Jordan v. Alternative Resources Corp., 4th Cir.
Brief as amicus
July 14, 2005


             IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT
                                
                                
                                
                          No. 05-1485
                                
                                

ROBERT L. JORDAN,

     Plaintiff-Appellant, 
v.

ALTERNATIVE RESOURCES CORP., et al.

     Defendants-Appellees.
                              


        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 
                                
                                
                                
                                ERIC S. DREIBAND
                                General Counsel
                                
                                VINCENT J. BLACKWOOD
                                Acting Associate General Counsel
                                
                                PAUL D. RAMSHAW
                                Attorney
                                
                                U.S. EQUAL EMPLOYMENT 
                                   OPPORTUNITY COMMISSION
                                1801 L Street, N.W., Room 7040
                                Washington, DC 20507
                                   202-663-4737 

                       TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . .1

STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . .2

STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . .2

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .3

     1.  Proceedings . . . . . . . . . . . . . . . . . . . . . .3
     2.  Statement of Facts. . . . . . . . . . . . . . . . . . .4
     3.  District Court Decision . . . . . . . . . . . . . . . .6

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . .7

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

I.   It Was Not Unreasonable for Jordan to Believe that Farjah's Highly
     Offensive Racist Statement, When Augmented by Coworkers'
     Reports that Farjah Had Made Similarly Offensive Statements
     Many Times Before, Was Creating a Hostile Environment for
     African American Employees.  . . . . . . . . . . . . . . . 8

II.  An Employee Is Protected by  704(a) When He Complains to
     Management about Significantly Offensive Conduct that, if
     Repeated Often Enough, Would Constitute a Hostile Work
     Environment in Violation of  703(a).  . . . . . . . . .  11

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 22

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . 23

CERTIFICATE OF SERVICE

                      TABLE OF AUTHORITIES

                         FEDERAL CASES 

Alexander v. Gerhardt Enterprises, Inc., 40 F.3d 187 
	(7th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . 11, 17

Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984);  . . . . . . 9

Breeden v. Clark County School District, No. 99-15522, 
     2000 U.S. App. LEXIS 17564 (9th Cir. July 19, 2000) . . . . . . .20

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998)  . . . . .16

Carter v. Rosenberg & Estis, P.C., 77 Fair Empl. Prac. Cas. (BNA) 925
     1998 U.S. Dist. LEXIS 4010 (S.D.N.Y. Mar. 31, 1998) . . . . . . .18

Clark County School District v. Breeden, 532 U.S. 268 (2001) . . . 20-21

Dailey v. Park Place Airport Parking, L.L.C., 2000 WL 641203 
     (E.D. Mo. May 16, 2000) . . . . . . . . . . . . . . . . . . . . .14

De Kwiatkowski v. Bear, Stearns & Co., 306 F.3d 1293 
	(2d Cir. 2002)  . . . . . . . . . . . . . . . . . . . . . . . 16

Distasio v. Perkin Elmer Corp., 157 F.3d 55 (2d Cir. 1998) . . . . . .15

EEOC v. HBE Corp., 135 F.3d 543 (8th Cir. 1998)  . . . . . . . . . . .13

EEOC v. Ohio Edison Co., 7 F.3d 541 (6th Cir. 1993)  . . . . . . . . .12

Faragher v City of Boca Raton, 524 U.S. 775 (1998) . . . . . . . . . .14

Foster v. Time Warner Entertainment Co., 250 F.3d 1189 
	(8th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . 13

Goos v. National Association of Realtors, 715 F. Supp. 2 
	(D.D.C. 1989) . . . . . . . . . . . . . . . . . . . . . . . . 14

Harrison v. Westinghouse Savannah River Co., 176 F.3d 776 
     (4th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . 4

