No. 08-5307
    _______________________________________________________

            IN THE UNITED STATES COURT OF APPEALS
                    FOR THE SIXTH CIRCUIT
    _______________________________________________________

LYNETTE BARRETT, et al.,
	Plaintiffs/Appellants,

v.

WHIRLPOOL CORPORATION,
	Defendant/Appellee.

    _______________________________________________________

          On Appeal from the United States District Court
         for the Middle District of Tennessee at Nashville
                         No. 3:06-cv-0017
    _______________________________________________________

          BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY
          COMMISSION AS AMICUS CURIAE IN SUPPORT OF
         PLAINTIFFS/APPELLANTS AND IN FAVOR OF REVERSAL
    _______________________________________________________

RONALD S. COOPER
General Counsel

VINCENT J. BLACKWOOD
Acting Associate General Counsel

ELIZABETH E. THERAN
Attorney

EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
1801 L St., N.W.
Washington, D.C. 20507
(202) 663-4720
elizabeth.theran@eeoc.gov

                            TABLE OF CONTENTS

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

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

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

STATEMENT OF THE CASE.................................................................2

A.	Course of Proceedings.......................................................  2

B.	Statement of the Facts....................................................... 3

C.	District Court's Decision..................................................   9

SUMMARY OF ARGUMENT................................................................. 13

ARGUMENT...........................................................................  14

I.     A PLAINTIFF WHO IS TARGETED FOR HARASSMENT BECAUSE OF 
HER ASSOCIATION WITH COWORKERS OF A DIFFERENT RACE 
MAY ESTABLISH A CLAIM FOR A RACE-BASED HOSTILE WORK 
ENVIRONMENT UNDER TITLE VII WITHOUT ESTABLISHING ANY 
PARTICULAR DEGREE OF CLOSENESS TO HER COWORKERS....................................  14

II.	RACIAL HARASSMENT IS ACTIONABLE UNDER TITLE VII IF IT IS 
SUFFICIENTLY SEVERE OR PERVASIVE TO ALTER THE 
CONDITIONS OF THE VICTIM'S EMPLOYMENT..............................................  22

CONCLUSION...........................................................................27

CERTIFICATE OF COMPLIANCE............................................................28

CERTIFICATE OF SERVICE

                               TABLE OF AUTHORITIES

                                        CASES

Anjelino v. N.Y. Times Co., 200 F.3d 73 (3d Cir. 1999).............................. 19

Cerros v. Steel Techs., Inc., 398 F.3d 944 (7th Cir. 2005).........................  23

Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581  
(5th Cir. 1998), vacated in part on other grounds by Williams v. Wal-
Mart Stores, Inc., 182 F.3d 333 (5th Cir. 1999)...................................15-16

Drake v. Minn. Mining & Mfg. Co., 134 F.3d 878 (7th Cir. 1998)...................16, 17

EEOC v. Miss. Coll., 626 F.2d 477 (5th Cir. 1980)................................... 20

EEOC v. Nat'l Educ. Ass'n, Alaska, 422 F.3d 840 (9th Cir. 2005)....................  23

EEOC v. The Bailey Co., 563 F.2d 436 (6th Cir. 1977)............................ 19, 20

Hafford v. Seidner, 183 F.3d 506 (6th Cir. 1999)...................................  17

Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993)................................... 22

Harvill v. Westward Commc'ns, LLC, 433 F.3d 428 (5th Cir. 2005)...................22-23

Hawkins v. Anheuser-Busch, Inc., ___ F.3d ___, 2008 WL 423442  
(6th Cir. Feb. 19, 2008).......................................................  22, 24

Holcomb v. Iona Coll., ___ F.3d ___, 2008 WL 852129  
(2d Cir. Apr. 1, 2008)............................................................   15

Jackson v. Quanex Corp., 191 F.3d 647 (6th Cir. 1999)....................    24, 25, 26

Johnson v. Univ. of Cincinnati, 215 F.3d 561 (6th Cir. 2000).................... passim

Lauderdale v. Tex. Dep't of Criminal Justice, 512 F.3d 157 (5th Cir. 2007).......... 23

Leibovitz v. N.Y. City Transit Auth., 252 F.3d 179 (2d Cir. 2001)....................19

McGinest v. GTE Serv. Corp., 360 F.3d 1103 (9th Cir. 2004).........................  16

Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888  
(11th Cir. 1986).................................................................16, 17

Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc., 
173 F.3d 988 (6th Cir. 1999)..................................................   passim

Trafficante v. Metro. Life Ins. Co., 409 U.S. 205 (1972).............................19

Wanchick v. Great Lakes Health Plan, Inc., 6 Fed. Appx. 252  
(6th Cir. 2001)......................................................................10

Williams v. Gen. Motors Corp., 187 F.3d 553 (6th Cir. 1999)......................... 22

Winston v. Lear-Sigler, Inc., 558 F.2d 1266 (6th Cir. 1977)......................... 10

                                       STATUTES

Title VII of the Civil Rights Act of 1964, 42 U.S.C.  2000e et seq...............1, 2

42 U.S.C.  2000e-2(a)(1)............................................................14

42 U.S.C.  2000e-3(a)............................................................   21

                                        RULES

Fed. R. App. P. 29(a).................................................................1

Fed. R. App. P. 29(d)................................................................28

Fed. R. App. P. 32(a)(5)............................................................ 28

Fed. R. App. P. 32(a)(6)............................................................ 28

Fed. R. App. P. 32(a)(7)(B)..........................................................28

                                OTHER AUTHORITIES

Section 15, Race & Color Discrimination, 2 EEOC Compliance Manual 15-
5 (2006), http://www.eeoc.gov/policy/docs/race-color.html............................15

