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OPINION ON REHEARING EN BANC
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
------------------------------------------------*
LISA L. OCHELTREE,
Plaintiff-Appellee,
v.
SCOLLON PRODUCTIONS,
INCORPORATED,
Defendant-Appellant.
LAWYERS' COMMITTEE FOR CIVIL
RIGHTS UNDER LAW; ASIANNo. 01-1648
AMERICAN LEGAL DEFENSE AND
EDUCATION FUND; PUBLIC JUSTICE
CENTER; WOMEN'S LAW CENTER OF
MARYLAND, INCORPORATED; D.C.
EMPLOYMENT JUSTICE CENTER;
WOMEN'S LAW PROJECT; AMERICAN
CIVIL LIBERTIES UNION WOMEN'S
RIGHTS PROJECT; EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Amici Supporting Appellee.
------------------------------------------------*
Appeal from the United States District Court for the District of South Carolina, at Columbia. Matthew J. Perry, Jr., Senior District Judge. (CA-96-1215)
Argued: February 25, 2003
Decided: July 18, 2003
Before WILKINS, Chief Judge, and WIDENER, WILKINSON, NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, MOTZ, 6525 35 10 TRAXLER, KING, GREGORY, and SHEDD, Circuit Judges.
Affirmed in part and reversed in part by published opinion. Judge
Michael wrote the opinion, in which Chief Judge Wilkins, Judge Wil-
kinson, Judge Luttig, Judge Motz, Judge Traxler, Judge King, Judge
Gregory, and Judge Shedd joined. Judge Niemeyer wrote a separate
opinion, concurring in the judgment. Judge Williams wrote a separate
opinion, dissenting in part and concurring in the judgment in part, in
which Judge Widener joined.
____________________________________________________________
COUNSEL
ARGUED: Charles Franklin Thompson, Jr., TALLY, MALONE,
THOMPSON & GREGORY, Columbia, South Carolina, for Appel-
lant. William Elvin Hopkins, Jr., MCCUTCHEN, BLANTON,
RHODES & JOHNSON, L.L.P., Columbia, South Carolina, for
Appellee. Louis Lopez, Office of General Counsel, EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION, Washington,
D.C., for Amicus Curiae Commission. ON BRIEF: Michael D.
Malone, TALLY, MALONE, THOMPSON & GREGORY, Colum-
bia, South Carolina, for Appellant. Nicholas M. Inzeo, Acting Deputy
General Counsel, Philip B. Sklover, Associate General Counsel, Lor-
raine C. Davis, Assistant General Counsel, Office of General Coun-
sel, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Washington, D.C., for Amicus Curiae Commission. Michael L. Fore-
man, Audrey A. Jordan, LAWYERS' COMMITTEE FOR CIVIL
RIGHTS UNDER LAW, Washington, D.C., for Amici Curiae Com-
mittee, et al. Wendy N. Hess, Murnaghan Appellate Advocacy Fel-
low, PUBLIC JUSTICE CENTER, Baltimore, Maryland, for Amici
Curiae Center, et al.
____________________________________________________________
OPINION
MICHAEL, Circuit Judge:
A jury found that Lisa Ocheltree, a plaintiff suing under Title VII
of the Civil Rights Act of 1964, was the victim of severe or pervasive
sex-based harassment in her workplace at Scollon Productions, Inc.
We granted en banc review to consider whether the district court
2
properly denied the company's motion for judgment as a matter of
law. Because there is a "legally sufficient evidentiary basis," Fed. R.
Civ. P. 50(a)(1), for the jury's finding that Ocheltree proved the ele-
ments of her claim, we affirm the judgment insofar as it awards com-
pensatory damages. However, because there is no evidence that
Scollon Productions had the knowledge required for liability in puni-
tive damages, we reverse the award of punitive damages.
I.
Scollon Productions makes costumes, including ones depicting uni-
versity mascots and cartoon characters. The company has about fifty
employees and is located in White Rock, South Carolina. J.A. 283.
The only persons with formal management authority at the company
are Bill Scollon, the president, and Ellery Locklear, the senior vice
president. J.A. 157, 282, 288. The company's production facilities
include a sewing room and what is called the production shop. The
production shop itself is fairly small, with enough work tables to
accommodate about a dozen employees, including the shop supervi-
sor. J.A. 109-11, 211-12, 216, 287. Bill Scollon and Locklear have
their offices near the production facilities. J.A. 216.
Ocheltree was employed at Scollon Productions for eighteen
months, from February 1994 until August 1995. She worked in the
production shop making shoes. Ocheltree was the only female
employee in the shop, working alongside ten or eleven men. J.A. 103,
110. In the early stages of her employment, the atmosphere in the
shop was "fun" and "friendly," but this changed. During her first year
there, coarse sexual talk and sexual antics by several of the men
began to occur with increasing frequency. This misconduct worsened
as time went on, especially after Ocheltree complained to the men and
the shop supervisor, Harold Hirsch. J.A. 111-14, 199-200, 202-03.
The details of the sexual talk and conduct that Ocheltree heard and
saw during her tenure in the production shop are as follows.