Haugerud v. Amery School District, 259 F.3d 678 (7th Cir. 2001) . . . 15

Jeffries v. Metro-Mark, Inc., 45 F.3d 258 (8th Cir. 1995)  . . . . . . 9

Little v. United Technologies, 103 F.3d 956 (11th Cir. 1997) . . . . .19

Morgan v. McDonough, 540 F.2d 527 (1st Cir. 1976)  . . . . . . . . . . 9

Moyo v. Gomez, 40 F.3d 982 (9th Cir. 1994) . . . . . . . . . . . . . .17

NLRB v. Scrivener, 405 U.S. 117 (1972) . . . . . . . . . . . . . . . .12

Reed v. A. W. Lawrence & Co., 95 F.3d 1170 (2d Cir. 1996)  . . . .11, 17

Robinson v. Shell Oil Co., 519 U.S. 337 (1997) . . . . . . . . . . . .12

Schwabacher v. U.S., 334 U.S. 182 (1948) . . . . . . . . . . . . . . .13

Swentek v. USAIR, Inc., 830 F.2d 552 (4th Cir. 1987) . . . . . . . . .15

Truesdale v.  Moore, 142 F.3d 749 (4th Cir. 1998)  . . . . . . . . . .12

Van Dusen v. Barrack, 376 U.S. 612 (1964)  . . . . . . . . . . . . . .13

White v. BFI Waste Services, LLC, 375 F.3d 288 (4th Cir. 2004) . . . . 9

                          STATE CASES 

Harris v. State, 46 So. 2d 91 (Miss. 1950) . . . . . . . . . . . . . .10

                    STATUTES AND REGULATIONS

28 U.S.C. 

      1291  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

      1331  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

      1343(a)(4)  . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Title VII of the Civil Rights Act of 1964  . . . . . . . . .1, 14, 17-18

      703(a), 42 U.S.C.  2000e-2(a)  . . . . . . . . . . . . . . . .11

      704(a), 42 U.S.C.  2000e-3(a)  . . . . . . . . . . . . . .passim

29 C.F.R. 1604.11(f)  . . . . . . . . . . . . . . . . . . . . . . . .15

                         MISCELLANEOUS 

EEOC, Guidance on Vicarious Employer Liability for Unlawful
     Harassment by Supervisors, 8 Fair Empl. Prac. Manual 405:7651 
     (adopted June 18, 1999) . . . . . . . . . . . . . . . . . . . . .15

Jennifer M. Russell, On Being a Gorilla in Your Midst, or, the Life
     of One Blackwoman in the Legal Academy, 28 Harv. C.R.-C.L. 
     L. Rev. 259 (1993)  . . . . . . . . . . . . . . . . . . . . . . .10



                     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 is the kind of
significantly offensive harassment that constitutes, or contributes to, an unlawful
hostile environment. Since this case addresses that significant issue, the
Commission offers its views.

                   STATEMENT OF JURISDICTION

     The district court had subject matter jurisdiction over Robert L. Jordan's
Title VII claims pursuant to 28 U.S.C.  1331 and 1343(a)(4). The district court
entered an order on March 30, 2005, dismissing all of Jordan's claims, and an
order on April 26 directing the clerk to close the case. Jordan filed a timely notice
of appeal on April 28. This court therefore has appellate jurisdiction under 28
U.S.C.  1291.

                    STATEMENT OF THE ISSUES

     1. Whether Jordan could reasonably believe that Farjah's racist statement,
when augmented by coworkers' reports that Farjah had made similar racist
statements in the workplace many times before, was creating a racially hostile
environment for African American employees.
     2. Whether an employee is protected from retaliation by  704(a) of Title
VII when he complains to management about racist 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

     In February 2004, after filing a charge of discrimination with the EEOC and
the Montgomery County Office of Human Rights and receiving a right-to-sue
notice, Jordan sued the Alternative Resources Corporation ("ARC") and the
International Business Machines Corporation ("IBM") in the Circuit Court of
Montgomery County alleging violations of Title VII, 42 U.S.C.  1981, and state
and county law. JA 10-18.
     ARC and IBM removed the case to the United States District Court for the
District of Maryland (Chasanow, J.) in April 2004, and IBM then moved to
dismiss the complaint for failure to state a claim. JA 4, 19. In early July, Jordan
sought leave to amend his complaint. JA 76-87.
     On March 30, 2005, the district court entered an order denying Jordan's
motion for leave to amend (with prejudice as to some claims, and without
prejudice as to others) and granted defendants' motion to dismiss. JA 7, 253-82.
When Jordan failed to seek leave to amend his complaint within the time allowed
by the court, the court entered an order on April 26 directing the clerk to close the
case. JA 7, 285-86.

