Kenneth Pirolli v. World Flavors, Inc.
 99-2043


 IN THE UNITED STATES COURT OF APPEALS
 FOR THE THIRD CIRCUIT
 _______________________________________

 No. 99-2043
 _______________________________________

 KENNETH PIROLLI,

   Plaintiff/Appellant,

 v.

 WORLD FLAVORS, INC., and EDWARD SELSER,

   Defendants/Appellees.
 _____________________________________________________________

 On Appeal from the United States District Court
 for the Eastern District of Pennsylvania
 _____________________________________________________________

 BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
 AS AMICUS CURIAE
 _____________________________________________________________

 GWENDOLYN YOUNG REAMS
 Associate General Counsel

 PHILIP B. SKLOVER
 Associate General Counsel
        EQUAL EMPLOYMENT
 LORRAINE C. DAVIS      OPPORTUNITY COMMISSION
 Assistant General Counsel   Office of General Counsel
        1801 L Street, N.W.
 JENNIFER S. GOLDSTEIN   Washington, DC  20507
 Attorney      (202) 663-4733
 TABLE OF CONTENTS

 TABLE OF AUTHORITIES...............................................ii

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

 STATEMENT OF THE ISSUES...........................................1

 STATEMENT OF FACTS................................................2
  District Court Decision ....................................... 5

 SUMMARY of ARGUMENT..........................................8

 ARGUMENT

 I.  THE ADA PLAINLY EMBRACES CLAIMS OF HOSTILE
 ENVIRONMENT DISCRIMINATION ............................................... 10

 II.  THE DISTRICT COURT ERRED IN GRANTING SUMMARY
 JUDGMENT FOR WORLD FLAVORS WHERE THERE WAS EVIDENCE
 THAT PIROLLI'S CO-WORKERS SUBJECTED HIM TO SEVERE AND
 ABUSIVE HARASSMENT BECAUSE OF HIS DISABILITY AND SEX ......... 12

 A.  There was Evidence that Pirolli was Subjected to Harassment
 Because He was a Mentally Retarded Male .................................. 12

  B.  There Was Evidence that the Alleged Conduct by Co-Workers Was
  Sufficiently Severe to Create a Hostile Work Environment for Pirolli .......
  20

  C.  There Was Evidence that Pirolli's Employer Failed to Take Prompt
  and Adequate Remedial Action in Response to Known Harassment .......... 26

 CONCLUSION.................................................................28

 ADDENDUM

 CERTIFICATE OF BAR MEMBERSHIP and CERTIFICATE OF COMPLIANCE

 CERTIFICATE OF SERVICESTATEMENT OF INTEREST

  The Equal Employment Opportunity Commission is the federal agency charged
  with the interpretation, administration, and enforcement of Title I of
  the Americans with Disabilities Act (ADA), 42 U.S.C.  12111 et seq.,
  and Title VII of the Civil Rights Act of 1964, 42 U.S.C.  2000e et seq.
  This appeal raises the important legal question -- yet to be decided
  definitively by any court of appeals -- of whether the ADA contemplates a
  claim for hostile work environment harassment.  This appeal also presents
  the issue of how to analyze comparative evidence where the claim is not
  that the harassment occurred because of sex or because of disability,
  but because of sex and disability.  In our view, the district court's
  decision did not take the unique nature of the claim into account, and
  as a result the court failed to consider powerful comparative evidence
  that plaintiff was harassed because he fell within the subgroup of
  mentally retarded male.  We therefore offer our views to the Court.

 STATEMENT OF THE ISSUES<1>

 1.  Whether the ADA encompasses claims of hostile work environment
 discrimination where the ADA contains language virtually identical to
 Title VII language interpreted to encompass such claims.
 2.  Whether summary judgment was improperly granted where there was
 evidence plaintiff was subjected to severe and abusive harassment because
 of his disability and sex, and where the employer took no remedial action
 in response to the most severe acts of harassment.
 STATEMENT OF FACTS
  Plaintiff Kenneth Pirolli was hired by defendant World Flavors, Inc.,
  in May 1994 through the Bucks County Association for Retarded Citizens
  Productions Services, Inc. ("BARC"), an organization that trains and
  places disabled individuals.  Pirolli has been diagnosed with "Borderline
  Intellectual Functioning," R.22,<2> Exh. C at 1 (attached as Addendum)
  (hereinafter "Add."), and has been tested as having an IQ of 75 on the
  Wechsler Intelligence Scales.<3>  R.22, Exh. B ("Confidential Report
  of Psychological Evaluation").  Pirolli also has been diagnosed with a
  "Relational Problem Not Otherwise Specified."  Add. 1.  A 1990 assessment
  of Pirolli, prepared while he was attending school in a Special
  Education program, listed under a "Concerns/Observations" heading:
  "Social ineptness (drools [and] stands to[o] close to others when he
  talks). Not liked by peers."  R.22, Exh. B ("Child Study Team Report").
  The report also noted that in school Pirolli "is often teased and his
  feelings are hurt."  Id.
  World Flavors, a company that processes and sells spices, hired Pirolli
  to work as an "all around person," weighing products; packing, sealing,
  and stacking boxes for shipment; sweeping and scrubbing the plant floors;
  and picking up trash.  Pirolli was able to perform these tasks, and often
  did so with "no problems at all."  R.22, Exh. G (Selser Dep.) at 26,
  37; see also id. at 38 (Pirolli was "more than capable" of performing
  his job).  At other times, however, Pirolli would make mistakes, which
  required that the task be repeated.  Ed Selser, the plant manager,
  stated in his deposition that Pirolli's mistakes caused some resentment
  among his co-workers:  "you hear the mumblings from the other employees.
  Thanks Ken . . . now we've got to do it all over again, or something
  like that."  Id. at 37.
  It is unclear from the record how well Pirolli fit in among his
  co-workers.  While some co-workers stated in depositions that they
  considered Pirolli a friend, Pirolli himself stated that he did not have
  any friends at the plant.  R.22, Exh. A (Pirolli Dep.) at 17.  Pirolli
  also stood out in certain ways from his co-workers.  For example, Pirolli
  used to wear fingernail polish and fake fingernails to work. Id. at 21.
  Co-workers eventually told Selser about Pirolli's nails, and Selser
  instructed Pirolli not to wear the polish or fake fingernails.  Id. at
  24.  According to Pirolli, "everything that they see it bothered them
  [his co-workers], and they told him [Selser]."  Id. at 23.
  Pirolli alleges that between the time he was hired in May 1994 and
  his termination in September 1996, he was subjected to harassment
  by his co-workers.  Some of the alleged harassment took the form
  of name-calling.  R.22, Exh. A (Pirolli Dep.) at 26.  Other alleged
  harassment was more physical and, to Pirolli, more threatening.
  For example, Pirolli stated that one day he was in the men's locker
  room changing clothes.  At the time, Pirolli had a shirt and jacket on,
  but no pants.  Id. at 51.  As Pirolli described it, when he bent over
  to get his clothes
 "I seen Mike's [a co-worker's] penis . . . .  Then he pulled his pants
 up just enough to cover it, then the lights went out.  Sam [another
 co-worker] hold me with his arms, they tried to hold me down. . . .
 Ken [another co-worker] was there, he didn't do nothing, he was just
 watching."

