Terrence A. Beard, Oakland, Cal., for plaintiff-appellant.
Stephen L. Schirle, Asst. U.S. Atty., San Francisco, Cal., for defendant-appellee.
Appeal from the United States District Court for the Northern District of California.
Before BEEZER and KOZINSKI, Circuit Judges, and STEPHENS, ** District Judge.
BEEZER, Circuit Judge:
Kerry Ellison appeals the district court's order granting summary judgment to the Secretary of
the Treasury on her sexual harassment action brought under Title VII of the Civil Rights Act of
1964. 42 U.S.C. Sec. 2000e (1982). This appeal presents two important issues: (1) what test
should be applied to determine whether conduct is sufficiently severe or pervasive to alter the
conditions of employment and create a hostile working environment, and (2) what remedial
actions can shield employers from liability for sexual harassment by co-workers. The district
court held that Ellison did not state a prima facie case of hostile environment sexual
harassment. We reverse and remand.
Both issues require a detailed analysis of the facts, which we consider in the light most
favorable to Ellison, the non-moving party. Sierra Club v. Penfold, 857 F.2d 1307, 1320 (9th Cir.
1988). We review summary judgments de novo. Id.
Kerry Ellison worked as a revenue agent for the Internal Revenue Service in San Mateo,
California. During her initial training in 1984 she met Sterling Gray, another trainee, who was
also assigned to the San Mateo office. The two co-workers never became friends, and they did
not work closely together. Revenue agents in San Mateo office often went to lunch in groups. In
June 1986 when no one else was in the office, Gray asked Ellison to lunch. She accepted.
Ellison claimed that after the June lunch Gray started to pester her with unnecessary
questions and hang around her desk. On October 9, 1986, Gray asked Ellison out for a drink
after work. She declined, but she suggested that they have lunch the following week. She did
not want to have lunch alone with him, and she tried to stay away from the office during lunch
time. One day during the following week, Gray uncharacteristically dressed in a three-piece
suit and asked Ellison out for lunch. Again, she did not accept.
On October 22, 1986, Gray handed Ellison a note he wrote her a on a telephone message
slip, which read: “I cried over you last night and I’m totally drained today. I have never been in
such constant term oil [sic]. Thank you for talking with me. I could not stand to feel your hatred
for another day.” When Ellison realized that Gray wrote the note, she became shocked and
frightened and left the room. Gray followed her into the hallway and demanded that she talk to
him, but she left the building. Ellison later showed the note to Bonnie Miller, who supervised
both Ellison and Gray. Miller said that “this is sexual harassment.” Ellison asked Miller not to
do anything about it. She wanted to try to handle it herself. Ellison asked a male co-worker to
talk to Gray and to tell him that she was not interested in him and to leave her alone. The next
day, Thursday, Gray called in sick.
Ellison did not work on Friday, and on the following Monday, she started four weeks of training
in St. Louis. Gray mailed Ellison a card and a typed, single-spaced, three-page letter, which
she described as a “twenty times, a hundred times weirder” than the prior note. Gray wrote, in
part: “I know that you are worth knowing with or without sex…Leaving aside the hassles and
disasters of recent weeks. I have enjoyed you so much over these past few months. Watching
you. Experiencing you from O so far away. Admiring your style and élan…Don’t you think it odd
that two people who have never even talked together, alone, are striking off such intense
sparks…I will [write] another letter in the near future.” Explaining her reaction, Ellison stated: “I
just thought he was crazy. I thought he was nuts. I didn’t know what he would do next. I was
frightened.”
She immediately telephoned Miller. Ellison told her supervisor that she was frightened. She
requested that Miller transfer either her or Gray because she would not be comfortable
working in the same office with him. Miller asked Ellison to send a copy of the card and letter
to San Mateo. Miller then telephoned her supervisor, Joe Benton, and discussed the problem.
That same day Miller had a counseling session with Gray. She informed him that he was
entitled to union representation. During this meeting, she told Gray to leave Ellison alone. She
reminded Gray many times over the next few weeks that he must not contact Ellison in any
way. Gray subsequently transferred to the San Francisco office on November 24, 1986. Ellison
returned from St. Louis in late November and did not discuss the matter further with Miller.
After three weeks in San Francisco, Gray filed union grievances requesting a return to the San
Mateo office. The IRS and the union settled the grievances in Gray’s favor, agreeing to allow
him to transfer back to the San Mateo office provided that he spend four more months in San
Francisco and promise not to bother Ellison.
On January 28, 1987, Ellison first learned of Gray’s request in a letter from Miller explaining
that Gray would return to the San Mateo office. The letter indicated that management decided
to resolve Ellison’s problem with a six-month separation, and that it would take additional
action if the problem recurred.