Section 8, Retaliation, 2 EEOC Compliance Manual 8-4-6 (1998), 
http://www.eeoc.gov/policy/docs/retal.html........................................   21

EEOC Policy Guidance on Current Issues of Sexual Harassment,  
N-915-050, 2 EEOC Compliance Manual (1990), 
http://www.eeoc.gov/policy/docs/currentissues.html..............................  23-24

Stephan Thernstrom & Abigail Thernstrom, America in Black and White 
153 (1997)...........................................................................25

Courtland Milloy, Hate Is Always In Style At A Gathering of the Klan, 
Washington Post, Oct. 18, 2006, at B1.............................................   25

                             STATEMENT OF INTEREST

     The Equal Employment Opportunity Commission is the agency established 
by Congress to administer, interpret, and enforce Title VII of the Civil Rights Act 
of 1964, 42 U.S.C.  2000e et seq.  This appeal presents an important issue 
concerning the proper analysis of when an employee has been subjected to a 
hostile work environment under Title VII based on her association with coworkers 
of a different race. 
     In this case, the district court ruled that the white plaintiffs could not proceed 
with their claim of racial harassment under Title VII because their "association" 
with their black coworkers was not close enough.  In so ruling, the district court 
misapplied the governing precedent of this Court and created an unduly rigid 
standard that has no support in the law and makes no sense in the context of 
determining whether a plaintiff has been the subject of a hostile work environment.  
Because resolution of this issue will affect the EEOC's enforcement of Title VII, 
the Commission offers its views to the Court pursuant to Fed. R. App. P. 29(a).