 Id. at 49.  Pirolli stated that "Gene," another co-worker had turned off
 the lights and was trying to close the door, but Pirolli stuck his foot in
 the door.  Eventually Gene turned the lights back on.  To Pirolli, he felt
 that his co-workers were "almost raping me."  Id. at 50.  Pirolli stated
 that he told Selser about the incident, that Selser promised "to take
 care of it," but that Selser never took any action.  Id. at 51.
  There was also evidence that another one of Pirolli's co-workers,
  Harley Strauss, "attempted to push a broom pole into [Pirolli's] behind
  as other staff watched."  Add. 1.  Pirolli was wearing work clothes
  at the time.  There was evidence that at times when Pirolli would
  bend over, Sam would rub his penis against Pirolli's behind. Add. 1.
  Pirolli "reported these incidents to his foreman [Selser]," but "the
  harassment continued."  Add. 1.  And there was evidence that Pirolli's
  co-workers put him in a "tote," a large plastic container.  He stated
  that he had to kick the lid open to get out. Pirolli stated that he
  never saw anyone else put in a tote.  R.22, Exh. A (Pirolli Dep.) at 47.
  Finally, there was evidence of actions by Pirolli's co-workers that were
  directed at a number of different employees.  Such actions included
  throwing balls of tape at each other, squirting water at each other,
  hitting each other in the arm, and putting each other in headlocks.
  However, the more severe, sexually-oriented conduct appeared to be
  reserved for Pirolli alone.
  World Flavors employed one other individual with some mental retardation.
  R.22, Exh. G (Selser Dep.) at 71; see also R.22, Exh. J (Twaits
  Aff.).  That employee, who was female, apparently was not subjected to
  harassment.  According to the employee, Leslie Ann Twaits, she felt that
  she was not singled out for different treatment and she did not believe
  she had been subjected to discrimination.  R.22, Exh. J (Twaits Aff.).
 District Court Decision
  The district court granted World Flavors' motion for summary judgment.
  See Pirolli v. World Flavors, Inc., 1999 WL 1065214 (E.D. Pa. 1999).
  The court first considered Pirolli's claim that he was subject to
  harassment on the basis of sex.  According to the court, the evidence
  presented "does not provide a basis upon which a reasonable jury could
  find that he was harassed because of his sex."  Pirolli, 1999 WL 1065214,
  at *3.  The court considered the evidence of the locker room incident,
  which Pirolli characterized as "the rape."  The court noted Pirolli's
  testimony that a co-worker held him by the waist and attempted to
  prevent him from leaving the room, that another co-worker turned off
  the lights, that this event occurred while Pirolli and the others
  were in various stages of undress, and that, according to Pirolli,
  he saw another co-worker's penis during the scuffle.  Id.  The court
  concluded that this conduct, albeit "inappropriate," "was far from a
  rape or even an attempted rape."  Id.
  The court next considered Pirolli's allegation that a co-worker
  attempted to insert a broomstick up his anus while another co-worker
  watched.  The court deemed the incident merely "inappropriate" and
  "far less offensive than the complaint allegations suggest."  Pirolli,
  1999 WL 1065214, at *4.  The court also emphasized that the only
  record substantiation for this allegation was the report of Pirolli's
  psychologist.  The report was not in the form of an affidavit, nor was
  "the alleged history . . . verified by an affidavit from plaintiff."
  Id. at *4 n.4.  The court concluded that the "report alone in this form
  cannot be the basis for a factual dispute."  Id.
  Addressing the remaining evidence, the court noted that other instances
  of harassment (e.g. being stuffed into a large plastic container) were
  "not overtly sexual in nature," and allegations of other sexual-type
  harassment (e.g. propositions from co-workers) did not have record
  support.  Pirolli, 1999 WL 1065214, at *4.  The court concluded that
  while some of the conduct of Pirolli's co-workers "had an offensive
  sexual connotation," there was insufficient evidence of discrimination
  because of sex.  Pirolli, 1999 WL 1065214, at *4.
  The district court, analyzing the claim further, determined that although
  the conduct was regular and pervasive and it detrimentally affected
  Pirolli, the conduct objectively did not rise to the level of severity,
  offensiveness, or abusiveness required to constitute harassment.
  Pirolli, 1999 WL 1065214, at *5.  The court stated that Pirolli "was
  treated no differently than his co-workers," who regularly engaged in
  "physical horseplay and roughhousing."  Id.  Such "macho horseplay and
  adolescent roughhousing" appears to have been the "workplace etiquette in
  [the] food plant."  Id. at *11.  Finally, the court held that there were
  no grounds for holding the employer liable since there was evidence that,
  after Pirolli complained to Selser about an incident, Selser disciplined
  the co-worker.  Id. at *5.
  The district court next addressed Pirolli's ADA harassment claim.
  The court noted that the Third Circuit has not decided whether such a
  claim is viable under the ADA.  Pirolli, 1999 WL 1065214, at *6.  In any
  event, the court held, there is insufficient evidence that Pirolli
  experienced harassment because of his disability.  According to the
  court, there is no evidence "of an awareness among his co-workers of
  Pirolli's mental disability or that their behavior stemmed from such
  an awareness."  Id.  Nor was there evidence that the work environment
  was "severe and abusive," as an objective matter.  Id.
      SUMMARY OF ARGUMENT
  The plain language of the ADA establishes that Congress intended to
  encompass claims of hostile work environment harassment under the ADA.
  In the ADA, Congress chose to use virtually the same language that the
  Supreme Court held demonstrated Congress' intent to encompass claims of
  hostile work environment discrimination under Title VII.  Where Congress
  incorporates a provision of a prior law into a new law, it can be assumed
  that Congress is aware of the judicial interpretation of that provision.
  It is thus evident that Congress intended that the ADA would protect
  disabled individuals from disability-based harassment in the workplace.
  The plaintiff in this case alleged he was subjected to severe
  harassment not only because of his disability (mental retardation),
  but also because of his sex.  The district court examined the sex and
  disability allegations separately, failing to consider the evidentiary
  interplay between the two allegations.  As a result, the court apparently
  neglected to consider evidence that Pirolli was subjected to harassment
  not simply because he was male and not simply because he had some mental
  retardation, but because he was a mentally-retarded male.  That an
  individual can allege discrimination because he or she belongs to a
  subclass of one or more particular protected groups,  such as black
  females, is well-settled as a matter of law.  Factually, there was
  powerful comparative evidence that while numerous employees engaged in
  occasional horseplay, only Pirolli was subjected to the more severe and
  sexually-oriented conduct alleged.  There was one other mentally-retarded
  employee, a female, who was not treated differently than her co-workers.
  From this comparative evidence a  jury could infer that but for
  Pirolli's status as a mentally-retarded man, he would not have been
  the unique recipient of his co-workers' sexually-hostile treatment.
  Finally, even considering the sex claim standing alone, the form of
  the co-workers' conduct - suggestions of anal sodomy - could itself be
  grounds from which a jury could infer that but for Pirolli being a male,
  he would not have been subjected to such conduct.
  The district court's alternative holding - that the conduct was not
  objectively severe or abusive - is flawed.  Considering the circumstances
  of the incidents, particularly the locker room incident, a reasonable
  person could find them threatening or humiliating.  These incidents
  also must not be analyzed in a vacuum, but rather should be assessed in
  their totality to ascertain whether the incidents add up to a hostile
  work environment.  To the extent that the district court declined to
  consider evidence because it was contained within a psychologist's
  report unaccompanied by affidavit, the court erred.  This Court has
  held that the standard for authentication is flexible and should take
  into account all the evidence indicating that a document is authentic.
  In this case there was considerable evidence that the report, which was
  submitted by defendant and which was never challenged as unauthentic,
  was in fact authentic.