     2.  Statement of Facts<1>

     Robert L. Jordan, an African American, was hired by Alternative Resources
Corporation ("ARC"), a staffing firm, as a network technician in December 1998. 
He was placed by ARC at International Business Machines Corporation ("IBM").
Jordan was hired, paid and fired by ARC, but he worked at IBM, and IBM
controlled his day-to-day employment. JA 12, 15, 253. On October 23, 2002,
Jordan and Jay Farjah, a coworker employed by IBM, were standing next to each
other at work watching a television report on the recent capture of the two African
American suspects in the D.C. sniper case. Farjah stated: "They should put those
two black monkeys in a cage with a bunch of black apes and let the apes fuck
them." JA 13. Jordan was offended by the statement. JA 13. He immediately
discussed it with several of his coworkers, and at least two of his coworkers told
him that Farjah had made similar offensive comments many times before. 
JA 81.
     Both ARC and IBM have policies requiring that employees report to
management any conduct they perceive as discriminatory. JA 81. Jordan believed
that Farjah's repeated offensive statements created an unlawful hostile
environment for African American employees, or at a minimum would create such
an environment if the comments continued. JA 81. Later that day, Jordan reported
Farjah's racist statement to two of his IBM managers: Mary Ellen Gillard, his
first-line supervisor; and C. J. Huang, another IBM supervisor. JA 13. Huang
expressed skepticism about Jordan's complaint and asked him whether he had
considered the impact his complaint could have on Farjah. Huang also suggested
that Farjah might have been joking. JA 13. Huang and Gillard both told Jordan to
submit his complaint in writing, and he did so. JA 82. Jordan also reported
Farjah's statement to Sheri Mathers, an ARC manager, and discussed the incident
with her in detail. JA 14. At some point Gillard reported back to Jordan that she
had talked with Farjah. She said that Farjah had denied making the statement
Jordan reported, but had admitted saying: "They should put those two monkeys in
a cage." JA 82. When Gillard failed to offer any further remedy, Jordan told her he
wanted to pursue his complaint with Ron Thompson, IBM's site manager. 
JA 82. 
     After Jordan complained about Farjah's statement, IBM managers began to
retaliate against him. JA 14. When Jordan started working at IBM, he asked to
start his workday at 6:30 a.m. so he could leave in time to pick up his son from
school. ARC and IBM granted this request, and 6:30 a.m. had always been
Jordan's starting time. JA 14. Shortly after Jordan complained, Gillard directed
him to start his workday at 9:00 a.m. instead of 6:30 a.m. Jordan told Gillard the
later starting time would make it impossible for him to pick up his son at school,
but, without giving any reason for the alteration, she insisted that he make the
change. JA 14. Gillard also unfairly gave Jordan additional assignments. JA 14. In
addition, at an office Thanksgiving party, Huang made a crude, derogatory remark
and gesture to Jordan, which were witnessed by coworkers. JA 14. 
     On November 21, 2002, four weeks after Jordan initially complained,
Mathers called Jordan on the phone and fired him. She told him he was being fired
because he was "disruptive," because his position "had come to an end," and
because the IBM people "don't like you and you don't like them." JA 14. 

     3. District Court Decision

     The district court noted that a plaintiff alleging that he was retaliated against
for opposition to an unlawful employment practice must at least have had a
reasonable good-faith belief that the conduct he opposed violated Title VII. JA
261. The court ruled that Farjah's statement, even when augmented by the reports
of Jordan's coworkers, was not severe or pervasive enough to constitute an
actionable hostile environment, nor was it reasonable for Jordan to believe it did.
JA 262-64. Accordingly, the court held, Jordan's complaint about Farjah's
comment was not protected under 704(a). JA 261-64.