                           STATEMENT OF ISSUES<1>

     1.  Whether a plaintiff who can show that she was harassed because of her 
association with her black coworkers may establish a hostile work environment 
claim under Title VII regardless of the degree of closeness of her relationship with 
the coworkers.
     2.  Whether the district court erred insofar as it required the plaintiffs to 
demonstrate that the conduct of which they complained was sufficiently "severe 
and pervasive" to alter the terms and conditions of their employment.
STATEMENT OF THE CASE
A.	Course of Proceedings
     This is an appeal from a final judgment of the district court granting 
summary judgment and dismissing all of the plaintiffs' claims.  Plaintiffs initiated 
this action by filing a complaint on January 10, 2006, alleging that the defendant 
violated Title VII of the Civil Rights Act of 1964, 42 U.S.C.  2000e et seq., by 
discriminating against them and subjecting them to a hostile work environment on 
the basis of race, and retaliating against them for complaining about their allegedly 
discriminatory treatment.  (R.1, Complaint; R.82, Third Amended Complaint, at 1, 
5-6<2>) The district court granted summary judgment dismissing all of the plaintiffs' 
claims on February 12, 2008.  (R.177, Memorandum; R.178, Order)  Plaintiffs' 
timely appeal followed on March 4, 2008.  (R.179, Notice of Appeal)
B.	Statement of the Facts
     Lynette Barrett, WT Melton, and Treva Nickens are current and former 
white employees of the Whirlpool facility in LaVergne, Tennessee.  (R.82, Third 
Amended Complaint, at 1<3>) Barrett began working as an hourly day-shift 
employee at the LaVergne plant in October 1984, and remains employed there to 
this day.  (R.152-2, Barrett Aff., at 1)  Melton worked as an hourly second-shift 
employee at the LaVergne plant for about 12 years, from January 1995 through 
approximately July 2007.  (R.154-2, Melton Aff., at 1)  Nickens worked as an 
hourly day-shift employee at the LaVergne plant for approximately 25 years, from 
May 1983 until approximately October 30, 2005.  (R.153-2, Nickens Aff., at 1)
     Barrett, Melton, and Nickens testified that, during the course of their 
employment at the LaVergne plant, they were subjected to verbal abuse, threats, 
and hostile treatment on the basis of their association with and advocacy on behalf 
of their black coworkers.  (R.82, Third Amended Complaint, at 2, 4)  All three 
testified that they maintained workplace friendships with a number of black 
coworkers, and, in at least one instance, socialized with them outside of the 
workplace as well.  Barrett testified that she was friendly with Lisa Majors both in 
and outside the workplace, and with Helen Lust and Walter Brown at work.  
(R.152-3, Barrett Dep., at 73-75)  Barrett also related that she had helped Majors 
and Brown with typing and editing their rsums, coaching them for interviews, 
and recommending them for promotional opportunities.  (Id. at 74-75)  Melton 
testified that most of her friends at Whirlpool were black and that she ate lunch 
with an African American coworker named "Bee" "most everyday."  (R.154-4, 
Melton Dep. vol. 2, at 103-04)  Nickens testified that she was friendly with a black 
coworker named Henry Beasley at work "all the time," but that they did not 
socialize outside of work, and also mentioned "hang[ing] with" another black 
coworker, Linda Hatcher.  (R.153-3, Nickens Dep., at 21, 85)
     Barrett, Melton, and Nickens testified in their depositions that they heard the 
word "nigger" and other racial slurs used by white employees around the 
LaVergne facility.  (R.152-3, Barrett Dep., at 37, 43, 52; R.154-4, Melton Dep. 
vol. 2, at 27, 46, 93; R.153-3, Nickens Dep., at 78-79)  Barrett was present when 
Dale Travis, a notorious user of racial epithets at the LaVergne facility, told 
another white employee that Majors "will be an uppity nigger now," and again 
when he stated loudly of Lust that "[t]he nigger bitch will get what's coming to 
her."  (R.152-3, Barrett Dep., at 43, 37)  Barrett also testified that she saw racist 
graffiti in the women's bathroom sometime in the 1990s, including the word 
"KKK" and the word "nigger" written over and over again in an inverted triangle, 
and more racist graffiti, including "KKK" and the image of a hangman's noose, 
written on the maintenance cart of a black employee, Pierre Hill, in 2006.  (Id. at  
52-54, 81)  Barrett was also present when a white employee, on hearing that a 
black employee was taking off work for Martin Luther King Day, remarked, 
"Well, why can't we have a James Earl Ray Day?"  (Id. at 105)
     Melton testified that Travis regularly called people "niggers" and said, "May 
the Klan be with you," or "Missed you ladies at the Klan meeting last night."  She 
also testified that it was "common knowledge that it did no good to complain [to 
management] because the ones that could do something about it refused to[.]"  
(R.154-4, Melton Dep. vol. 2, at 26-27, 97)  Melton also testified that she had 
heard a supervisor call another employee "one of them lazy niggers" (id. at 46), 
and a black coworker told her that he heard a supervisor use the term "nigger 
lover" to describe white employees who were "friends with the blacks."  (Id. at 93-
95)  Melton also stated in her deposition that she heard the "James Earl Ray Day" 
comment from both coworkers and supervisors, as well as jokes about a 
"watermelon day."  (Id. at 96)  Nickens testified that she heard racial jokes and 
slurs on a regular basis from several employees in the lunchroom in 2004-2005.  
(R.153-3, Nickens Dep., at 24-27)  She also testified that another employee 
brought it to her attention in 2001 or 2002 that Travis "used the word 'nigger' a lot 
and said 'those fucking niggers' all the time," and that no disciplinary action was 
taken against him.  (Id. at 35)
     Barrett, Melton, and Nickens all testified that they were very upset by the 
use of racial slurs in the workplace and found them extremely objectionable.  
(R.152-3, Barrett Dep., at 37-38; R.154-4, Melton Dep. vol. 2, at 27; R.153-3, 
Nickens Dep., at 22-25)  All three also testified that, when they complained about 
the slurs or other acts of discrimination against their African American coworkers, 
certain white coworkers responded by targeting them for harassment, while their 
superiors either acquiesced or did nothing in response.  Barrett testified that, when 
she confronted Travis about his use of racial slurs, he told her that "I've got a nine-
millimeter and I'll come visit you."  (R.152-3, Barrett Dep., at 84)  Barrett also 
testified that a white coworker, Wendy Beam, would refuse to sit next to Majors in 
weekly group meetings and would reassign work tasks from Barrett and Majors to 
other white employees when Barrett and Majors were partnered together, even 
though the initial assignments had been made by Beverly Gordon, the group's 
actual supervisor.  (Id. at 61-62)  Barrett reported the reassignments to Gordon, but 
Gordon responded that Beam "probably just didn't realize she was doing it" and 
took no further action.  (Id. at 62-63)  Still other white coworkers, according to 
Barrett, turned their backs on her and ignored her if they saw her greet black 
employees working on the line.  (Id. at 58)
     Melton testified that she was known at the LaVergne facility as someone 
who regularly "stood up for people that had no one to stand up for them."  (R.154-
4, Melton Dep. vol. 2, at 24)  Melton once escorted a Somalian employee to the 
medical department after she injured an eye on the line, and her supervisor told 
Melton she was "no good to him" and refused to talk to her afterwards.  (R.154-3, 
Melton Dep. vol. 1, at 30)  Melton testified that, after she underwent two surgeries 
to correct an injury in her right arm and was released to return to work, she was 
"treated differently from a lot of other people who had surgeries" - she was taken 
out of the lab where she had worked previously and put into a more strenuous 
position on the line rather than a less strenuous office position such as those more 
commonly offered to employees in her situation, and her pay was cut.  (Id. at 27-
29)  Melton also testified that, on one occasion after lunch with her friend Bee, a 
white coworker asked her, "How could you stand the smell?"  (R.154-4, Melton 
Dep. vol. 2, at 103-04)
     Nickens testified that her harassment began as early as 1988 when a white 
employee named Jim Jones came up to her, red-eyed, threatening to kill her and to 