Scollon Productions has mannequins that are used in the produc-
tion of its costumes. Some of the men in the production shop often
used a female-form mannequin as a prop to engage in sexual antics
in front of Ocheltree. Many times when Ocheltree was in sight of the
mannequin, the men would fondle it or use it to demonstrate sexual
3
techniques, including oral sex. J.A. 200-02. One shop employee,
Brian Hodge, noticed that "anytime [Ocheltree] was walking by just
about they would do something sexual to the mannequin in front of
her." J.A. 202. On one occasion, for example, two male shop employ-
ees were positioned at the mannequin when Ocheltree arrived at
work. One was pinching the mannequin's nipples, and the other was
on his knees simulating oral sex on the mannequin. Ocheltree said to
the men, "You guys are disgusting, this needs to stop." The incident
prompted Ocheltree to leave the room. As she walked out, she heard
laughter in the background. J.A. 115-17.
On another occasion a male coworker came up to Ocheltree in the
production shop and sang the following song to her "like he was in
the opera": "Come to me, oh, baby come to me, your breath smells
like c[o]m[e] to me." J.A. 114-15. Ocheltree immediately told the
man that he was disgusting. Nevertheless, the other men in the pro-
duction shop, including supervisor Hirsch, expressed their enjoyment
of the incident with much laughter. Id. On still another occasion when
Ocheltree was seated at her work station, some of her male coworkers
were looking at a book that contained pictures of men with pierced
genitalia. One coworker took the book, approached Ocheltree, and
opened it to the centerfold photograph showing a man's crotch area.
The scrotum was pierced with hoops, and there were chains running
up to the top of the penis. The coworker, with his male colleagues
looking on, said, "Lisa, what do you think about this?" Again, this
generated laughter from the men in the shop. J.A. 117-18.
As time went on, Ocheltree's male coworkers subjected her to a
daily stream of discussion and conduct that was sex based or sexist.
J.A. 114, 120, 204, 214. First, the men in the production shop used
explicit sexual insults to needle each other in front of Ocheltree. For
example, "[g]uys would make hand gestures down at their private
parts and tell other guys to suck it." J.A. 113. Some of the men at
times suggested that two of their number were involved in a homo-
sexual relationship. The men engaging in this sort of talk "pick[ed]
on" their subjects by discussing the details of anal sex, saying specifi-
cally that they "wonder[ed] who was on top and who took it up the
ass." J.A. 200. There were also comments that one employee was hav-
ing sex with a dog. J.A. 229. Second, Ocheltree's male coworkers
constantly discussed their sexual exploits with their wives and girl-
4
friends in extremely graphic terms. The men talked every day about
their sexual experiences of the night before, making comments about
their female partners such as "she swallowed, she gave good head,
[or] I fucked her all night long." J.A. 118. One employee announced
that his girlfriend "gave good head[,] that she likes to swallow, that
she liked it from behind, [and] that she would do it anywhere with
him." J.A. 120. He added that she "could suck a golf [ball] through
a garden hose." Id. Another employee in the shop often "would speak
of [his wife] sucking his dick and swallowing and letting it run down
the side of her face and stuff." J.A. 200. Finally, on one occasion,
shop supervisor Hirsch said that he was interested in having sex with
young boys and that he "enjoyed . . . licking young boys['] dicks."
J.A. 119. Ocheltree was convinced that Hirsch and other men in the
shop engaged in sexual talk and antics "in front of [her] because they
enjoyed looking at [her] and seeing [her] reaction." J.A. 119. Indeed,
Hirsch frequently joined in the shoproom laughter that erupted at
Ocheltree's expense. J.A. 115, 118. There were times when the sexual
talk in the production shop got so far out of hand that Ocheltree
would "turn red [and] would have to get up and leave [her] work area
. . . just to get away from the atmosphere." J.A. 120.
According to Bill Scollon, his company has a sexual harassment
policy that is covered by the section entitled "Talking" in the
employee handbook. J.A. 299-300, 352. Sexual harassment is not
mentioned in the section. It only states that "[l]oud talking, yelling,
uncontrolled laughter, swearing, and verbal abuse of co-workers, and
supervisors is not acceptable. Verbal abuse, swearing, etc. are
grounds for termination." J.A. 352. The handbook's "Open Door Pol-
icy" directs that "[a]nyone having a complaint or problem should first
try to resolve it with their immediate supervisor." J.A. 355. The policy
goes on to say that "Ellery [Locklear] or Bill [Scollon] are usually
available throughout the day to help resolve complaints or problems
not resolved by supervisors." Id.
Ocheltree believed that she was being subjected to sexual harass-
ment in her workplace, and she made attempts to register complaints
as the employee handbook prescribed. She complained repeatedly to
Hirsch, the shop supervisor, who ignored the problem. J.A. 122.
