for complaining about the sexually offensive work environment. Id. The defendant moved for summary judgment on both claims; Greene filed a cross-motion for summary judgment on the retaliation claim. 3. District Court Decision The district court granted Pyle's motion for summary judgment and denied Greene's. J.A.612. Regarding Greene's hostile work environment claim, the court concluded that the workplace at the Pyle terminal was not "the type of ‘hellish' workplace against which Title VII was enacted to protect." J.A.616 (quoting "hellish" standard articulated in Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir. 1995)). Comparing the evidence in this case to the evidence that was held to constitute a hostile work environment in Robinson v. Jacksonville Shipyards, Inc., 769 F. Supp. 1486 (M.D. Fla. 1991), the court noted that Greene observed sexually offensive magazines on only three occasions, explicit photos were not posted on the walls, and there was no evidence that the magazines at the terminal were a common topic of conversation. Id. The court stated that, "[w]hile reasonable people would agree that the jokes [Greene complained about] are in poor taste, they are not objectively offensive." J.A.617. The court added, "[l]ike the joke list, [the magazines observed by Greene] strain the limits of good taste, but reasonable people could not find that the sporadic observation of such magazines objectively offensive." Id. The court recognized that Greene also complained that Pyle supervisors made sexually suggestive comments about female employees and that such comments could potentially support a hostile work environment claim, but concluded that these comments did not "meet the standard of objective severity and pervasiveness" because the evidence indicated that such sexually suggestive comments about women employees were made only "from time to time." Id. According to the court, the workplace Greene described is only "crude" and not "the hellish environment against which Title VII protects." Id. The court stated that Greene pointed to "only a few examples of objectively unreasonable conduct," none of which "were accompanied by aggravating factors such as a public audience for his embarrassment, extended discussions of the inappropriate materials by other workers, or physical threats or humiliation." J.A.617-18. Regarding Greene's retaliation claim, the court stated that because there was clearly an adverse employment action and a causal link between Greene's activity and his termination, the only question was whether Greene engaged in protected activity. J.A.618. The court recognized that, even if Greene could not make out a hostile work environment claim, he could maintain a retaliation claim if he can show both that he subjectively believed that Pyle was violating Title VII and that his subjective belief was objectively reasonable in light of the facts. Id. The court did not decide whether Greene subjectively believed Pyle was violating Title VII by its failure to remedy the offensive materials in the workplace because it concluded that any such belief would not be objectively reasonable. J.A.618-19. The court ruled that "a handful of observations of lewd magazines as well as occasional receipt or observation of inappropriate jokes or drawings over the course of seven months of employment at a trucking terminal" was not sufficiently offensive "to create a reasonably objective belief that a workplace meets the severe and pervasive standard." J.A.619. In particular, the court noted that the complaint that led directly to Pyle's retaliatory conduct was just the type of gender-related joking that the Supreme Court has held that Title VII was not designed to reach." Id. (citing Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)). SUMMARY OF ARGUMENT In granting the defendant's motion for summary judgment on Greene's retaliation claim, the district court relied on an unduly narrow definition of the statutory term "oppose" in § 704(a). One "opposes" a sexually hostile work environment not only by protesting it after it occurs, but also by trying to prevent it from occurring. This construction of § 704(a) accords with the Supreme Court's emphasis on one of the primary purposes behind Title VII: preventing gender discrimination and sexually hostile environments from occurring. Employers have a duty to prevent hostile environments from occurring, and they cannot do that unless employees alert them to sexually explicit materials or conduct of the kind alleged in this case. Such conduct, if repeated often enough, will create an unlawful hostile work environment. Employees informing management about such offensive conduct are thus furthering the purposes of Title VII—by helping their employers comply with the Act—and their complaints should therefore be deemed protected activity under § 704(a). ARGUMENT AN EMPLOYEE IS PROTECTED BY § 704(a) WHEN HE COMPLAINS TO MANAGEMENT ABOUT SEXUALLY EXPLICIT AND SEXIST MATERIALS AND CONDUCT THAT, IF REPEATED OFTEN ENOUGH, WOULD