blow up the plant, and "looking for Linda Hatcher because he emphasized that I 
was not to hang with her because she was [a] . . . nigger."  (R.153-3, Nickens Dep., 
at 15, 22)  When Nickens responded that she didn't know where Hatcher was, 
Jones called Nickens a liar and grabbed her by the neck.  (Id. at 15-16)  Nickens 
testified that she ran away from Jones, who had already told her on several 
occasions that "I don't think you should be hanging around niggers."  (Id. at 16)  
As a result of the incident, Whirlpool suspended and terminated both Jones and 
Nickens, although Nickens was eventually brought back to work six months later 
after she filed a grievance.  (Id. at 20-21)  In 2005, Nickens was approached by two 
white coworkers who told her about a conversation they had had recently with 
Travis, who had been fired from Whirlpool for unrelated reasons, in which Travis 
had said that Nickens was "slandering his name" at Whirlpool and that "wasn't 
nothing but assault and battery warrant for $150."  (Id. at 38-39)  According to 
Nickens, her coworkers told her that Travis "had sent word [to] make sure that 
Treva Nickens heard that comment."  (Id. at 71)  
     Nickens also testified that, "if you hung around blacks, you were outcasted." 
(R.153-3, Nickens Dep., at 42)  She testified that, after she put in for a posted job, 
the company tried to delist it until the union forced it to relist it.  (Id. at 42-43)  On 
another occasion, there was a posting for a promotion on which Nickens planned to 
bid, and when her white supervisor found out he told her that she "would never get 
the job, that he would take it down before [she] got the job."  (Id. at 60-61)  
Nickens also testified that she was told "probably once a week" by white 
coworkers, and at least once by a white manager, that she needed to "stay with her 
own kind," particularly with reference to her friendship with Beasley.  (Id. at 47, 
56)
     Barrett, Melton, and Nickens brought suit in January of 2006, claiming that 
they "have been and continue to be injured by a gauntlet of racial discrimination, 
verbal abuse, and hostile treatment."  (R.82, Third Amended Complaint, at 2)  
They allege that they, as "white employees who do not disparage or minimize 
black employees, have been and continue to be adversely affected by the racially 
hostile environment at Whirlpool and, consequently, by the violation of their 
personal right to work in an environment free of racial discrimination."  (Id.)  They 
also allege that "[b]lack Whirlpool employees and white Whirlpool employees 
who refuse to participate in racially hostile conduct have been subjected to a 
hostile environment permeated with racial hatred, slurs, epithets, and stereotypes," 
and that "Whirlpool has done little or nothing to confront and eliminate this 
racism."  (Id. at 2-3)
C.	District Court's Decision
     With respect to the plaintiffs' Title VII hostile work environment claims, the 
district court began by noting that "it is not necessary [] for a plaintiff to 
demonstrate 'strict membership' in a protected class to prevail on a Title VII 
claim."  (R.177, Memorandum ("Mem."), at 6 (quoting Wanchick v. Great Lakes 
Health Plan, Inc., 6 Fed. Appx. 252, 266 (6th Cir. 2001)))  The court observed that, 
under this Court's precedent, Title VII protects "those individuals who, though not 
members of a protected class, are nevertheless 'victims of discriminatory animus 
toward third persons with whom the individuals associate.'"  (Id. (quoting Tetro v. 
Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc., 173 F.3d 988, 
994 (6th Cir. 1999)))  The court explained that such individuals "may pursue a 
Title VII claim if they were discriminated against either on the basis of their 
association with protected class members, . . . or on the basis of their advocacy on 
behalf of protected class members," and noted that the plaintiffs in this case assert 
both the associational and advocacy theories of Title VII coverage.  (Id. (citing 
Tetro, 173 F.3d at 994; Johnson v. Univ. of Cincinnati, 215 F.3d 561, 575 (6th Cir. 
2000); and Winston v. Lear-Sigler, Inc., 558 F.2d 1266, 1270 (6th Cir. 1977)))
     Beginning with Barrett's hostile work environment claim, the district court 
found, in relevant part, that summary judgment was warranted both because she 
failed to establish that she was a member of a protected class and because she did 
not "raise[] a genuine issue of fact as to the existence of an objectively hostile 
work environment."  (R.177, Mem., at 17)  The court acknowledged that this Court 
"declined to read in [to Title VII] a requirement that association requires a familial 
or intimate relationship."  (Id. at 14 (citing Johnson, 215 F.3d at 574))  The court 
stated, "[u]ltimately, the import of Tetro is that a white Title VII plaintiff must 
demonstrate an association with a member of a protected class, but that 
relationship need not necessarily be familial or intimate."  (Id. at 15)  The court 
concluded, however, that in this case Barrett did not "raise[] a genuine issue of fact 
as to whether her relationships with her black co-workers at the La Vergne Facility 
constitute an association sufficient to entitle her to bring a hostile work 
environment claim."  (Id.)  
     The court stated that "Barrett argues that she befriended a handful of her 
black co-workers and describes several black co-workers as 'friends,'" but noted 
that "[s]he provides no evidence [] that those friendships constituted anything other 
than the casual, friendly relationships that commonly develop among co-workers 
but that tend to be limited to the workplace."  (R.177, Mem., at 15)  The court 
observed, "Barrett has not indicated that she socializes with any of her black co-
workers outside of the workplace, that their families know each other, that they 
mutually provide the type of support and companionship that one would expect in 
a friendship that exists beyond the boundaries of one's workplace."  (Id.)  
Accordingly, the court found, "[w]hile the sincerity of Barrett's claim is not in 
doubt, such standard workplace familiarity and collegiality does not establish an 
association for the purposes of bringing a hostile work environment claim.  If that 
were the case, any white co-worker who maintained a passing friendly relationship 
with a black-coworker would have grounds for such a claim, in which case the rule 
requiring a white plaintiff to demonstrate an association would serve little 
purpose."  (Id. at 16)
     The district court also noted Barrett's arguments that she had advocated on 
behalf of members of a protected class under Title VII when she assisted black co-
workers in preparing rsums, recommended them for job openings, and 
complained about racist conduct she observed at the LaVergne facility.  (R.177, 
Mem., at 16)  The court declined to address the issue of whether such actions 
constituted protected advocacy, however, on the grounds that "the incidents Barrett 
complains of do not constitute severe and pervasive harassment under any 
circumstances."  (Id. at 16-17)  The court found that "the incidents about which 
Barrett complains were relatively sporadic and isolated and were not, by and large, 
directed at her, and thus do not permit the inference that they created an objectively 
hostile work environment."  (Id. at 17)
     With respect to Melton's and Nickens' hostile work environment claims, the 
district court essentially reached the same conclusion.  The court found that "one 
cannot reasonably infer that [Melton's] relationships [with her black coworkers] 
rose beyond the level of everyday workplace collegiality," and that "such 
conclusory allegations of association are insufficient to enable Melton to bring a 
hostile work environment claim under an association theory."  (R.177, Mem., at 
20)  The court reached the same conclusion with respect to Nickens, finding that 
"there is scant evidence that [Nickens' workplace] friendships constituted anything 
beyond common workplace collegiality," and specifically noting that "Nickens 
acknowledged in her deposition that she does not socialize with Beasley outside of 
work."  (Id. at 26)  The court also found no need to reach Melton's and Nickens' 
claims of advocacy on behalf of protected class members for the same reasoning as 
it gave regarding Barrett's claim: their allegations "do not create a genuine issue of 
fact as to whether [they] suffered severe and pervasive harassment."  (Id. at 21, 27)