 ARGUMENT

 I.  THE ADA PLAINLY EMBRACES CLAIMS OF HOSTILE ENVIRONMENT
 DISCRIMINATION.

  The ADA prohibits discrimination in regard to "terms, conditions,
  and privileges of employment."  42 U.S.C.  12112(a).  This language
  is borrowed from Title VII (42 U.S.C.  2000e-2(a)), and is virtually
  the same language the Supreme Court interpreted to encompass hostile
  environment claims under that statute.  See Harris v. Forklift Sys.,
  Inc., 510 U.S. 17, 21 (1993) ("'phrase "terms, conditions, or privileges
  of employment" evinces a congressional intent "to strike at the entire
  spectrum of disparate treatment of men and women" in employment,'
  which includes requiring people to work in a discriminatorily hostile or
  abusive environment") (quoting Meritor Savs. Bank v. Vinson, 477 U.S. 57,
  64 (1986)); see also Oncale v. Sundowner Offshore Servs., Inc., 523
  U.S. 75, 79-80 (1998).  Congress' decision to use the comparable "terms"
  and "conditions" language in the ADA is significant, for "Congress is
  presumed to be aware of . . . [a] judicial interpretation of a statute."
  Lorillard v. Pons, 343 U.S. 575, 580 (1978).  And where "Congress adopts
  a new law incorporating sections of a prior law, Congress normally can
  be presumed to have had knowledge of the interpretation given to the
  incorporated law."  Id. at 581.  Moreover, there is every reason to
  think that Congress intended to afford disabled individuals the same
  protection from a hostile work environment that it affords individuals
  protected by Title VII.  See generally H.R. Rep. No. 485(III), 101st
  Cong., 2d Sess. 48 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 471
  ("the purpose of the ADA [is] to provide civil rights protections
  for persons with disabilities that are parallel to those available to
  minorities and women").
  This Court has recognized that the "almost identical" language used in
  the ADA "indicates that a cause of action for harassment exists under
  the ADA."  Walton v. Mental Health Ass'n of Southeastern Pa., 168 F.3d
  661, 666 (3d Cir. 1999).  The Walton Court stopped short of so holding,
  however, because the plaintiff in that case failed to state a claim
  disability-based harassment.  Id. at 667.  In any event, whether or
  not the Walton Court made an explicit holding,  we urge this Court to
  give effect to its well-reasoned conclusion that Congress' choice of
  language in the ADA is powerful evidence that harassment claims are
  encompassed within the ADA.

 II.  THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR WORLD
 FLAVORS WHERE THERE WAS EVIDENCE THAT PIROLLI'S CO-WORKERS SUBJECTED
 HIM TO SEVERE AND ABUSIVE HARASSMENT BECAUSE OF HIS DISABILITY AND SEX.