                      SUMMARY OF ARGUMENT

     There are two reasons why the district court should have denied defendants'
motion to dismiss. First, calling black persons "black monkeys" and talking about
putting them in a cage with "black apes" to be raped by the black apes is a racist
statement that perpetuates racist stereotypes of African Americans, denigrates
African Americans as sub-human, and creates or contributes to an unlawful
racially hostile environment. Once Jordan learned from coworkers that Farjah had
made similar racist statements "many times before," it was reasonable for Jordan
to believe that Farjah was creating a hostile environment for African American
coworkers.
     Second, the district court relied on an unduly narrow definition of the
statutory term "oppose" in  704(a). One "opposes" racial discrimination 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 racial discrimination and racially
hostile environments from occurring. Employers have a duty to prevent hostile
environments from occurring, and they cannot do that unless employees alert them
to racist conduct of the kind alleged in this case. Such conduct, if repeated often
enough, will create an unlawful hostile environment. Employees informing
management about such offensive conduct are accordingly 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

I.   IT WAS NOT UNREASONABLE FOR JORDAN TO BELIEVE
     THAT FARJAH'S HIGHLY OFFENSIVE RACIST STATEMENT,
     WHEN AUGMENTED BY COWORKERS' REPORTS THAT
     FARJAH HAD MADE SIMILARLY OFFENSIVE STATEMENTS
     MANY TIMES BEFORE, WAS CREATING A HOSTILE
     ENVIRONMENT FOR AFRICAN AMERICAN EMPLOYEES.

     In ruling that Jordan could not have reasonably believed that Farjah's
statements constituted a violation of Title VII, the district court failed to
appreciate how severely offensive the statement Jordan heard was. This Court has
repeatedly recognized that calling African Americans "monkeys" or "apes" is as
"odious, . . . degrading and humiliating" as calling them "niggers."  This Court has
stated:
     "[The supervisor's] constant use of the word monkey' to describe
     African Americans was similarly odious [to using the word nigger'].
     To suggest that a human being's physical appearance is essentially a
     caricature of a jungle beast goes far beyond the merely unflattering; it
     is degrading and humiliating in the extreme."
     
White v. BFI Waste Servs., LLC, 375 F.3d 288, 298 (4th Cir. 2004) (Luttig, J.)
(quoting Spriggs  v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001)). 
     Moreover, there is an enormous difference between saying, on the one hand,
that a black person looks like an ape or a monkey, which is the way the Spriggs
and White panels saw the problem ("suggest[ing] that a human being's physical
appearance is essentially a caricature of a jungle beast"), and calling that person an
ape or a monkey  saying or implying that he is an ape or a monkey. Historically,
racists in this nation have regarded African Americans as uncivilized, and
intellectually and culturally inferior, and they have referred to, considered and
treated them as sub-humans or animals. Specifically, racists have often referred to
blacks as "beasts," "gorillas," "apes," or "monkeys."  See, e.g., Jeffries v.
Metro-Mark, Inc., 45 F.3d 258, 260 (8th Cir. 1995) (action challenging racial
harassment, including a supervisor's calling black plaintiff a monkey); Bell v. City
of Milwaukee, 746 F.2d 1205, 1276-77 (7th Cir. 1984) (in case alleging racist
killing of black male by police officer, upholding admission of evidence that
police sergeant involved in the case stated that he believed that blacks were apes);
Morgan v. McDonough, 540 F.2d 527, 531 (1st Cir. 1976) (affirming district
court's school-desegregation orders in school where white students intimidated
black students by, among other things, chanting, "2, 4, 6, 8[,] assassinate the
nigger apes"); Harris v. State, 46 So. 2d 91, 93 (Miss. 1950) (overturning
manslaughter conviction because, among other things, district attorney referred to
defendant as a "big, black gorilla"); see also Jennifer M. Russell, On Being a
Gorilla in Your Midst, or, the Life of One Blackwoman in the Legal Academy, 28
Harv. C.R.-C.L. L. Rev. 259, 260 (1993) (black law professor who found a picture
of a gorilla placed in her school mailbox "harbored no doubts about the loud,
unambiguous message conveyed: Claim no membership to the human race. You
are not even a sub-species. You are of a different species altogether. A brute.
Animal, not human.' It was a time-worn message communicated to persons who
are not white."); Courtland Milloy, The Blinding Racism of His Comment, Wash.
Post, Mar. 6, 1996, at C1 (white sportscaster's reference to a black Georgetown
basketball player as "a tough monkey" is "particularly egregious because of a
centuries-old effort to dehumanize African Americans by linking them genetically
with primates").
     Since the statement Jordan heard was extraordinarily offensive, and since
Jordan heard from two of his coworkers that Farjah had made similarly offensive
racist statements many times before, the district court erred in ruling that it was
unreasonable for Jordan to believe that these oft-repeated, highly offensive
statements created different conditions of employment for blacks than for whites
and were therefore unlawful. See, e.g., Alexander v. Gerhardt Enters., Inc., 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 believed her two 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"; Reed complained and was soon
fired; 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).