After receiving the letter, Ellison was “frantic.” She filed a formal complaint with the IRS. She
also obtained permission to transfer to San Francisco temporarily when Gray returned. Gray
wrote Ellison another letter, which still sought to maintain the idea that he and Ellison had
some type of relationship. The IRS employee investigating the allegation agreed with Ellison’s
supervisor that Gray’s conduct constituted sexual harassment. In it final decision, however, the
Treasury Department (of which the IRS is a unit) rejected Ellison’s complaint because it
believed that the complaint did not describe a pattern or practice of sexual harassment. The
EEOC also ruled against Ellison because it concluded that the IRS took adequate action to
prevent the repetition of Gray’s conduct. Ellison filed a complaint in federal district court
against Brady, Secretary of the Treasury, alleging a Title VII violation. The district court granted
the defendant’s motion for summary judgment on the ground that Elision had failed to state a
case of sexual harassment caused by a hostile working environment; it characterized Gray’s
conduct as “isolated and genuinely trivial.” Ellison appealed.
Beezer, Circuit Judge:
In Meritor Saving Bank v. Vinson, 477 U.S. 57 (1986), the Supreme Court held that sexual
harassment constitutes sex discrimination in violation of Title VII. Courts have recognized
different forms of sexual harassment. In “quid pro quo” cases, employers condition
employment benefits on sexual favors. In “hostile environment” cases, employees work in
offensive or abusive environments. This case, like Meritor, involves a hostile environment
claim…
The Supreme Court in Meritor held that Mechelle Vinson’s working conditions constituted a
hostile environment in violation of Title VII’s prohibition of sex discrimination. Vinson’s
supervisor made repeated demands for sexual favors, usually at work, both during and after
business hours. Vinson initially refused her employer’s sexual advances, but eventually
acceded because she feared losing her job. They had intercourse over forty times. She
additionally testified that he fondled her in front of other employees, followed her into the
women’s restroom when she went there alone, exposed himself to her, and even forcibly
raped her on several occasions.” The court had no difficulty finding this environment hostile…
[A] hostile environment exists when an employee can show (1) that he or she was subjected
to sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual
nature, (2) that this conduct was unwelcome, and (3) that the conduct was sufficiently severe
or pervasive to alter the conditions of the victim’s employment and create an abusive working
environment. Here, the [defendant] argues that Gray’s conduct was not of a sexual nature. The
three-page letter, however, makes several references to sex and constitutes verbal conduct of
a sexual nature. We need not and do not decide whether a party can state a cause of action for
a sexually discriminatory working environment under Title VII when the conduct in question is
not sexual…
To state a claim under Title VII, sexual harassment “must be sufficiently severe and pervasive
to alter the conditions of the victim’s employment and create an abusive working environment.”
… [The court then reviewed the facts of two cases from other circuits, the Scott case and the
Rabidue case, that found no sexually hostile environment despite much evidence of sexual
language and conduct, offensive posters, and even some physical contact. The courts in
those cases apparently would find a hostile environment only in circumstances in which the
plaintiff has suffered serious psychological effects.] We do not agree with the standard set
forth in Scott and Rabidue, and we choose not to follow those decisions…. Surely, employees
need not endure sexual harassment until their psychological well-being is seriously affected
to the extent that they suffer anxiety and debilitation….Although an isolated epithet by itself fails
to support a cause of action for a hostile environment, Title VII’s protection of employees from
sex discrimination comes into play long before the point where victims of sexual harassment
require psychiatric assistance….
We…believe that Gray’s conduct was sufficiently severe and pervasive to alter the conditions
of Ellison’s employment and create an abusive working environment. We first note that,….
although a single act can be enough…repeated incidents create a stronger claim of hostile
environment, with the strength of the claim depending on the number of incidents and the
intensity of each incident….
Next, we believe that in evaluating the severity and pervasiveness of sexual harassment, we
should focus on the perspective of the victim. Courts “should consider the victim’s perspective
and not stereotyped notions of acceptable behavior.”…Conduct that many men consider
unobjectionable may offend many women. A male supervisor might believe, for example, that
it is legitimate for him to tell a female subordinate that she has a ‘great figure’ or ‘nice legs.’
The female subordinate, however, may find such comments offensive; men and women are
vulnerable in different ways and offended by different behavior. Men tend to view some forms
of sexual harassment as “harmless social interactions to which only overly-sensitive women
would object”; the characteristically male view depicts sexual harassment as comparatively
harmless amusement.