 A.  There was Evidence that Pirolli was Subjected to Harassment Because
 He was a Mentally Retarded Male.

  Critical to any claim of discrimination is proof that such discrimination
  occurred because of a trait protected by one of the anti-discrimination
  statutes.  See generally Oncale v. Sundowner Offshore Servs., Inc.,
  523 U.S. 75 (1998).  The district court held, on summary judgment,
  that Pirolli failed to meet that burden because there was insufficient
  evidence that the co-workers' actions were due to Pirolli's sex or
  disability.  In our view, however, there was strong, comparative evidence
  that Pirolli was subjected to harassment by his peers because of his
  sex and because of his disability.  In particular, there was evidence
  that male co-workers without mental retardation were subjected only to
  minor "macho" horseplay and not the severe and abusive harassment to
  which Pirolli alone was subjected.  There was evidence that a female
  co-worker with a comparably pronounced learning disability was subjected
  to no harassment at all.  In sum, the comparative evidence in this case
  at least creates an inference that the harassment Pirolli had to endure
  was inflicted because of his unique status as a mentally retarded male,
  thus making summary judgment inappropriate.
  The district court rejected Pirolli's harassment claim in part because,
  it stated, there was no evidence his co-workers knew of "Pirolli's mental
  disability," a fact which, if true, would negate any inference that
  their actions were taken because he was mentally retarded.  The district
  court's statement that there was no evidence of co-worker knowledge is
  flatly inconsistent with the record.  Most notably, Ed Selser, the plant
  manager, testified in his deposition: "I'm not sure who was employed
  at that time, but I know that everyone was alerted that Kenny [Pirolli]
  had - what would you call it, a disability or handicap."  R.22, Exh. G
  (Selser Dep.) at 49 (emphasis added).  The court's characterization
  of the evidence also is at odds with reasonable inferences that could
  be drawn, and on summary judgment must be drawn, from other record
  evidence.  See, e.g. Reeves v. Sanderson Plumbing Prods., Inc., 120
  S.Ct. 2097, 2110 (2000) (court must draw all reasonable inferences in
  favor of nonmoving party).  For example, there was evidence that when
  Pirolli began his employment, he was accompanied by a representative
  from BARC for one to two weeks.    R.22, Exh. G (Selser Dep.) at 23.
  The BARC representative helped Pirolli understand how to perform his
  assigned tasks.  Id. at 66-67; see also id. at 22 (representative
  was "like . . . a shadow.  She was there watching, making sure that
  everything was going fine.").  Thereafter, the representative often
  returned to check on Pirolli.  Id. at 59.  There also was evidence that
  Pirolli "stood out" in appearance and manner from others around him.
  See, e.g., R.22, Exh. B ("Child Study Team Report") (Pirolli drools
  and stands too close to others when he talks).  A factfinder could
  reasonably infer from this evidence that co-workers would have to have
  been aware that Pirolli had some disability, and the district court
  erred in holding to the contrary.
  The district court also stated there was no evidence that Pirolli was
  harassed "because of" his protected traits.  In analyzing Pirolli's claim
  that he was harassed, the district court examined the sex and disability
  components of the claim in complete isolation, without considering the
  possibility of, and the significance of, an overlap of the two claims.
  The court likewise examined the evidence supporting the claims in
  isolation.  Perhaps as a result, the district court did not recognize the
  comparative evidence indicating that Pirolli may have been subjected to
  harassment far more severe than co-workers not just because he was male
  or disabled, but because he was a mentally retarded male.  It appears
  that the fact that not all men were subjected to severe harassment, and
  that not all mentally retarded employees were subjected to harassment,
  may have undermined the strength of Pirolli's claim in the court's view.
  In our view, the court erred by failing to assess the evidence that
  Pirolli was harassed because he was both disabled and male.
  As a legal matter, it is well-settled that a violation can be established
  by demonstrating discriminatory conduct against a particular subclass
  of one or more  protected groups (here a mentally retarded male).
  For example, in Jefferies v. Harris County Community Action Association,
  615 F.2d 1025, 1034 (5th Cir. 1980), the Fifth Circuit held that the
  plaintiff, a black female, could state Title VII claim for discrimination
  against black females even though the employer did not discriminate
  against female or black employees generally.  The court noted it was
  relying on a long line of precedent holding that employers may not
  discriminate against a subclass of women.  See, e.g., Phillips v. Martin
  Marietta Corp., 400 U.S. 542, 544 (1971) (plaintiff can state claim
  under Title VII where employer discriminated not against all women, but
  only against women with preschool-age children).  The Jefferies court
  noted that the additional factor in the case -- race -- was itself a
  prohibited basis of discrimination.  The court went on to hold that
  allowing discrimination against a subclass of individuals with two
  protected traits would be "illogical."  Jefferies, 615 F.2d at 1034;
  see also Lam v. University of Hawaii, 40 F.3d 1551, 1562 (9th Cir. 1994)