CONSTITUTE A HOSTILE WORK ENVIRONMENT IN VIOLATION OF § 703(a). An actionable hostile work environment, which violates §703(a) of Title VII, is created "[w]hen the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult' that is ‘sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). The Supreme Court has repeatedly admonished courts to consider "all the circumstances" in determining whether a hostile work environment exists. See, e.g., id. A hostile work environment claim is "based on the cumulative effect of individual acts." Id. at 115. The "accumulated effect" of incidents of offensive comments directed at women and other harassing conduct, "taken together, can constitute a hostile work environment." O'Rourke v. City of Providence, 235 F.3d 713, 729 (1st Cir. 2001). Greene testified that he saw magazines picturing "women in sexually explicit positions" who were "naked and bent over" posted at common areas of the terminal such as the time clock and company bulletin boards. Greene's former coworker Jeffrey Wood testified that he saw sexually explicit magazines in areas used by women employees. Greene complained of seeing sexual and sexist jokes and cartoons that pictured naked men and women "on a continuous basis." Both Greene and Wood testified that a supervisor, Gene Hart, used sexually explicit language, told off-color jokes, and made sexually-oriented comments about women employees. The company's anti-harassment policy prohibited this behavior, and Greene was told by his supervisor to bring to his attention any material he found offensive. Nonetheless, the district court held that no reasonable jury could find that it was objectively reasonable for Greene to believe that the presence of sexually explicit magazines and sexual and sexist jokes, faxes, or e-mails was sufficiently severe or pervasive to create a hostile environment for female employees at Pyle's York terminal. Accordingly, the court dismissed Greene's claim that his termination for complaining about the environment at the terminal was prohibited retaliation under Title VII. The court erred in dismissing Greene's retaliation claim. Where, as here, an employee complains about behavior that would amount to an actionable hostile work environment if it was repeated often enough, the employee is protected from retaliation by § 704(a) for reporting the behavior to management regardless of whether it had become sufficiently pervasive to violate the law at the time of the complaint. Section 704(a) of Title VII makes it unlawful for an employer to discriminate against an employee because the employee "has opposed any practice made an unlawful employment practice" by the Act. 42 U.S.C. § 2000e-3(a). This Court has held that opposition is protected under this provision as long as the employee reasonably believed that the conduct he is opposing is unlawful under Title VII, even if the underlying claim fails. See, e.g., Peters v. Jenney, 327 F.3d 307, 320 (4th Cir. 2003) ("To show protected activity, the plaintiff in a . . . retaliation case need only prove that he opposed an unlawful employment practice which he reasonably believed had occurred or was occurring.") (internal quotation marks and alteration omitted). The district court held that Greene could not establish a claim under § 704(a) despite the evidence that his termination was caused by his complaints about sexually offensive material present in the workplace because, the court concluded, his belief that the presence of the material created an actionable hostile work environment was objectively unreasonable. In reaching this conclusion, the court emphasized that the alleged instances where offensive material was present were too infrequent at the time of Greene's discharge to constitute a hostile work environment. We do not address the correctness of the district court's conclusion that it was objectively unreasonable for Greene to believe that a hostile work environment already existed at the terminal at the time when he complained because Greene's actions in reporting the conduct to management were protected under § 704(a) if he reasonably believed that they would help prevent the creation of a hostile work environment. The district court erroneously assumed that Greene could not have "opposed" an unlawful employment practice unless the unlawful employment practice had already occurred. This assumption is based on an unduly narrow definition of the term "oppose." A person who "opposes" capital punishment, for instance, does so not only by protesting against executions after they have occurred, but also by engaging in activities designed to prevent executions from happening, including, e.g., by voting against the death penalty when on a jury. See, e.g., Truesdale v. Moore, 142 F.3d 749, 757-58 (4th Cir. 1998) (approving exclusion from jury of jurors who "opposed the death penalty" because their "opposition to it would prevent [them from] voting for a death sentence"). Similarly, a person who acts to prevent abortions from occurring is commonly said