II.  AN EMPLOYEE IS PROTECTED BY  704(a) WHEN HE COMPLAINS
     TO MANAGEMENT ABOUT SIGNIFICANTLY OFFENSIVE
     CONDUCT THAT, IF REPEATED OFTEN ENOUGH, WOULD
     CONSTITUTE A HOSTILE WORK ENVIRONMENT IN VIOLATION
     OF  703(a).

     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). Terms
in anti-retaliation provisions such as  704(a) should be construed broadly to
further the purpose of the provisions. See, e.g., Robinson v. Shell Oil Co., 519
U.S. 337, 345-46 (1997) (holding that the word "employee" in 704(a) should be
construed to include former employees, in part because that would be more
"consisten[t] with a primary purpose of the antiretaliation provisions"); EEOC v.
Ohio Edison Co., 7 F.3d 541, 545-46 (6th Cir. 1993) (holding that an employee is
protected from retaliation even when the person who opposed the unlawful
conduct was the employee's representative, and not the employee himself); cf.
NLRB v. Scrivener, 405 U.S. 117, 122-25 (1972) (the anti-retaliation provision of
the NLRA should be construed "more broadly . . . [because of Congress's intent]
to afford broad rather than narrow protection to the employee" and "in order to
fully effectuate the section's remedial purpose").
     The district court assumed that Jordan 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 Entm't 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., 2000 WL
641203, *4 (E.D. Mo. May 16, 2000) ("Plaintiff engaged in protected activity
when he opposed [the boss'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, of course, 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, "An 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) ("[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 employees may use to complain about harassment, so that the
employers have an opportunity to investigate the complaint and stop the
harassment. IBM and ARC had such policies and procedures in place when Jordan
complained. Their policies in fact required employees to report to management
any conduct that they perceived as discriminatory. Thus when Jordan complained
to IBM and ARC managers about Farjah's statement, he was complying with a
duty imposed on him by his employers, and he was serving the purposes of Title
VII by helping his employers 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 Jordan's complaint was unprotected
precisely because he reported Farjah's conduct before it became severe or
pervasive enough to constitute a hostile environment. This ruling puts employees
like Jordan in a catch-22 situation. On the one hand, if they complain too early 
i.e., before the harassment is so bad that a court would 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 harassment is so bad
that it is clearly unlawful, they will 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 rule
frustrates Title VII's purpose of eliminating discrimination in the workplace.
     Instead, an employee should be deemed protected from retaliation by 
704(a) when he reports conduct by a coworker or supervisor which, if repeated
often enough, would create a hostile work environment. Several courts have held
such complaints protected, often by applying a generous standard in determining
whether the plaintiff's belief was reasonable. See, e.g., Alexander, 40 F.3d at
195-96 (summarized supra at p. 11); Reed, 95 F.3d at 1174-80  (summarized supra
at p. 11); 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 if these inmates would not be 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., 77 Fair Empl. Prac. Cas. (BNA) 925, 930-34, 1998
U.S. Dist. LEXIS 4010, at *15-35 (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; Carter complained and was
eventually fired; after long and detailed analysis, court rejects defendant's
argument that Carter's belief that she was opposing unlawful activity was
unreasonable); id. at 933-34, *33 ("[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 . . . .").
     In the district court the defendants relied on Little v. United Technologies, 103
F.3d 956 (11th Cir. 1997). While Little is factually distinguishable from the case at
bar, the panel deciding the case relied on principles in significant tension with the
rule the Commission is advocating in this case, and the Commission believes those
principles are infirm. The Little panel ruled that Little was not opposing an
unlawful employment practice because: (a) coworker harassment is not
attributable to the employer unless the employer "knew or should have known of
the harassment in question and failed to take prompt remedial action"; and (b) the
single racist comment by Wilmot could not be attributed to the defendants, and
Little's protest was therefore not protected. Id. at 959-60. The Little court did not
discuss the employer's duty to prevent hostile environments from developing, and
the employees' essential role in that process; and the rationale on which the court
relied leads to the same catch-22 that the district court decision in this case
produces: the employee is not protected until the employer is liable for a hostile
environment, but if the employee waits till then to complain to management, the
employer will not be liable because it was not on notice of the harassment.
     Defendants may argue, as they did in the district court, that the
Commission's position is precluded by Clark County School District 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 County Sch. Dist., No.
99-15522, 2000 U.S. App. LEXIS 17564, at *5 (9th Cir. 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 in the district
court 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. The objectionable statement in
Breeden was nowhere near as offensive as the one in this case, and it was not part
of Jordan's job to review Farjah's statements. The statement in Breeden contained
no "fighting-word" epithet of the type that instantly transforms the nature of an
interaction. It did not characterize women as sub-human. Nor was there evidence
in Breeden, as alleged in this case, that similarly offensive statements had been
made many times before. In sum, the language and conduct that the plaintiff
objected to in Breeden were mild enough that a reasonable person would not
believe that such language and conduct, even repeated many times, would
constitute a hostile environment. Thus complaining about such conduct would not
be protected activity under the test we have proposed above.
                                