                           SUMMARY OF ARGUMENT

     This Court has held repeatedly that a plaintiff may state a claim of racial 
discrimination or harassment under Title VII based on her association with 
members of a different race.  Neither this Court nor any other has held that a 
plaintiff must establish a particular degree of association with members of a 
different race, or that she must associate with them outside of the workplace, in 
order to establish that she was harassed because of her race within the meaning of 
Title VII.  In this case, there is evidence that the three white plaintiffs were 
targeted for harassment in explicitly racial terms because of their association with 
black coworkers in the workplace.  This evidence is sufficient to support a finding 
that the plaintiffs were subjected to a hostile work environment because of their 
association with these black coworkers.  The evidence is also adequate to support a 
finding that they were targeted for harassment based on their advocacy on behalf of 
their black coworkers, which could, in turn, support either a hostile work 
environment claim or a retaliation claim under Title VII's "opposition clause."
     The district court also erred insofar as it required the plaintiffs to show that 
the harassment to which they were subjected was both severe and pervasive in 
order to establish a hostile work environment claim under Title VII.  The standard, 
as articulated by the Supreme Court and by this Court, is in the disjunctive, "severe 
or pervasive," and the difference is a significant one.  The district court also 
appears to have minimized the significance of the highly offensive racial epithets, 
graffiti, and other actions targeted at the plaintiffs in this case in evaluating 
whether summary judgment was appropriate.

                           ARGUMENT

I.	A PLAINTIFF WHO IS TARGETED FOR HARASSMENT BECAUSE OF 
HER ASSOCIATION WITH COWORKERS OF A DIFFERENT RACE 
MAY ESTABLISH A CLAIM FOR A RACE-BASED HOSTILE WORK 
ENVIRONMENT UNDER TITLE VII WITHOUT ESTABLISHING ANY 
PARTICULAR DEGREE OF CLOSENESS TO HER COWORKERS.