We realize that there is a broad range of viewpoints among women as a group, but we believe
that many women share common concerns which men do not necessarily share. For
example, because women are disproportionately victims of rape and sexual assault, women
have a stronger incentive to be concerned with sexual behavior. Women who are victims of
mild forms of sexual harassment may understandably worry whether a harasser’s conduct is
merely a prelude to violent sexual assault. Men, who are rarely victims of sexual assault, may
view sexual conduct in a vacuum without a full appreciation of the social setting or the
underlying threat of violence that a woman may perceive. One writer explains: “Their greater
physical and social vulnerability to sexual coercion can make women wary of sexual
encounters. Moreover, American women have been raised in a society where rape and sex-
related violence have reached unprecedented levels, and a vast pornography industry creates
continuous images of sexual coercion, objectification and violence….Because of the inequality
and coercion with which it is so frequently associated in the minds of women, the appearance
of sexuality in an unexpected context or a setting of ostensible equality can be an anguishing
experience.”
In order to shield employers from having to accommodate the idiosyncratic concerns of the
rare hyper-sensitive employee, we hold that a female plaintiff states a prima facie case of
hostile environment sexual harassment when she alleges conduct which a reasonable
women would consider sufficiently severe or pervasive to alter the conditions of employment
and create an abusive working environment….Of course, where male employees allege that
coworkers engage in conduct which creates a hostile environment, the appropriate victim’s
perspective would be that of a reasonable man….
We note that the reasonable victim standard we adopt today classifies conduct as unlawful
sexual harassment even when harassers do not realize that their conduct creates a hostile
working environment…. To avoid liability under Title VII, employers may have to educate and
sensitize their workforce to eliminate conduct which a reasonable victim would consider
unlawful sexual harassment….If sexual comments or sexual advances are in fact welcomed
by the recipient, they, of course, do not constitute sexual harassment. Title VII’s prohibition of
sex discrimination in employment does not require a totally desexualized work place….
We cannot say a matter of law that Ellison’s reaction was idiosyncratic or hyper-sensitive. We
believe that a reasonable woman could have had a similar reaction. After receiving the first
bizarre note from Gray, a person she barely knew, Ellison asked a co-worker to tell Gray to
leave her alone. Despite her request, Gray sent her a long, passionate, disturbing letter. He
told her he had been “watching” and “experiencing” her; he made repeated references to sex;
he said he would write again. Ellison had no way of knowing what Gray would do next. A
reasonable woman could consider Gray’s conduct, as alleged by Ellison, sufficiently severe
and pervasive to alter a condition of employment and create an abusive working
environment….
We next must determine what remedial actions by employers shield them from liability under
Title VII for sexual harassment by co-workers. [The question is, when management knows or
has reason to know of the harassment, has it taken adequate steps to stop the harassment?
Because the district court in this case granted a summary judgment against Ellison on the
hostile environment issue, the court did not deal with the question of whether the employer
took adequate steps upon learning of Gray’s conduct. Before remanding the case to the
district court for a trial on both the hostile environment question and the employer liability
question, the Court of Appeals provided some general guidelines for the district court to follow
in determining whether an employer has taken sufficient steps to avoid liability:] Employers
have a duty to “express strong disapproval” of sexual harassment, and to “develop appropriate
sanctions” [that are]…”reasonably calculated to end the harassment.”…In Barrett v. Omaha
National Bank, 726 F.2d 424 (8th Cir. 1984), the Eighth Circuit held that an employer properly
remedied a hostile working environment by fully investigating, reprimanding a harasser for
grossly inappropriate conduct, placing the offender on probation for ninety days, and warning
the offender that any further misconduct would result in discharge….
An employer’s remedy should persuade individual harassers to discontinue unlawful conduct.
We do not think that all harassment warrants dismissal; rather, remedies should be
“assessed proportionately to the seriousness of the offense.” Employers should impose
sufficient penalties to assure a workplace free from sexual harassment…. [The Court of
Appeals then noted some possible inadequacies in the employer’s response to Gray’s
conduct: First, the employer had not indicated that he would be punished if he continued the
behavior. Second, the employer had not disciplined Gray; neither the counseling nor the
temporary transfer were disciplinary actions. Third, it was not appropriate for the employer to
permit Gray to come back to the San Mateo office if his mere presence would continue to
create a sexually hostile environment. Fourth, if Gray’s mere presence would continue to
create a hostile environment, it is not appropriate to transfer Ellison; the employer’s response
should not have negative consequences for the victim. The Court of Appeals concluded that
there was a genuine fact issue as to the sufficiency of the employer’s response.
We reverse the district court’s decision that Ellison did not allege a case of sexual
harassment due to a hostile working environment, and we remand for [a trial on this question
and on the question of whether the employer took sufficient remedial steps to avoid liability for
a Title VII violation.
924 F.2d 872
54 Fair Empl.Prac.Cas. 1346,
55 Fair Empl.Prac.Cas. 111,
55 Empl. Prac. Dec. P 40,520, 59 USLW 2455
Kerry ELLISON, Plaintiff-Appellant,
v.
Nicholas F. BRADY, * Secretary of the Treasury,
Defendant-Appellee.
No. 89-15248.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted April 19, 1990.
Decided Jan. 23, 1991.
Dissent Amended Feb. 5, 1991.
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