Ocheltree then attempted to register her concerns with Scollon and
Locklear, but in Ocheltree's words, "[t]hey wouldn't give [her] the
5
time of day." J.A. 137. She went to Scollon's office several times and
asked if he had a minute to talk with her. J.A. 122-23. In each
instance Scollon told her that he did not have time and that she should
"go see Mr. Locklear" or "go back to work." J.A. 123-24. Scollon
acknowledges that on one occasion when Ocheltree attempted to
speak with him, he told her it was not an appropriate time. He admits
that he turned her away because he believed that whatever she wanted
to talk about was not important. J.A. 299. Locklear was likewise
never available to hear Ocheltree's complaints. Once when Ocheltree
went to Locklear's office, he was on the telephone; she put a note on
his desk, saying: "Ellery, Need to talk to you, very important, Lisa."
J.A. 123. She underlined "very important." Locklear indicated that he
saw the note, but he never talked with her. Id. When Ocheltree left
her work station because the sexual and sexist talk was getting out of
hand, Hirsch would follow her to prevent her from speaking to Scol-
lon or Locklear. J.A. 120, 123-24. For example, if she took refuge in
the bathroom at these times, Hirsch would often be waiting when she
emerged, telling her to go back to work. Ocheltree lost track of the
number of times she tried to talk with Locklear, only to have Hirsch
order her back to work. J.A. 123-24. Ocheltree summed it up this
way: "[Hirsch] knew [that] I was going to go and tell [Locklear or
Scollon about the men's behavior] because he would not go forward
with it. He would tell me to get back to work, that if I had something
. . . to say to Bill or Ellery they would come to me and talk to me
[and] that he would relay the message." Id.
After Ocheltree had no success in voicing her complaints through
regular channels, she decided to speak up at a safety meeting for the
production shop. She knew that a supervisor would be taking minutes,
and she believed the minutes would be passed along to Scollon and
Locklear. Ocheltree "addressed everyone," saying that "the sexual
conduct, pictures, the gestures, the imitating of sex to mannequins and
all that" should stop. J.A. 144-45, 203. The offensive conduct ceased
for two or three hours, but then resumed with the same intensity. J.A.
203-04.
Her treatment at Scollon Productions left Ocheltree "embarrassed,
humiliated, angered," and "totally down all the time." J.A. 127. She
found it hard to be around groups of people and, as a result, stopped
6
attending functions and activities that her two children were involved
in. She has been on and off antidepressants. J.A. 125-26.
In April 1996 Ocheltree filed a complaint against Scollon Produc-
tions in the United States District Court for the District of South Caro-
lina, asserting sex discrimination and retaliation claims under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and
South Carolina state law. The district court granted summary judg-
ment to Scollon Productions, and Ocheltree appealed. We vacated the
judgment on the hostile work environment claim, concluding that
there were genuine issues of material fact as to the imputation of lia-
bility element of that claim. Ocheltree v. Scollon Prods., Inc., 161
F.3d 3 (table), 1998 WL 482783 (4th Cir.). Ocheltree's case went to
trial after remand, and the jury returned a verdict in her favor, finding
(in special interrogatories) that she had been subjected to a hostile
work environment because of her sex. The jury awarded her $7280
in compensatory damages and $400,000 in punitive damages. The
district court denied Scollon Productions' Rule 50 motion for judg-
ment as a matter of law, but reduced the punitive damages to $42,720,
bringing the total judgment in line with the $50,000 cap imposed by
42 U.S.C. § 1981(a)(b)(3)(A). Scollon Productions appealed, and a
divided panel of this court held that the company was entitled to judg-
ment as a matter of law because the offensive behavior directed at
Ocheltree was neither because of her sex nor sufficiently severe or
pervasive to constitute a hostile work environment. Ocheltree v. Scol-
lon Prods., Inc., 308 F.3d 351 (4th Cir. 2002). We vacated the panel
decision and reheard the case en banc.
II.
Scollon Productions argues that the district court erred in denying
its Rule 50 motion for judgment as a matter of law because "there is
no legally sufficient evidentiary basis" for the jury's verdict. See Fed.
R. Civ. P. 50(a)(1). Our review is de novo. Anderson v. G.D.C., Inc.,
281 F.3d 452, 457 (4th Cir. 2002). We view the evidence (and recount
it in part I) in the light most favorable to Ocheltree, the nonmovant,
"draw[ing] all reasonable inferences in her favor without weighing the
evidence or assessing the witnesses' credibility." Id. Judgment as a
matter of law is proper only if "there can be but one reasonable con-
7
clusion as to the verdict." Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986).
III.
Title VII of the Civil Rights Act of 1964 makes it unlawful for an
employer "to discriminate against any individual with respect to [her]
compensation, terms, conditions, or privileges of employment,
because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a)(1). This
provision "not only covers `terms' and `conditions' in the narrow con-
tractual sense, but `evinces a congressional intent to strike at the
entire spectrum of disparate treatment of men and women in employ-
ment.'" Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78
(1998) (quoting Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57, 64
(1986)). Title VII is violated "[w]hen the workplace is permeated with
discriminatory [sex-based] 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." Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations and internal quo-
tation marks omitted). To establish a Title VII claim for sexual
harassment in the workplace, a female plaintiff must prove that the
offending conduct (1) was unwelcome, (2) was based on her sex, (3)
was sufficiently severe or pervasive to alter the conditions of her
employment and create an abusive work environment, and (4) was
imputable to her employer. Spicer v. Va., Dep't of Corr., 66 F.3d 705,
710 (4th Cir. 1995) (en banc); Anderson, 281 F.3d at 458. Scollon
Productions does not dispute that Ocheltree proved the first element
of her sexual harassment claim, unwelcome conduct. The company
argues, however, that the evidence was insufficient to establish the
other three elements of the claim. We will discuss each of these ele-
ments and the sufficiency of the related evidence.