  (holding Asian woman may pursue claim of discrimination on basis of
  combination of the two factors and criticizing any "attempt to bisect a
  person's identity at the intersection of race and gender").  Failure to
  recognize a claim for discrimination here, where disability rather than
  race is the additional factor, likewise would be illogical.<4>
  The rationale for recognizing claims like those in Jefferies,
  commonly referred to as "sex (or race or some other protected trait)
  plus" cases, is grounded in the language of the statutes themselves.
  Both Title VII and the ADA prohibit discrimination  "because of"
  a protected trait.  42 U.S.C.  2000e-2(a); 42 U.S.C.  12112(a).
  This language does not mean that the protected trait must be the sole
  cause of the discrimination.  See Willingham v. Macon Tel. Publ'g Co.,
  507 F.2d 1084, 1089-91 (5th Cir. 1975) (Congress' rejection of amendment
  to Title VII which would have added word "solely" to modify word
  "sex" supports "sex plus" theory).  Rather, the statutes are violated
  whenever the protected trait is a "but for" cause of discrimination.
  See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 262-63 (1989)
  (O'Connor, J.); see also 42 U.S.C.  2000e-2(m) (Title VII violated
  whenever protected trait was a motivating factor, even though there
  were other motivating factors); Aman v. Cort Furniture Rental Corp.,
  85 F.3d 1074, 1083 (3d Cir. 1996) (in racial harassment case, plaintiff
  must show that if she "had been white she would not have been treated
  in the same manner").  A violation can be established where a plaintiff
  shows discrimination because of a protected trait (such as sex) plus some
  additional characteristic.<5>  Thus in this case Pirolli must show that
  but for his disability and sex the harassment would not have occurred.
  Turning to the facts of this case, there is sufficient evidence that
  Pirolli was harassed because he was a mentally retarded male to preclude
  summary judgment.  The evidence that the harassment occurred because
  he was a mentally retarded male is primarily comparative.  Comparative
  evidence can be highly probative in cases such as this one.  Indeed,
  the Supreme Court explicitly approved of using comparative evidence in
  harassment cases.  See Oncale v. Sundowner Offshore Servs., Inc., 523
  U.S. 75, 80-81 (1998) (harassment plaintiff can prove discrimination by
  using comparative evidence about how  plaintiff was treated vis-a-vis
  individuals who are not members of the protected class).  In this
  case, there is evidence that while other employees were the subject
  of occasional punches in the arm, water fights, and the like, no other
  employee was subjected to the more severe and sexually-oriented conduct
  to which Pirolli allegedly was subjected.  The district court's statement
  that Pirolli "was treated no differently than his co-workers," Pirolli,
  1999 WL 1065214, at *5, cannot be reconciled with the evidence that
  only Pirolli was subjected to incidents like the ones that occurred in
  the locker room or with the broomstick.
  The record indicates that Pirolli's co-workers also did not subject a
  female disabled employee to harassment of any kind.  Leslie Ann Twaits,
  who also was hired through an agency assisting disabled individuals
  obtain employment, had some mental retardation.  R.22, Exh. G (Selser
  Dep.) at 71; see also R.22, Exh. J (Twaits Aff.) (Twaits has "a learning
  disability").<6>  Twaits stated in an affidavit that "I feel that I have
  been treated like everyone else at World Flavors and I do not believe
  that I have ever been . . . discriminated against . . ."  R.22, Exh. J
  (Twaits Aff.).  A jury could infer from this comparative evidence that
  Pirolli was subjected to harassment because he was mentally retarded
  and he was male.
   The fact that the co-workers did not harass all males, or all
   mentally-disabled individuals should not undercut the significance
   of this comparative evidence.  See Jefferies, 615 F.2d at 1034 (fact
   that black males and white females were not subject to discrimination
   should not defeat claim  that employer discriminated against black
   female plaintiff).  To the contrary, the comparative evidence in
   this case is a sound basis from which a jury could infer hostility by
   certain co-workers towards the presence of a mentally retarded man in
   their workplace.
  Finally, the evidence in this case also could support a claim by Pirolli
  that he was harassed because of his sex, without considering the fact
  that he was mentally retarded.  There was evidence that co-workers
  repeatedly engaged in conduct suggesting sexual invasion or humiliation,
  such as the locker room incident, the broom pole incident, and the
  occasions on which "Sam" would "rub his penis against Mr. Pirolli's
  behind."  Add.  1.  As discussed above, the evidence indicates that
  females were not subjected to this kind of severe behavior.  Moreover,
  the form of the behavior itself - suggestions of anal sodomy - seems
  to be behavior inflicted largely on male victims.<7>  See Oncale,
  523 U.S. at 80 (jury can infer from form of offensive conduct towards
  plaintiff that same conduct would not have occurred had plaintiff been
  member of the other sex).  A jury could infer from the form of the
  conduct itself that but for Pirolli being a male, he would not have
  been subjected to severe harassment.
 B.  There Was Evidence that the Alleged Conduct by Co-Workers Was
 Sufficiently Severe to Create a Hostile Work Environment for Pirolli.