to be "opposing" abortion. Cf. Van Dusen v. Barrack, 376 U.S. 612, 623 (1964) (party "opposed to transfer" will act "to prevent a transfer"); Schwabacher v. United States, 334 U.S. 182, 207 (1948) (stockholders "oppos[e]" a merger by acting to prevent it). Courts interpreting § 704(a) have recognized that opposition activities designed to prevent violations from occurring are as protected as activities designed to protest violations that are occurring or have already occurred. See, e.g., Foster v. Time Warner Entertainment Co., 250 F.3d 1189, 1194-95 (8th Cir. 2001) (ADA retaliation claim) (plaintiff supervisor believed ADA and company manual required that she accommodate Terry, an epileptic employee, with flexible work schedule; manager told her to stop accommodating Terry, but plaintiff protested those instructions and kept accommodating him; employer fired Terry and plaintiff; court affirmed judgment for plaintiff, holding that "[a] manager may be shown to have engaged in protected conduct if she refused to implement a discriminatory policy or took some action against it"); EEOC v. HBE Corp., 135 F.3d 543, 554 (8th Cir. 1998) (when a white manager was told to fire a black subordinate, he objected to the instruction as racially motivated, and was soon fired; court held his opposition to the termination, which had not yet happened, was protected under § 704(a)); Goos v. Nat'l Ass'n of Realtors, 715 F. Supp. 2, 3- 4 (D.D.C. 1989) (same); Dailey v. Park Place Airport Parking, L.L.C., No. 4:99CV0403, 2000 WL 641203, *4 (E.D. Mo. May 16, 2000) ("Plaintiff engaged in protected activity when he opposed [his superior's] directions not to hire any more black employees. Opposing an unlawful employment practice is protected conduct."). Defining "opposition" to include activities designed to prevent a violation from occurring would not only accord with the ordinary definition of the term; it would also help fulfill one of the central purposes of Title VII. The Supreme Court has repeatedly held that one of the primary objectives of Title VII is to eliminate arbitrary discrimination in the workplace, including the discriminatory alteration of terms and conditions of employment caused by a hostile environment. See Faragher v. City of Boca Raton, 524 U.S. 775, 805-06 (1998) (a primary objective of Title VII is to "avoid harm") (citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 417 (1975)). A covered employer accordingly has an "affirmative obligation to prevent violations" such as hostile environments from occurring. Id. at 806. Faragher involved a hostile environment created by harassment by supervisors, but employers also have an obligation to take measures to prevent hostile environments caused by coworker harassment. See Distasio v. Perkin Elmer Corp., 157 F.3d 55, 62 (2d Cir. 1998) (stating, in case discussing coworker harassment, that "[a]n employer who has notice of a hostile work environment has a duty to take reasonable steps to eliminate it."); 29 C.F.R. § 1604.11(f) (2005) ("An employer should take all steps necessary to prevent . . . harassment from occurring . . . ."); EEOC, Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, 8 Fair Empl. Prac. Manual 405:7651, 7662 n.58 (adopted June 18, 1999), available at www.eeoc.gov/policy/docs/harassment.html ("[T]he employer should have a mechanism for investigating such allegations [of harassment by coworkers] and undertaking corrective action, where appropriate."). Courts use a negligence standard for assessing employer liability for hostile environments caused by coworker harassment. See, e.g., Swentek v. USAIR, Inc., 830 F.2d 552, 558 (4th Cir. 1987) ("The employer is liable [for a hostile environment created by coworker harassment] where it had ‘actual or constructive knowledge of the existence of a . . . . hostile working environment and took no prompt and adequate remedial action.'") (citation omitted); Haugerud v. Amery Sch. Dist., 259 F.3d 678, 700 (7th Cir. 2001) ("Employers are only liable for coworker harassment if the plaintiff demonstrates that the employer was negligent in some fashion."). An employer would not be liable for negligently allowing a hostile environment to develop or continue unless it owed its employees a duty of reasonable care to prevent or halt such a violation. See, e.g., De Kwiatkowski v. Bear, Stearns & Co., 306 F.3d 1293, 1306 (2d Cir. 2002) (claim of negligence presupposes a duty of reasonable care). Pursuant to their obligation to prevent violations of Title VII, many employers have instituted policies prohibiting harassment and have established procedures that not only permit but require employees to complain about harassment, so that the employers have an opportunity to investigate the complaint and stop the harassment. The defendant had such policies and procedures in place when Greene complained. Thus when Greene complained to Chambers and McVeigh about the magazines, e-mails, faxes, and jokes he found offensive, he was complying with a duty imposed on him by his employer, and he was serving the purposes of Title VII by helping his employer prevent violations from occurring. The Supreme Court has recognized that "it would . . . serve Title VII's deterrent purpose . . . [to] encourage employees to report harassing conduct before it becomes severe or pervasive." Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764 (1998) (emphasis added). The district court, however, ruled that Greene's complaint was unprotected precisely because he reported offensive conduct before it became severe or pervasive. This ruling puts employees like Greene in a catch- 22 situation. On the one hand, if they complain too early—i.e., before the pattern of harassment is so severe or pervasive that a court will later rule that a reasonable person could have deemed it unlawful—their employers will be free to retaliate against them at will. On the other hand, if they wait until the pattern of harassment is so severe or pervasive that it is clearly unlawful, they may be precluded from securing relief for the hostile environment because their employers will be found to have not been on notice of the harassment until the employees finally complained about it. This dilemma is presented when the offensive conduct is committed by co- workers or by a supervisor. As noted above, in the case of coworker harassment, the plaintiff who waits to complain about offensive conduct may be unable to establish that the employer was negligent if the employer did not otherwise know of the conduct. In the case of supervisor harassment where no tangible employment action has been taken, an employer may be able to avail itself of the affirmative defense set forth in Faragher, 524 U.S. at 807, and Ellerth, 524 U.S. at 765, if the plaintiff does not promptly complain about offensive behavior. In those decisions, the Court held that a defendant can avoid liability for a hostile work environment created by supervisory harassment if it can establish both "(1) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm otherwise." Under this standard, if an employee does not promptly complain about offensive conduct by a supervisor, the employer may be able to establish an affirmative defense if the behavior escalates to the point where it amounts to a hostile work environment. See Faragher, 524 U.S. at 807-08 ("[W]hile proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense."). Yet, under the district court's decision, an employee who complains about offensive behavior before it reaches a level that could be reasonably considered a hostile work environment in an attempt to put a stop to the offending behavior has not engaged in protected activity and is, therefore, not protected from retaliation. This stance frustrates Title VII's remedial purpose. Instead, an employee should be protected from retaliation by § 704(a) when he reports conduct by a coworker or supervisor that, if repeated often enough, would create a hostile work environment. Several courts have held such complaints to be protected, often by applying a generous standard in determining whether the plaintiff's belief was reasonable. See, e.g., Alexander v. Gerhardt Enters., 40 F.3d 187, 195-96 (7th Cir. 1994) (black employee attended a meeting at which her white supervisor said, "If a nigger can do it, anybody can do it"; plaintiff complained to management and was soon fired; Seventh Circuit affirmed the district court's ruling that Alexander's belief that the statement was unlawful was reasonable notwithstanding defendant's argument that, since a single racist slur does not constitute a hostile environment, Alexander's complaints were not protected); Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1174-80 (2d Cir 1996) (plaintiff was fired after she complained that male coworkers were treating her as a subordinate, and one of them said she was "acting like a bitch in heat," and the other talked about whether his "pecker [wa]s getting in the way"; court held that the record supported the jury's finding that Reed's belief that she was being subjected to an unlawful employment practice was reasonable); Moyo v. Gomez, 40 F.3d 982, 985 (9th Cir. 1994) (black corrections officer believed prison's practice of allowing white inmates, but not black inmates, to shower after work shifts violated Title VII; he complained and was fired; court held that even though inmates are not considered employees for Title VII purposes, plaintiff's belief might still have been reasonable, and the district court accordingly erred in dismissing his claim); id. at 984 ("An erroneous belief that an employer engaged in an unlawful employment practice is reasonable, and thus actionable under § 704 (a), if premised on a mistake made in good faith. A good-faith mistake may be one of fact or of law.") (emphasis in original); Carter v. Rosenberg & Estis, P.C., No. 95-10439, 1998 WL 150491, at *7-11 (S.D.N.Y. Mar. 31, 1998) (male coworker asked Carter for a kiss, and when she refused, he allegedly refused to take instructions from her and got her in trouble with