                           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,
                                
                                ERIC S. DREIBAND
                                General Counsel
                                
                                VINCENT J. BLACKWOOD
                                Acting Associate General Counsel
                                
                                
                                
                                
                                PAUL D. RAMSHAW
                                Attorney
                                U.S. EQUAL EMPLOYMENT
                                  OPPORTUNITY COMMISSION
                                1801 L Street, NW, Room 7040
                                Washington, DC  20507
                                  202-663-4737


                   CERTIFICATE OF COMPLIANCE

   In accordance with Federal Rule of Appellate Procedure 32(a)(7)(C), I
certify that this brief was prepared using Times New Roman font, 14 point, and
contains 4,646 words from the Statement of Interest through the Conclusion, as
determined by the Corel WordPerfect 9 word-counting program.



 Paul D. Ramshaw


                     CERTIFICATE OF SERVICE
   I hereby certify that two copies of the foregoing brief were served by
mailing them on this date first class, postage prepaid, to the following party and
counsel:
                              
                              Marc R. Jacobs
                              Seyfarth Shaw LLP
                              55 E. Monroe St., Ste. 4200
                              Chicago, IL 60603
                              
                              J. Hardin Marion
                              Tydings & Rosenberg LLP
                              100 E. Pratt St., 26th floor
                              Baltimore, MD 21202
                              
                              Stephen Z. Chertkof
                              Heller, Huron, Chertkof
                              1730 M St., NW, Ste. 412
                              Washington, DC 20036
                              
                              
                              
                              
                              
                              Paul D. Ramshaw
                              
                              Equal Employment 
                                Opportunity Commission
                              1801 L Street, N.W., Room 7018
                              Washington, DC  20507
                              (202) 663-4737

July 14, 2005

***********************************

<<FOOTNOTES>>

<1> These facts are taken from Jordans complaint and amended complaint. In ruling on 
defendants motion to dismiss, the district court was required to accept the 
allegations in the complaints as true and construe them as favorably as possible 
toward Jordan. Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th 
Cir. 1999).

<2> Little had no evidence that Wilmot, his coworker, had made similarly objectionable 
statements at other times, and he did not complain to management about Wilmots 
comment until about eight months later. Little, 103 F.3d at 958.