  The district court held that the alleged conduct by Pirolli's co-workers
  was not sufficiently severe, offensive, or abusive to constitute
  harassment.  See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1998)
  (Title VII violated when workplace 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'"); Walton v. Mental Health Ass'n
  of Southeastern Pa., 168 F.3d 661, 667 (3d Cir. 1999) (same) (ADA case).
  We submit that the court erred in so holding.
  The district court appeared to give little weight to the two most
  severe incidents alleged.  With regard to the locker room incident,
  the court concluded that the complaint's characterization of it as a
  "rape" was an exaggeration.  Pirolli, 1999 WL 1065214, at *3 (conduct was
  "inappropriate" but "was far from a rape or even an attempted rape").
  It is true that the conduct obviously was not "rape," compare18
  Pa.C.S.A.  3121, but the arguable hyperbole of the complaint<8> does
  not excuse failing to consider the evidence presented. Actions short
  of rape plainly can constitute unlawful harassment.  In addition, this
  Court has held that it is not necessary that each incident standing
  alone be severe enough to create a hostile work environment; a court
  should look to "totality" of conduct to determine whether a hostile work
  environment exists.  See West v. Philadelphia Elec. Co., 45 F.3d 744,
  756 (3d Cir. 1995); Andrews v. City of Philadelphia, 895 F.2d 1469,
  1485 (3d Cir. 1990).
  We also take issue with the court's characterization of the incident as
  merely  "inappropriate," especially in light of the evidence surrounding
  the incident.  As the Supreme Court has emphasized, "the objective
  severity of harassment should be judged from the perspective of a
  reasonable person in the plaintiff's position, considering 'all the
  circumstances.'"  Oncale, 523 U.S. at 81 (quoting Harris, 510 U.S. at
  23).  In our view, any reasonable person could view being physically
  restrained by co-workers in a darkened locker room under circumstances
  set out by Pirolli as severe and abusive.  See Harris, 510 U.S. at 23
  (whether conduct is "physically threatening or humiliating" is relevant
  to whether environment is hostile or abusive).  Subjectively, Pirolli
  was "'scared to death'" by the incident and "feared he would be raped."
  Add.<9>
  The district court also deemed merely "inappropriate" the threat
  to insert a broomstick up Pirolli's anus.  Again we submit that
  the incident was more than simply inappropriate and could support
  a finding of severity because of its threatening and/or humiliating
  character.  See Harris, 510 U.S. at 23; see also McWilliams v. Fairfax
  County Bd. of Supervisors, 72 F.3d 1191, 1193-96 (4th Cir. 1996)
  (co-workers who "placed a broomstick to [plaintiff's] anus"and who
  tied plaintiff's hands together and blindfolded him engaged in conduct
  that was "shameful," "utterly despicable," and arguably at the level
  of adversely affecting the victim's work performance)<10>; Martin
  v. Norfolk S. Ry. Co., 926 F. Supp. 1044, 1047-52 (N.D. Ala. 1996)
  (co-workers who, inter alia, "attempted to stick a broom handle into
  [plaintiff's] anus" while plaintiff was "fully clothed" engaged in
  conduct that was "offensive" and arguably "extreme and outrageous");
  Goluszek v. H.P. Smith, 697 F. Supp. 1452, 1454-56 (N.D. Ill. 1988)
  (co-worker actions, including "pok[ing] [plaintiff] in the buttocks
  with a stick," was "pervasive . . . harassment")<11>; compare Taylor
  v. Nat'l Group of Cos., 872 F. Supp. 462, 463-64 (N.D. Ohio 1994)
  (female plaintiff struck on buttocks by board wielded by company
  president "is an example of extremely severe sexual harassment").
  There also was other evidence of harassment which the court did not
  mention, such as evidence that one male co-worker at times would
  rub his penis against Pirolli's behind when Pirolli would bend over.
  In our view, when the evidence of harassment is considered in totality,
  the harassment was sufficiently severe and abusive to make summary
  judgment inappropriate.
  The district court in this case apparently gave the broomstick incident
  little consideration, and the rubbing incidents no consideration, because
  the evidence of these incidents was contained within a psychologist's
  report which, as the district court stressed, was not in the form of an
  affidavit nor was it verified by an affidavit from Pirolli.  Pirolli,
  1999 WL 1065214, at *4 n.4 (the "report alone in this form cannot be the
  basis for a factual dispute").  That the report was unaccompanied by an
  affidavit should not automatically render the report unauthenticated,
  however, especially where there was other evidence of the report's
  authenticity.
  In his deposition, Pirolli stated that he went to see the psychologist,
  Dr. Dorfman, on a regular basis.  Pirolli stated that he discussed
  events "that were going on with me over [at] World Flavors."  R.22,
  Exh. A (Pirolli Dep.) at 45.  When asked whether he told Dr. Dorfman
  "everything that happened to you that bothered you," Pirolli replied
  "Yes, I told him everything."  Id. at 46; see also id. at 30-32, 44-45.
  Pirolli specifically mentioned discussing being placed in the tote
  with Dr. Dorfman.  Id. at 46.  The district court did not consider this
  evidence, but instead applied an unduly rigid authentication standard.
  Such a rigid standard is inconsistent with this Court's precedent, for
  this Court has rejected applying "technical evidentiary rules" to the
  question of authenticity.  See Link v. Mercedes-Benz of N. Am., Inc.,
  788 F.2d 918, 928 (3d Cir. 1986).  According to the Link Court,
  "'[t]he burden of proof for authentication is slight.  "All that is
  required is a foundation from which the fact-finder could legitimately
  infer that the evidence is what the proponent claims it to be."'"