A.
The second element of the test requires proof that the offending
conduct was based on the plaintiff's sex. This element comes straight
from Title VII's "discriminat[ion] . . . because of . . . sex" require-
ment. 42 U.S.C. § 2000e-2(a)(1). "`The critical issue [in the "because
of sex" inquiry] is whether members of one sex are exposed to disad-
vantageous terms or conditions of employment to which members of
8
the other sex are not exposed.'" Oncale, 523 U.S. at 80 (quoting Har-
ris, 510 U.S. at 25 (Ginsburg, J., concurring)). A woman may prove
sex-based discrimination in the workplace even though she is not sub-
jected to sexual advances or propositions. Smith v. First Union Nat'l
Bank, 202 F.3d 234, 242 (4th Cir. 2000); see also Oncale, 523 U.S.
at 80. A trier of fact may reasonably find discrimination, for example,
when a woman is the individual target of open hostility because of her
sex, Smith, 202 F.3d at 242-43, or when "a female victim is harassed
in such sex-specific and derogatory terms . . . as to make it clear that
the harasser is motivated by general hostility to the presence of
women in the workplace," Oncale, 523 U.S. at 80.
The jury found specifically that Ocheltree's male coworkers
engaged in the harassing conduct "because of [her] sex." Scollon Pro-
ductions argues that the evidence does not support this finding
because the conduct was not directed at Ocheltree (or at women in
general) because of sex. The conduct was not directed at Ocheltree or
women, the company says, because "it could have been heard [or
seen] by anyone present in the shop" and "was equally offensive to
some of the men." Appellant's Br. 18, 21. We conclude that the jury's
"because of sex" finding is easily sustained. A reasonable jury could
find that much of the sex-laden and sexist talk and conduct in the pro-
duction shop was aimed at Ocheltree because of her sex - specifi-
cally, that the men behaved as they did to make her uncomfortable
and self-conscious as the only woman in the workplace. Much of the
conduct, a jury could find, was particularly offensive to women and
was intended to provoke Ocheltree's reaction as a woman.
The disrespectful and degrading song that a coworker sang to
Ocheltree in front of the men in the shop - "Come to me, oh, baby
come to me, your breath smells like c[o]m[e] to me" - was by its
words aimed at a woman. J.A. 115. On the occasion when some of
Ocheltree's male coworkers were looking at the book with pictures of
men with pierced genitalia, one of the coworkers decided to take
advantage of Ocheltree's presence. With his male colleagues watch-
ing, the man took the book over to Ocheltree's work station, held up
the centerfold photograph (showing a hoop-pierced scrotum and a
chained penis) for her to see, and said, "Lisa, what do you think about
this?" J.A. 117-18. No man in the shop was subjected to this same
embarrassment, and no man there was called upon to offer a reaction
9
to the photograph while the entire shop looked on. The sexual activity
with the mannequin (from simulated oral sex to fondling) occurred
repeatedly. Ocheltree's male coworkers did something sexual to the
mannequin almost every time she was nearby. All of this conduct pro-
voked much laughter from the men in the shop - laughter at
Ocheltree's expense. J.A. 115-17, 200-03. Indeed, a jury could rea-
sonably find that the men engaged in this conduct largely because
they enjoyed watching and laughing at the reactions of the only
woman in the shop.
The production shop talk that portrayed women as sexually subor-
dinate to men was also calculated to disturb Ocheltree, a jury could
reasonably find. We refer here to the almost daily accounts from some
of the men who described their exploits with their wives and girl-
friends in demeaning terms such as "she gave good head," "she likes
to swallow," she "let[ ] [the semen] run down the side of her face,"
and "she like[s] it from behind." J.A. 120, 200. This kind of talk, as
well as the sexual antics, got out of hand after Ocheltree's arrival in
the production shop; it even escalated after she complained about it.
It is true, as Scollon Productions points out, that at least a couple of
the men were offended by the sexual talk and antics. There is no evi-
dence, however, that this outrageous conduct was aimed at getting an
embarrassed reaction from these men or that it was calculated to gen-
erate laughter at the expense of any man. No man was driven from
the room because of the conduct, as was Ocheltree on occasion.
To sum up on this point, we conclude that a reasonable jury could
find that Ocheltree was the individual target of harassment because of
her sex. Moreover, a jury could find that the men in the production
shop "harassed [Ocheltree] in such sex-specific and derogatory terms
. . . as to make it clear that [they were] motivated by general hostility
to the presence of [a] wom[a]n in the [ir] workplace." Oncale, 523
U.S. at 80. In all events, a reasonable jury could find, as did the jury
in this case, that Ocheltree was harassed in her workplace because of
her sex.
B.
The third requirement for a Title VII claim is proof that the harass-
ment is "sufficiently severe or pervasive to alter the conditions of [the
10
victim's] employment and create an abusive working environment."