her supervisor, leading to her discharge; Carter complained and was eventually fired; after long and detailed analysis, the court rejected defendant's argument that Carter's belief that she was protesting unlawful activity was unreasonable); id. at *12 ("[P]laintiffs alleging retaliation are not required to possess a good faith, reasonable belief as to every legal element necessary to succeed on such a claim, and are instead held only to a ‘lay person's' understanding of the violation . . . . It is the Court's firm conviction that . . . the law should not leave unprotected those employees who experience retaliation for reports of what they believe reasonably and in good faith to be a violation of the law . . . ."). The defendant may argue that the Commission's position is precluded by Clark Co. Sch. Dist. v. Breeden, 532 U.S. 268 (2001) (per curiam). In that case a female employee met with a male coworker and her male supervisor to review the psychological evaluations of four job applicants. The report on one applicant disclosed that he had once commented to a coworker, "I hear making love to you is like making love to the Grand Canyon." The supervisor read this comment out loud at the meeting, looked at Breeden, and said, "I don't know what that means." Her male coworker replied, "Well, I'll tell you later," and both men chuckled. Id. at 269. Breeden complained about this incident to management, and her job duties were later reorganized to her detriment. The Ninth Circuit held that "it is possible that a reasonable person in Breeden's position could have mistakenly believed that [the supervisor's] behavior constituted unlawful sexual harassment." Breeden v. Clark Co. Sch. Dist., 232 F.3d 893, 2000 WL 991821, at *1 (July 19, 2000). The Supreme Court, in a per curiam decision, reversed. The Court noted that "isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment," and stressed that it was part of Breeden's job to review these psychological evaluations and that Breeden had "conceded that it did not bother or upset her to read the statement in the file." Breeden, 532 U.S. at 271. The Court concluded that "[n]o reasonable person could have believed that the single incident recounted above violated Title VII's standards." Id. Breeden is easily distinguished on its facts. There was no evidence in Breeden that the offensive statement in question had been made more than once. In this case, Greene alleges a pattern of sexually explicit and sexist materials left in plain view or posted in common areas of the York terminal where women are certain to see them. Furthermore, the language and conduct that the plaintiff objected to in Breeden were mild enough that a reasonable person might not believe that such language and conduct, even repeated many times, would constitute a hostile environment. Thus, complaining about them would not be protected activity, even under the test we have proposed above. Here, by contrast, Greene complained of the presence of sexually explicit and sexist materials present in the workplace, as well as allegations that supervisors used sexually explicit language and made sexual comments about female employees. Clearly, this is the type of conduct that would create a hostile work environment if it was sufficiently pervasive. Accordingly, Greene's complaints can reasonably be viewed as an effort to prevent this conduct from becoming sufficiently widespread to alter the conditions of employment for Pyle's female employees, and, therefore, as "opposition to a practice made unlawful" under Title VII. CONCLUSION For the reasons stated above, the Commission urges this Court to reverse the district court's order and remand this case for further proceedings under the appropriate legal standards. Respectfully submitted, JAMES L. LEE Deputy General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ______________________________ JULIE L. GANTZ Attorney EQUAL EMPOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7032 Washington, D.C. 20507 CERTIFICATE OF COMPLIANCE In accordance with Fed. R. App. P 32(a)(7)(C), I certify that this brief was prepared using Times New Roman 14 point font, and contains 6,325 words from the Statement of Interest through the Conclusion, as determined by the Microsoft Word 2003 word count program. _____________________________ Julie L. Gantz CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief have been sent first class mail, postage pre-paid, to the following counsel of record: COUNSEL FOR PLAINTIFF-APPELLANT: C. WILLIAM MICHAELS 1579 Dellsway Road Towson, MD 21286 (410) 321-5770 COUNSEL FOR DEFENDANT-APPELLEE: Randall C. Schauer DILWORTH PAXSON LLP 1734 Market Street Philadelphia, PA 19103 (215) 575-7147 ____________________________ Julie L. Gantz U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, NW Washington, DC 20507 September 9, 2005 ******************************************************************** <> <1> Citations to the record proper are abbreviated “R.” and refer to the district court docket sheet number.