 Id. at 927.  Such foundation can include circumstantial evidence.  Id.
 The Linz Court determined that distinctive characteristics of the
 documents - such as company logos, a professional appearance, and the
 specific nature of the contents of the documents - were characteristics
 "sufficient to overcome the slight authentication admissibility burden."
 Id. at 928.  Dr. Dorfman's report likewise has a professional appearance,
 is specific in the nature of its contents, and is on professional
 stationery.  Add.  The top of the report also indicates that it was
 faxed from Dr. Dorfman's office.  Id.  Combined with Pirolli's deposition
 testimony, there was sufficient indicia that the document was what both
 parties purported it to be.
  Moreover, defendant did not raise any questions about the report's
  authenticity.  Indeed, it was the defendant itself that first placed the
  report in the district court record when it attached it as an exhibit
  to its summary judgment motion.  Given that defendant first attached
  the report as an exhibit, Pirolli had no reason to expect a dispute
  as to authenticity.  Compare Mangiaracina v. Clark, 2000 WL 684191,
  *1 (S.D. Ind. 2000) (not unusual for unauthenticated documents to be
  submitted, especially where no reason to expect a dispute).  Had the
  defendant raised an objection Pirolli could have attempted to cure the
  defect with an affidavit.  Id.; compare Townsend v. Columbia Operations,
  667 F.2d 844 (9th Cir. 1982) (district court may consider a document
  where opposing counsel does not object to the document); 10A Wright &
  Miller, Federal Practice & Procedure  2722 n.43 (same).  Additionally,
  defendant should not be allowed to challenge the report's authenticity in
  this Court, for where no timely objection is lodged, a party's ability
  to challenge the authenticity of the document on appeal is waived.
  Wright & Miller,  2722 n.44.
  In sum, considering the totality of events -- the locker room incident,
  the broomstick incident, the rubbing incidents, and the allegation by
  Pirolli that he was placed in a large plastic container -- there is
  sufficient evidence of a hostile work environment to withstand summary
  judgment.
 C.  There Was Evidence that Pirolli's Employer Failed to Take Prompt
 and Adequate Remedial Action in Response to Known Harassment.

  The district court held that the employer could not be held liable
  because it disciplined one employee after Pirolli complained to
  Selser.<12>  In general, an employer is liable for co-worker harassment
  under a negligence theory of agency if management-level employees
  knew or had constructive knowledge of the harassment and failed to
  take prompt and adequate remedial action.  See Walton v. Mental Health
  Ass'n of Southeastern Pa., 168 F.3d 661, 667 (3d Cir. 1999); Andrews,
  895 F.2d at 1486.  Remedial action is "adequate" if it is "reasonably
  calculated to prevent further harassment."  Knabe v. Boury Corp.,
  114 F.3d 407, 411 n.8 (3d Cir.1997).  Implicit in this standard is a
  requirement that some remedial action be undertaken.  Id. at 412-14;
  see also Hathaway v. Runyon, 132 F.3d 1214, 1224 (8th Cir. 1997) ("It
  is not a remedy for the employer to do nothing...."); Fuller v. City
  of Oakland, 47 F.3d 1522, 1528-29 (9th Cir. 1995) (employer's remedial
  obligation not discharged if no remedy is undertaken).
  In this case, there was evidence, not discussed by the district court,
  that Pirolli complained about the more severe incidents (namely the
  locker room incident) committed by different employees to Selser.
  According to Pirolli, Selser never took any action in response to
  his complaint.  R.22, Exh. A (Pirolli Dep.) at 51. Thus while Selser
  apparently addressed one complaint by Pirolli regarding a comment by
  one supervisory employee, the evidence indicates that he ignored a
  complaint of far more serious harassment by wholly different employees.
  In other words, there was evidence that no remedial action, adequate or
  otherwise, was undertaken with regard to harassment by the co-workers.
  This evidence at least creates a fact issue as to whether the employer
  took remedial action reasonably calculated to end co-worker harassment.
 CONCLUSION
  For the foregoing reasons, we urge this Court to reverse the judgment
  of the district court and remand the case for further proceedings.
 GWENDOLYN YOUNG REAMS
 Associate General Counsel

 PHILIP B. SKLOVER
 Associate General Counsel

 LORRAINE C. DAVIS
 Assistant General Counsel


 __________________________
 JENNIFER S. GOLDSTEIN
 Attorney

 EQUAL EMPLOYMENT
  OPPORTUNITY COMMISSION
 Office of General Counsel
 1801 L Street, N.W.
 Washington, DC  20507
 (202) 663-4733

 CERTIFICATE OF BAR MEMBERSHIP

  I hereby certify that I am employed by and represent in this case the
  U.S. Equal Employment Opportunity Commission, an agency of the federal
  government.  It is my understanding that, as an attorney representing
  the federal government, I need not become a member of the bar of this
  Court in order to appear in this matter.