Meritor Savs. Bank, 477 U.S. at 67 (internal quotation marks omitted;
alteration in original). The "severe or pervasive" element has both
subjective and objective components. Harris, 510 U.S. at 21-22. Scol-
lon Productions does not challenge the jury's finding that the harass-
ment was "severe or pervasive to [Ocheltree] personally." Rather, the
company argues that the evidence was insufficient to support the
jury's finding that the harassment would have been "severe or perva-
sive to a reasonable person in [Ocheltree's] position." In deciding
whether a jury could find that a work environment was objectively
abusive, that is, abusive to "a reasonable person in the plaintiff's posi-
tion," Oncale, 523 U.S. at 82, we consider all of the circumstances,
including "the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offen-
sive utterance; and whether it unreasonably interferes with an
employee's work performance." Harris, 510 U.S. at 23. This standard
is designed to "filter out complaints attacking`the ordinary tribula-
tions of the workplace, such as the sporadic use of abusive language,
gender-related jokes, and occasional teasing.'" Faragher v. City of
Boca Raton, 524 U.S. 775, 788 (1998) (quoting Barbara Lindemann
& David Kadue, Sexual Harassment in Employment Law 175 (1992)).
At the same time, the standard "protect[s] working women from the
kind of male attentions that can make the workplace hellish for
women." Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir.
1995). See also Anderson, 281 F.3d at 459 (quoting Baskerville).
Here, a reasonable jury could find that, taken together, the various
mannequin incidents, the vulgar song and picture, and the graphic
descriptions of sexual activity (especially oral sex) that consistently
painted women in a sexually subservient and demeaning light were
sufficiently severe or pervasive to alter the conditions of Ocheltree's
employment and to create an abusive work environment. After a time,
Ocheltree was subjected every day to some variety of this offensive
conduct, which was humiliating to her personally and to women in
general. The harassment became so offensive at times that it drove
Ocheltree from the room. It surely made it more difficult for her to
do her job. A rational jury could find that a reasonable person in
Ocheltree's situation would regard the work environment at Scollon
Productions as abusive.
11
C.
A Title VII plaintiff, for the fourth element of her claim, must
prove that the harassment was imputable on some basis to her
employer. In a case where an employee is sexually harassed by a
coworker, the employer may be liable in negligence if it knew or
should have known about the harassment and failed to take effective
action to stop it. Spicer, 66 F.3d at 710; see also Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742, 759 (1998) (noting that "[n]egligence
sets a minimum standard for employer liability under Title VII"). In
a case of harassment by a supervisor "with immediate (or succes-
sively higher) authority over the employee," an employer may be
found vicariously liable under the standards established in Burlington
Industries, Inc. v. Ellerth, 524 U.S. at 765, and Faragher v. City of
Boca Raton, 524 U.S. at 807-08. Both the negligence and the vicari-
ous liability theories were submitted to the jury in the special inter-
rogatories, and the jury found in Ocheltree's favor on both theories.
We limit our discussion to the negligence (or constructive knowledge)
theory because the evidence is sufficient to support the jury's finding
that Scollon Productions should have known that Ocheltree was being
harassed by her coworkers.
An employer cannot avoid Title VII liability for coworker harass-
ment by adopting a "see no evil, hear no evil" strategy. Knowledge
of harassment can be imputed to an employer if a "reasonable [per-
son], intent on complying with Title VII," would have known about
the harassment. Spicer, 66 F.3d at 710. Under this rule an employer
may be charged with constructive knowledge of coworker harassment
when it fails to provide reasonable procedures for victims to register
complaints. See, e.g., Richardson v. N.Y. State Dep't of Corr. Serv.,
180 F.3d 426, 441 (2d Cir. 1999); Wilson v. Tulsa Junior Coll., 164
F.3d 534, 540-42 (10th Cir. 1998). The question here, then, is whether
a reasonable jury could find that Scollon Productions had constructive
knowledge of Ocheltree's harassment because the company failed to
provide adequate complaint procedures.
Scollon Productions claims that it has adequate complaint proce-
dures that are set out in its sexual harassment policy. To begin with,
it is debatable whether the company actually has a sexual harassment
policy. No company document mentions sexual harassment, and there
12
is no evidence that the company conducted any training to prevent
sexual harassment. The company claims, however, that its "sexual
harassment policy" is contained in two sections of its employee hand-
book. One section, entitled "Talking," says that "verbal abuse" of
coworkers and supervisors is "not acceptable" and is "grounds for ter-
mination." J.A. 352. According to Bill Scollon, this is the company's
prohibition of sexual harassment. J.A. 299-300. As to the channels for
reporting harassment, the company points to another section of its
handbook, entitled "Open Door Policy," J.A. 355, which states: "Any-
one having a complaint or problem should first try to resolve it with
their immediate supervisor. Ellery [Locklear] or Bill [Scollon] are
usually available throughout the day to help resolve complaints or
problems not resolved by supervisors." If this amounts to a sexual
harassment policy, a jury could reasonably find that it fails to provide
reasonable avenues of complaint.