     Section 703(a) of Title VII makes it unlawful for an employer to 
"discriminate against any individual with respect to his compensation, terms, 
conditions, or privileges of employment, because of such individual's race."  42 
U.S.C.  2000e-2(a)(1).  As this Court observed in Tetro, 173 F.3d at 994-95, both 
the legislative history of the statute and the EEOC's consistent interpretation of 
this provision reflect that "because of race" is to be interpreted broadly, so as to 
give effect to the Congressional mandate to eradicate discrimination.  Accordingly, 
both this Court and the EEOC have reached the conclusion that Title VII's 
prohibition of race discrimination, including racial harassment, includes 
discrimination based on association with individuals of a different race.  See id. at 
994 ("A white employee who is discharged because his child is biracial is 
discriminated against on the basis of his race, even though the root animus for the 
discrimination is a prejudice against the biracial child."); Johnson, 215 F.3d at 574 
("Simply put, this Court has now spoken that in order to state a cognizable claim 
under Title VII, the plaintiff . . . need only allege that he was discriminated 
[against] on the basis of his association with a member of a recognized protected 
class."); Section 15, Race & Color Discrimination, 2 EEOC Compliance Manual 
15-5 (2006), http://www.eeoc.gov/policy/docs/race-color.html (interpreting Title 
VII's prohibition of race discrimination to encompass "discrimination against an 
individual because of his/her association with someone of a particular race").
     The Second, Fifth, Seventh, Ninth, and Eleventh Circuits have reached the 
same conclusion.  See, e.g., Holcomb v. Iona Coll., ___ F.3d ___, 2008 WL 
852129, at *8 (2d Cir. Apr. 1, 2008) ("We . . . hold that an employer may violate 
Title VII if it takes action against an employee because of the employee's 
association with a person of another race."); Deffenbaugh-Williams v. Wal-Mart 
Stores, Inc., 156 F.3d 581, 589 (5th Cir. 1998), vacated in part on other grounds by 
Williams v. Wal-Mart Stores, Inc., 182 F.3d 333 (5th Cir. 1999) ("Title VII 
prohibits discrimination in employment premised on an interracial relationship."); 
Drake v. Minn. Mining & Mfg. Co., 134 F.3d 878, 884 (7th Cir. 1998) (noting 
support for associational race discrimination claims where "the alleged 
discrimination was because of the employee's race, as  2000e-2(a) requires, in 
conjunction with the employee's association with the individual of another race"); 
McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1118 (9th Cir. 2004) (observing that 
"[h]ostile conduct that attempts to sever or punish only those friendships that are 
interracial" may create an actionable hostile work environment); Parr v. Woodmen 
of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986) ("Where a plaintiff 
claims discrimination based upon an interracial marriage or association, he alleges, 
by definition, that he has been discriminated against because of his race.").
     The district court in this case, while acknowledging the holding of Tetro, 
required the plaintiffs to show that their friendships with their black coworkers 
were more than "the casual, friendly relationships that commonly develop among 
co-workers but that tend to be limited to the workplace."  (R.177, Mem., at 15)  In 
so doing, the district court imposed an unduly rigid standard that has no support in 
the law and makes no sense in the context of determining whether a plaintiff has 
been targeted for racial harassment.
     In order to establish a Title VII claim based on a racially hostile work 
environment, a plaintiff must show, inter alia, that she was subjected to unwelcome 
harassment based on race.  See, e.g., Hafford v. Seidner, 183 F.3d 506, 512 (6th 
Cir. 1999).  A Title VII plaintiff is free to use any admissible evidence to 
demonstrate that hostile words or actions directed against her in the workplace 
were racially motivated, and neither this Court nor any other jurisdiction requires a 
plaintiff to adduce a particular type of evidence, such as a certain degree of 
association, in support of such a claim.  Indeed, the existing case law is to the 
contrary.  See, e.g., Johnson, 215 F.3d at 574 (under Tetro, "in order to state a 
cognizable claim under Title VII, the plaintiff . . . need only allege that he was 
discriminated [against] on the basis of his association with a member of a 
recognized protected class"); Drake, 134 F.3d at 884 ("[T]he key inquiries should 
be whether the employee has been discriminated against and whether that 
discrimination was 'because of' the employee's race[;] . . . we do not believe that 
an objective 'degree of association' is relevant to this inquiry."); Parr, 791 F.2d at 
892 (citing case law involving both intimate and non-intimate interracial 
associations, and noting the EEOC's consistent position that "an employer who 
takes adverse action against an employee or a potential employee because of an 
interracial association violates Title VII").
     The evidence in this case provides a striking and apt illustration of precisely 
why the "degree of association" between coworkers, and, specifically, whether 
they socialize outside of the workplace, may be entirely irrelevant to whether a 
given plaintiff has been targeted for harassment because of her association with 
members of a different race.  There is evidence in the record in this case that 
Nickens was told repeatedly to "stay with her own kind" and had her life 
threatened for "hanging around niggers," while Melton was told that white 
employees who were friendly with their black coworkers were called "nigger 
lovers" and Barrett had work taken away from her when she was paired with a 
black teammate.  Whether individuals like Dale Travis knew, or cared, whether the 
plaintiffs in this case socialized with their black coworkers outside of work is 
irrelevant.  The point is that the harassers in this case saw the plaintiffs at work 
associating with individuals of a different race, and that was enough to incur the 
harassers' wrath and to have the plaintiffs branded as "nigger lovers" and targets 
for harassment.  Because the degree of association plaintiffs had with black co-
workers was sufficient to provoke hostile treatment, it was enough to support their 
claim that they were harassed because of their race.
     We note that this associational issue with respect to the hostilities directed at 
the plaintiffs themselves is different from the issue of whether a plaintiff has 
constitutional standing to bring suit.  The three plaintiffs in this case 
unquestionably have constitutional standing to raise a claim under Title VII 
because they allege that they have been subjected to a hostile work environment on 
the basis of their race and that they have been injured as a result.  This is a different 
legal issue from the question of whether a plaintiff has constitutional standing to 
assert a claim of discrimination against individuals of a different race, addressed by 
the Supreme Court in Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205 
(1972), and by this Court in EEOC v. The Bailey Co., 563 F.2d 436 (6th Cir. 
1977).  In the constitutional standing cases, the issue is whether a plaintiff of one 
race has standing to bring suit as a "person claiming to be aggrieved" under Title 
VII based on discrimination targeted at individuals of another race; the usual 
theory is deprivation of benefits based on lack of association with racial minorities 
in the workplace.  See, e.g., Bailey Co., 563 F.3d at 453 (holding that "the 
definition of 'a person claiming to be aggrieved' under Title VII includes a white 
person . . . who may have suffered from the loss of benefits from the lack of 
association with racial minorities at work"); Leibovitz v. N.Y. City Transit Auth., 
252 F.3d 179, 186-87 (2d Cir. 2001) (discussing cases); Anjelino v. N.Y. Times 
Co., 200 F.3d 73, 90-91 (3d Cir. 1999) (reviewing cases).  The EEOC has long 
taken, and continues to take, the position that a plaintiff who can meet the 
requirements of Article III standing may file a charge and bring suit alleging 
discrimination against individuals of a different race, so long as she can 
demonstrate sufficient harm to herself.  See, e.g., Bailey Co., 563 F.3d at 442; 
EEOC v. Miss. Coll., 626 F.2d 477, 481 (5th Cir. 1980) (alleging that white 
plaintiff "can assert a charge of race discrimination against the College because she 
has standing to assert discrimination that affects her 'working environment'").<4>
     The plaintiffs' advocacy on behalf of their black coworkers could also 
support a hostile work environment claim or a retaliation claim if they establish 
that they were harassed or discriminated against because of that conduct.  This 
Court held in Johnson that a plaintiff may state a claim "for  [race] discrimination 
based upon his advocacy on behalf of minorities because the discrimination would 
be 'because of such individual's race,' where the race of the minorities for which 
he was advocating would be 'imputed'" to the plaintiff.  215 F.3d at 575 (citing 
Tetro, 173 F.3d at 995).  The district court in this case declined to reach the 
question of whether the plaintiffs were able to show membership in a protected 
class based on this Court's "advocacy" theory of association because it concluded 
that there was no actionable hostile work environment in any case.  In the 
Commission's view, when the evidence in the record is viewed in the light most 
favorable to the plaintiffs, as required on summary judgment, there can be little 
question that all three plaintiffs engaged in conduct that would qualify either as 
"advocacy" sufficient to bring them within Title VII's "because of race" 
requirement or as "protected conduct" within the meaning of section 704(a)'s 
prohibition on retaliation.
     In most cases, conduct that would constitute advocacy on behalf of a 
protected class, whether complaining about discrimination or refusing to go along 
with discriminatory policies, would sustain a separate claim for retaliation.  See 
Section 8, Retaliation, 2 EEOC Compliance Manual 8-4-6 (1998), 
http://www.eeoc.gov/policy/docs/retal.html.  In this case, the conduct of all three 
plaintiffs, who complained openly and repeatedly either to their coworkers, to 
management, or to both about the racial hostility at the LaVergne facility, fits 
comfortably within either the "opposition" clause of section 704(a) of Title VII, 42 
U.S.C.  2000e-3(a), or this Court's "advocacy" theory of association with respect 
to a hostile work environment.  See Johnson, 215 F.3d at 575 ("the fact that 
Plaintiff has not alleged discrimination because of his race is of no moment 
inasmuch as it was a racial situation in which Plaintiff became involved - 
Plaintiff's advocacy on behalf of women and minorities in relation to Defendant's 
alleged discriminatory hiring practices - that resulted in Plaintiff's discharge from 
employment.") (emphasis in original); id. at 579 (noting with approval that the 
EEOC "has identified a number of examples of 'opposing' conduct which is 
protected by Title VII, including complaining to anyone (management, unions, 
other employees, or newspapers) about allegedly unlawful practices; refusing to 
obey an order because the worker thinks it is unlawful under Title VII; and 
opposing unlawful acts by person other than the employer").