 CERTIFICATE OF COMPLIANCE

  I hereby certify that this brief complies with the type-volume
  limitations of Fed. R. App. P. 32(a)(7).  This brief contains 6,673
  words.

 CERTIFICATE OF SERVICE

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  Federal Express, postage prepaid, on this 25th day of January, 2001,
  to the following:

 Lee I. Raiken, Esq.    Joanne W. Rathgeber, Esq.
 1600 Locust Street    111 East Court Street
 Philadelphia, PA 19103-6305   Doylestown, PA 18901



 _____________________________
 JENNIFER S. GOLDSTEIN
 Attorney

 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
 Office of General Counsel
 1801 L Street, N.W.
 Washington, DC  20507
 (202) 663-4733

 January 25, 2001


 1    The Commission takes no position on any other issue raised in this
 appeal.

 2  "R.*" refers to the docket entry number in the district court docket
 sheet.

 3  An IQ (Intelligence Quotient) is "an estimate of a person's current
 level of functioning as measured by the various tasks required in a
 test."  Gary Groth-Marnat, Handbook of Psychological Assessment 153 (3d
 ed. 1997).  An IQ of 75 places Pirolli in roughly the bottom five percent
 of the population when compared to his age-related peers.  Id. at 154-55.

 4  The fact that the two relevant characteristics of Pirolli - his
 disability and his gender - are traits protected by two different statutes
 does not undercut his ability to pursue his claim under the ADA and
 Title VII.  See, e.g., McGrenaghan v. St. Denis Sch., 979 F. Supp. 323,
 326-27 (E.D. Pa. 1997) (woman with disabled child may proceed under
 both ADA and Title VII, where plaintiff alleges discrimination against a
 subclass of women who have children with disabilities); Arnett v. Aspin,
 846 F. Supp. 1234, 1240 (E.D. Pa. 1994) (no reason why plaintiff, who
 alleged discrimination against older women, cannot proceed on "sex-plus"
 theory even though the additional characteristic  of age is also protected
 by a separate statute).

 5  Courts have generally limited "sex-plus" cases to those in which the
 additional characteristic is either an immutable characteristic or a
 constitutionally-protected activity, such as marriage.  See Jefferies,
 615 F.2d at 1033 (noting hair length regulations for males falls into
 neither category).  Pirolli, who is male and who has mental retardation,
 obviously has alleged discrimination based on immutable characteristics.

 6 According to Selser, Twaits was able to perform her job, but was a
 bit slow in doing so.

 7  Two commentators have observed that male harassers often "invoke the
 quintessentially male imagery of forcible penetration through threats
 of rape and scenarios of simulated oral and anal sodomy in a manner that
 expressly depicts the harasser's manhood and superior masculinity as the
 source of his power to dominate the target."  Hilary S. Axam & Deborah
 Zalesne, Simulated Sodomy and Other Forms of Heterosexual 'Horseplay:'
 Same Sex Sexual Harassment, Workplace Gender Hierarchies, and the
 Myth of the Gender Monolith Before and After Oncale, 11 Yale J.L. &
 Feminism 155, 202 (1999).  Axam and Zalesne go on to cite fourteen
 cases involving actual, simulated, or threatened anal sodomy of a
 male employee by male co-workers.  Id. at 202 n.283 (citing cases).
 See also Richard F. Storrow, Same-Sex Harassment Claims After Oncale,
 47 Am. U. L. Rev. 677 (1998) (arguing that causation analysis should
 focus on conduct, particularly where "the victim has been subjected
 to willful exposure of the harasser's genital or to violent acts of
 simulated sexual activity").

 8  "Rape" is how Pirolli referred to the incident.  R.22, Exh. A (Pirolli
 Dep.) at 49.

 9  The district court acknowledged that Pirolli subjectively found the
 conduct abusive.  Pirolli, 1999 WL 1065214, at *4.

 10  The McWilliams plaintiff also had "a learning disability that arrested
 his cognitive and emotional development."  McWilliams, 72 F.3d at 1193.
 The plaintiff's disability did not factor into the court's analysis,
 presumably because the plaintiff, who was subjected to harassment before
 the effective date of the ADA, did not bring a claim under the ADA.

 11  The McWilliams court ultimately rejected the Title VII claim on the
 grounds that a hostile work environment claim "does not lie where both
 the alleged harassers and the victim are heterosexuals of the same sex."
 McWilliams, 72 F.3d at 1195.  The Martin court, relying on McWilliams,
 reached the same holding, though it allowed plaintiff's claims under
 FELA and state tort law to go forward.  Martin, 926 F. Supp. at 1050.
 The Goluszek court rejected plaintiff's harassment claim because, it
 held, Congress did not intend to prohibit male-on-male harassment in a
 male-dominated environment.  Goluszek, 697 F. Supp. at 1456.  After the
 Supreme Court's clarification of same-sex harassment in Oncale, the
 holdings of McWilliams, Martin, and Goluszek are no longer good law.

 12  The discipline was issued against a supervisory employee named Eric
 who told Pirolli: "you weren't paid to think."  R.22, Exh. G (Selser
 Dep.) at 16.