The first problem with Scollon Productions' complaint procedure
is that, by the company's own admission, it fails to place any duty on
supervisors to report incidents of sexual harassment to their superiors.
Bill Scollon acknowledges that a supervisor, such as shop supervisor
Hirsch, has no duty under the open door policy to report sexual
harassment complaints to either of the two persons with full manage-
ment authority, Scollon himself or Ellery Locklear. J.A. 311. If a
supervisor cannot or does not adequately resolve an employee's com-
plaint, the employee has the responsibility of complaining to the com-
pany president or vice president. This approach seems ill designed to
ensure that upper management learns of harassment. The victim must
muster the courage to make a second complaint, and she may be more
reluctant to register that complaint with a top company official. In any
case, in deciding whether a company has reasonable complaint proce-
dures, a jury may give negative weight to the fact that a scheme does
not require a supervisor, with whom complaints of sexual harassment
must be lodged in the first instance, to forward unresolved complaints
to higher authority. See Wilson, 164 F.3d at 541-42.
The facts also show that Scollon Productions' procedure for
employees to report sexual harassment complaints is deficient in
another respect. Scollon Productions contends that under its "open
door policy," Ocheltree had both the obligation and the opportunity
to register her complaints with Scollon or Locklear. However,
13
Ocheltree tried unsuccessfully to talk to Scollon and Locklear on
numerous occasions. Her intent was to report the harassment.
Ocheltree went to Scollon's office several times and asked if he had
a minute to talk with her. Scollon told her repeatedly that he had no
time and that she should "go see Mr. Locklear" or "go back to work."
J.A. 123-24. Locklear was likewise never available to talk with
Ocheltree. J.A. 123. In addition, Hirsch, the shop supervisor, knew
that she planned to voice her complaints to Scollon or Locklear, and
he actively tried to prevent her from doing so. According to
Ocheltree, "[Hirsch] knew [that] I was going to go and tell [Locklear
or Scollon about the harassment] because he would not go forward
with it. He would tell me to get back to work, that if I had something
. . . to say to Bill or Ellery they would come to me and talk to me
[and] that he would relay the message." Id. Again, neither Scollon nor
Locklear ever talked with Ocheltree. From this evidence, a jury could
reasonably conclude that the company's "open door policy" was an
illusion, at least so far as Ocheltree was concerned.
In sum, a reasonable jury could make the basic finding that Scollon
Productions did not provide Ocheltree with reasonable avenues for
voicing her sexual harassment complaints. In other words, Scollon
Productions "did not exercise reasonable care in setting out the chan-
nels by which it could receive reports [of sexual harassment], and it
is therefore in no position to rely on those inadequate channels to
claim that it did not receive notice." Wilson, 164 F.3d at 542. Scollon
Productions should have known about the harassment, as the jury
found, and the company may be charged with knowledge because it
did not provide reasonable avenues of complaint. The jury properly
imputed the coworker harassment to Scollon Productions under the
negligence (or constructive knowledge) theory.
IV.
Scollon Productions also argues that there is no evidentiary basis
for a reasonable jury to award punitive damages in this case. A Title
VII plaintiff is entitled to punitive damages if her employer engaged
in intentional discrimination "with malice or with reckless indiffer-
ence to [the plaintiff's] federally protected rights." 42 U.S.C.
§ 1981a(b)(1). As the Supreme Court has said,"[t]he terms `malice'
or `reckless indifference' pertain to the employer's knowledge that it
14
may be acting in violation of federal law, not its awareness that it is
engaging in discrimination." Kolstad v. Am. Dental Ass'n, 527 U.S.
526, 535 (1999). To be liable in punitive damages, "an employer must
at least discriminate in the face of a perceived risk that its actions will
violate federal law." Id. at 536. There is not much to be said here. We
have combed the record, and we find no evidence that would allow
a jury to find that Scollon Productions knew, either directly or by
imputation, that it might have been acting in violation of Ocheltree's
"federally protected rights." As a result, the award of punitive dam-
ages must be set aside.
V.
Because there is a legally sufficient evidentiary basis for a reason-
able jury to find that Ocheltree was the victim of sex-based employ-
ment discrimination, we conclude that the district court correctly
denied Scollon Productions' motion for judgment as a matter of law
on her basic Title VII claim. The evidence, however, was not legally
sufficient for a jury to find that Scollon Productions had the knowl-
edge required to be liable for punitive damages. Accordingly, we
affirm the judgment for the amount awarded in compensatory dam-
ages, and we reverse the judgment for the amount awarded in punitive
damages.
AFFIRMED IN PART AND REVERSED IN PART
NIEMEYER, Circuit Judge, concurring in the judgment:
This case presents the fortunately unusual circumstances in which
the conditions in the entire workplace were coarse - indeed humanly
degrading - and about which both male employees and Lisa
Ocheltree appropriately complained. Because the basis of this work-
place conduct for everyone centered on dirty jokes and allusions to
sexual play and perversion, the majority has in my judgment taken it
for discrimination by reason of sex and thus blurred the relevant issue.