II.	RACIAL HARASSMENT IS ACTIONABLE UNDER TITLE VII IF IT IS 
SUFFICIENTLY SEVERE OR PERVASIVE TO ALTER THE 
CONDITIONS OF THE VICTIM'S EMPLOYMENT.

     As this Court has repeatedly observed, the Supreme Court held in Harris v. 
Forklift Systems, Inc., 510 U.S. 17, 21 (1993), that Title VII is violated "[w]hen 
the workplace is permeated with 'discriminatory intimidation, ridicule, and insult 
. . . that is sufficiently severe or pervasive to alter the conditions of the victim's 
employment and create an abusive working environment.'"  See, e.g., Hawkins v. 
Anheuser-Busch, Inc., ___ F.3d ___, 2008 WL 423442 (6th Cir. Feb. 19, 2008), at 
*8 (observing that Harris uses "the phrase 'severe or pervasive' as opposed to 
'severe and pervasive'");  Williams v. Gen. Motors Corp., 187 F.3d 553, 560 (6th 
Cir. 1999) (characterizing the "severe or pervasive test" as "Harris's core 
holding").  With respect to the hostile work environment claims of all three 
plaintiffs in this case, however, the district court dismissed them on the grounds 
that the incidents in questions "do not constitute severe and pervasive harassment."  
(R.177, Mem., at 16-17, 21, 27) (emphasis added).
     The district court's use of the conjunctive "and" rather than the disjunctive 
"or" makes an important difference in how the case is analyzed.  See Harvill v. 
Westward Commc'ns, LLC, 433 F.3d 428, 435 (5th Cir. 2005) (observing that "the 
requirement that a plaintiff establish that reported abusive conduct be both severe 
and pervasive in order to be actionable imposes a more stringent burden on the 
plaintiff than required by law").  As the EEOC and the courts have repeatedly 
noted, the concepts of severity and pervasiveness are complementary and, in a 
sense, inversely related for the purposes of hostile work environment analysis: the 
more severe the conduct, the lesser the requisite showing of pervasiveness, and 
vice versa.  See, e.g., Lauderdale v. Tex. Dep't of Criminal Justice, 512 F.3d 157, 
163 (5th Cir. 2007) (observing that "the required showing of severity or 
seriousness of the harassing conduct varies inversely with the pervasiveness or 
frequency of the conduct" (internal citation and quotation marks omitted); EEOC 
v. Nat'l Educ. Ass'n, Alaska, 422 F.3d 840, 847 (9th Cir. 2005) ("The rule is that 
the required showing of severity or seriousness of the harassing conduct varies 
inversely with the pervasiveness or frequency of the conduct.") (internal citation 
and quotation marks omitted); Cerros v. Steel Techs., Inc., 398 F.3d 944, 951 (7th 
Cir. 2005) (recognizing that "pervasiveness and severity are, to a certain degree, 
inversely related; a sufficiently severe episode may occur as rarely as once, while a 
relentless pattern of lesser harassment that extends over a long period of time also 
violates the statute") (internal citation and quotation marks omitted); EEOC Policy 
Guidance on Current Issues of Sexual Harassment, N-915-050, 2 EEOC 
Compliance Manual (BNA) (1990) ("the more severe the harassment, the less need 
to show a repetitive series of incidents").<5>
     The district court thus appears to have relied on the wrong legal standard 
when it dismissed the incidents experienced by all three plaintiffs as sporadic, 
isolated, and targeted at others.  Indeed, this Court has reiterated on several 
occasions that harassing acts of which a plaintiff becomes aware during the period 
of his or her employment are relevant to the question of whether she suffered a 
hostile work environment, regardless of whether the acts were directed at her or 
occurred in her presence.  See Hawkins, 2008 WL 423442, at *10-11 (citing 
cases).  As this Court pointed out in Hawkins:
[M]ore weight should be given to acts committed by a serial harasser 
if the plaintiff knows that the same individual committed offending 
acts in the past.  This is because a serial harasser left free to harass 
again leaves the impression that acts of harassment are tolerated at the 
workplace and supports a plaintiff's claim that the workplace is both 
objectively and subjectively hostile.