The majority reasons that this general condition of sexually-oriented
baseness subjected Ocheltree to a hostile work environment that vio-
lated Title VII and the Meritor Savings Bank line of cases. See ante
at 8-9. While the majority does point out that some of the workplace
antics were focused more directly on Ocheltree than others to obtain
15
her reaction as a woman, the number of such incidents appears to be
limited to three. See ante at 9-10. The remainder of the conduct relied
on by the majority must be characterized as general work conditions
that both males and Ocheltree experienced. The majority fails to
explain how these generally coarse conditions discriminated against
one person or against one sex.
The dissenting opinion has, in my judgment, advanced the proper
analysis of Title VII, focusing on discrimination and pointing out that
the generally ugly atmosphere, albeit normally unacceptable, did not
violate Title VII because these general conditions did not discrimi-
nate. See post at 22. For these reasons noted by the dissent, I cannot
agree with the majority's analysis.
I am still left, however, with the existence of the three incidents of
which both the majority and the dissenting opinion agree were
focused on Ocheltree because she was a woman. These three inci-
dents taken in isolation, without any offensive background conduct,
most likely were insufficiently pervasive to alter the terms and condi-
tions of Ocheltree's workplace. See Hopkins v. Baltimore Gas & Elec.
Co., 77 F.3d 745, 754 (4th Cir. 1996) (holding that a few sexually dis-
criminatory incidents "spread over seven years with significant time
gaps between incidents" was not sufficiently severe or pervasive to be
actionable). But the presence of the background conduct based on
sexual perversion leads me to believe that we cannot take the three
incidents in isolation. See Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 81-82 (1998) ("The real social impact of workplace
behavior often depends on a constellation of surrounding circum-
stances, expectations, and relationships which are not fully captured
by a simple recitation of the words used or the physical acts per-
formed"). The discriminatory impact of the three incidents in my
judgment was heightened by the force of the sexually-based back-
ground conduct, and therefore, on reflection, I believe that a jury
could legally find that Ocheltree was the victim of unlawful discrimi-
nation.
Thus, while I firmly concur in the dissenting opinion's interpreta-
tion of Title VII, my review of the facts in the peculiar circumstances
of this case leads me to conclude that the jury's verdict on liability
should be affirmed. For this reason, I concur only in the judgment.
16
With respect to punitive damages, I agree that they must be
vacated.
WILLIAMS, Circuit Judge, dissenting in part and concurring in the
judgment in part:
In all candor, I share with my colleagues the personal preference
that all people treat each other with respect and decency, in and out
of the workplace. My disagreement with the result reached by the
majority should in no way be interpreted as condoning the deplorable
behavior exhibited by the employees of Scollon Productions. The
question, I submit, is whether we, as federal judges, should devise our
own policy or follow that which was clearly expressed by Congress
in Title VII. The answer is clear: "[o]ur compass is not to read a stat-
ute to reach what we perceive - or even what we think a reasonable
person should perceive - is a `sensible result'; Congress must be
taken at its word unless we are to assume the role of statute revisers."
Bifulco v. United States, 447 U.S. 381, 401 (1980) (Burger, J., con-
curring). "Our duty, to paraphrase Mr. Justice Holmes in a conversa-
tion with Judge Learned Hand, is not to do justice but to apply the law
and hope that justice is done." Id. at 402 (citing The Spirit of Liberty:
Papers and Addresses of Learned Hand 306-307 (Dilliard ed. 1960)).
Congress has proscribed gender-motivated discrimination in the
workplace, not immorality, vulgarity, or disrespect. With all respect
to my esteemed colleagues, I cannot agree that this jury verdict can
be sustained by simply recounting various types of vulgarity and then
concluding ipse dixit that such behavior constituted gender-motivated
discrimination. Because I believe the majority's opinion reflects a
fundamental misconception of the meaning of "discriminat[ion] . . .
because of . . . sex" and effectively insulates the district court's denial
of the motion for judgment as a matter of law from meaningful appel-
late review, I respectfully dissent from the majority's decision to
affirm the compensatory damages award. I concur in the majority's
judgment that the punitive damages award must be reversed.
I.
A court should render judgment as a matter of law when "a party
has been fully heard on an issue and there is no legally sufficient evi-
dentiary basis for a reasonable jury to find for that party on that
17
issue." Fed. R. Civ. P. 50(a)(1); see also Weisgram v. Marley Co., 528
U.S. 440, 448 (2000) ("[Rule 50(a)] allows the trial court to remove
cases or issues from the jury's consideration when facts are suffi-
ciently clear that the law requires a particular result." (internal quota-
tion marks and citation omitted)). "While we are compelled to accord
the utmost respect to jury verdicts and tread gingerly in reviewing
them, we are not a rubber stamp convened merely to endorse the con-
clusions of the jury, but rather have a duty to reverse the jury ver-
dict[ ] if the evidence cannot support it." Price v. City of Charlotte,
93 F.3d 1241, 1250 (4th Cir. 1996) (internal citations omitted). "Judg-
ment as a matter of law is proper when, without weighing the credi-
bility of the evidence, there can be but one reasonable conclusion as
to the proper judgment." Id. at 1249 (internal quotation marks and
citation omitted).
II.