Id. at *11.  In light of the conduct of Dale Travis and other repeat harassers 
reflected in the record in this case, the district court's conclusion seems particularly 
lacking in support.
     Moreover, while the district court stated in passing that it was mindful of 
this Court's language in Jackson v. Quanex Corp., 191 F.3d 647, 662 (6th Cir. 
1999), cautioning district courts against "minimiz[ing] proof of persistent racial 
slurs and graffiti," the court seems to have gone on to do just that.  For example, 
the record reflects that repeated references were made, in the plaintiffs' presence, 
to the Ku Klux Klan and to inquiries about their attendance at Klan meetings.  
These are the kinds of comments that, as this Court put it in Quanex, are more than 
"merely offensive."  Throughout its history, the Klan has been known not only for 
targeting African Americans for violence, but also for perpetrating and celebrating 
violence against whites whom it deemed sympathizers with the cause of African 
Americans or other minorities.  See, e.g., Stephan Thernstrom & Abigail 
Thernstrom, America in Black and White 153 (1997) (describing the murder of 
civil rights activists Michael Schwerner and Andrew Goodman, who were white, 
and James Chaney, who was black, by the Klan in Mississippi in 1964); Courtland 
Milloy, Hate Is Always In Style At A Gathering of the Klan, Washington Post, 
Oct. 18, 2006, at B1 (describing attendance at a 2006 Klan gathering at Harper's 
Ferry "marking the 147th anniversary of [white] abolitionist John Brown's ill-fated 
raid on the federal arsenal there.  The Klan had come to celebrate Brown's being 
captured and hanged 'by his greasy neck,' as one Klansman put it.").  These were 
not insignificant comments, and they cannot be deemed to have been "targeted at 
others" simply because they reference the Klan - particularly when they were 
made directly to the plaintiffs!
     The record also reflects that the subjectively and objectively offensive term 
"nigger lover" was used to describe white employees who associated with black 
employees at the LaVergne facility, and that white employees who maintained 
workplace friendships with black employees were repeatedly told to "stay with 
their own kind" and were in some instances directly threatened with weapons or 
physically menaced by white harassers.  The district court appears to have given 
short shrift to this evidence in concluding that none of the plaintiffs in this case had 
adduced sufficient evidence of an actionable hostile work environment to survive 
summary judgment.
     In light of the factual similarities between the hostile work environment in 
this case and that in Quanex, one passage from this Court's decision in that case 
bears repeating here: 
The evidence demonstrates that Quanex management adopted the 
attitude that everyone knew the plant was a 'redneck' environment, 
and that therefore, racially offensive conduct taking place there was 
. . . conduct African-American employees had to accept as part of life 
at Quanex.  There could hardly be a response more insensitive or 
insulting, to African Americans and Caucasians alike.

191 F.3d at 666.  The same holds true in this case, only the racially offensive 
conduct was targeted both at African American employees and at white employees 
who were deemed to be too friendly with their African American coworkers.

                               CONCLUSION

     For the foregoing reasons, the judgment of the district court should be 
reversed and the case remanded for further proceedings.
     
Respectfully submitted,

RONALD S. COOPER
General Counsel

VINCENT J. BLACKWOOD
Acting Associate General Counsel

______________________________
ELIZABETH E. THERAN
Attorney
EQUAL EMPLOYMENT 
OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W.
Washington, D.C. 20507
(202) 663-4720
elizabeth.theran@eeoc.gov

                        CERTIFICATE OF COMPLIANCE

     This brief complies with the type-volume limitations of Fed. R. App. P. 
29(d) and 32(a)(7)(B) because it contains 6,370 words, excluding the parts of the 
brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
     This brief complies with the typeface requirements of Fed. R. App. P. 
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has 
been prepared in a proportionally spaced typeface using Microsoft Word 2003 in 
Times New Roman 14 point.
     
     

_________________________________
Elizabeth E. Theran
Attorney
EQUAL EMPLOYMENT 
OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W.
Washington, D.C. 20507
(202) 663-4720
elizabeth.theran@eeoc.gov

Dated:  May 7, 2008

                         CERTIFICATE OF SERVICE

     I, Elizabeth E. Theran, hereby certify that I filed one original and six copies 
of the foregoing brief with this Court this 7th day of May, 2008, by overnight 
delivery, postage pre-paid.  I also certify that I served two copies of the foregoing 
brief this 7th day of May, 2008, by overnight delivery, postage pre-paid, to the 
following counsel of record:

Counsel for Plaintiffs/Appellants:
David W. Sanford, Esq.
Sanford, Wittels & Heisler
1666 Connecticut Ave., NW, Ste. 310
Washington, DC 20009
(202) 742-7780

Counsel for Defendant/Appellee:
Adam C. Wit, Esq.
Littler Mendelson
200 N. LaSalle St., Ste. 2900
Chicago, IL 60601
(312) 372-5520

						
________________________________
Elizabeth E. Theran
Attorney
EQUAL EMPLOYMENT 
OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W.
Washington, D.C. 20507
(202) 663-4720
elizabeth.theran@eeoc.gov

***********************************************************************
<<FOOTNOTES>>

<1> We take no position with respect to any other issue presented in this appeal.

<2> Citations to the record are abbreviated "R." and refer to the district court docket 
entry number.  Pincites refer to the internal pagination of the document (e.g., 
deposition transcript pages or affidavit pages), not PACER pagination, except 
where the document in question is otherwise unpaginated.

<3> The Third Amended Complaint was the operative complaint at the time of the 
motions for summary judgment in this case.

<4> The Commission does not take a position in this case on whether or not the 
plaintiffs have met the requirements of Article III standing sufficiently to bring suit 
challenging the race-based hostile work environment directed at their black 
coworkers.

<5> At http://www.eeoc.gov/policy/docs/currentissues.html.