To determine whether there is a legally sufficient evidentiary basis
to sustain the jury's verdict, I begin with the text of Title VII. Title
VII makes it an "unlawful employment practice for an employer . . .
to fail or refuse to hire or to discharge . . . or otherwise to discriminate
against any individual with respect to his compensation, terms, condi-
tions, or privileges of employment, because of such individual's . . .
sex." 42 U.S.C.A. § 2000e-2(a)(1) (West 1994). Because the work-
place environment is one of the "terms, conditions, or privileges of
employment," see Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64-67
(1986), a plaintiff may establish a violation of Title VII by proving
that "discriminat[ion] . . . because of . . . sex" has created a hostile
or abusive work environment, see id. at 66. As the majority explains,
to make out a hostile work environment claim, the claimant must
prove: (1) that the subject conduct was unwelcome; (2) that the plain-
tiff was "discriminate[d] against . . . because of [her] sex"; (3) that the
gender-motivated discriminatory behavior was sufficiently severe or
pervasive to create an abusive working environment; and (4) that
some basis exists for imputing liability to the employer. (Maj. Op. at
8.) Scollon Productions contends that the evidence was insufficient
with respect to elements (2), (3), and (4). I will address elements (2)
and (3) in turn.
18
A.
Notably, "Title VII does not prohibit all verbal or physical harass-
ment in the workplace; it is directed only at ` discriminat[ion] . . .
because of . . . sex.'" Oncale v. Sundowner Offshore Services, Inc.,
523 U.S. 75, 80 (1998); Rodgers v. Western-Southern Life Ins. Co.,
12 F.3d 668, 676 (7th Cir. 1993) (noting that there would be no cause
of action for race discrimination under Title VII for a "daily routine
of race-neutral verbal abuse"). Thus, a pervasively hostile or abusive
atmosphere does not create a cause of action for sexual harassment
under Title VII unless the plaintiff is able to show discriminatory
treatment because of sex. Meritor Sav. Bank, 477 U.S. at 66
("[C]ourts have uniformly held, and we agree, that a plaintiff may
establish a violation of Title VII by proving that discrimination based
on sex has created a hostile or abusive work environment.").
"[W]orkplace harassment, even harassment between men and women,
is [not] automatically discrimination because of sex merely because
the words used have sexual content or connotations." Oncale, 523
U.S. at 80. "`The critical issue, Title VII's text indicates, is whether
members of one sex are exposed to disadvantageous terms or condi-
tions of employment to which members of the other sex are not
exposed.'" Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25
(1993) (Ginsburg, J., concurring)). Stated another way, "would the
complaining employee have suffered the harassment had he or she
been of a different gender?" Hopkins v. Balt. Gas & Elec. Co., 77
F.3d 745, 750 (4th Cir. 1996) (quoting Bundy v. Jackson, 641 F.2d
934, 942 n.7 (D.C. Cir. 1981)).
Based upon the foregoing principles, this court has consistently and
correctly recognized that a finding of "discriminat[ion] . . . because
of . . . sex" depends not simply on identifying some quantum of
harassing behavior to which an individual is exposed. Rather, the stat-
utory language itself requires a showing that the harassing behavior
constituted disparate treatment and that this disparate treatment was
motivated by the plaintiff's gender. See Lack v. Wal-Mart, Inc., 240
F.3d 255, 260 (4th Cir. 2001) ("This emphasis on discrimination as
sex-differential treatment resonates throughout . . . Oncale." (empha-
sis added)); id. at 261 (asking whether offensive comments were "ani-
mated by Bragg's hostility to Lack as a man"). In other words, there
must be evidence that supports an inference that the harassing conduct
19
is both "discriminat[ion]" and is "because of . . . sex." See Oncale,
523 U.S. at 80-81; Smith v. First Union Nat'l Bank, 202 F.3d 234,
242 (4th Cir. 2000) ("An employee is harassed or otherwise discrimi-
nated against `because of' his or her gender if,`but for' the employ-
ee's gender, he or she would not have been the victim of the
discrimination." (citing Wrightson v. Pizza Hut of America, Inc., 99
F.3d 138, 142 (4th Cir. 1996)).
Applying these principles here, I turn first to the question of
whether the vulgar talk and antics detailed by the majority amounted
to discrimination. With respect to the vast majority of vulgar talk and
behavior upon which the majority relies, there is no suggestion that
Ocheltree was subjected to any different treatment than that to which
the other workers in the production shop were subjected. Tellingly, of
the eleven men who worked in the production shop, three of them -
Steve Zouras, John Riddle, and Brian Hodge - were offended by,
and also complained about, the talk and behavior.1 There is simply no
evidence that Ocheltree was the "individual target" of the vulgar talk
and behavior, as is suggested by the majority. (Maj. Op. at 9.) Indeed,
giving Ocheltree the benefit of all reasonable inferences, only a mini-
mal quantum of the vulgar behavior and antics could be perceived as
having been aimed at her. For example, the vulgar song was sung
directly to Ocheltree, and the book with pictures of pierced male geni-
talia was shown directly to Ocheltree.2 (J.A. at 115, 117-18.) Addi-
tionally, there was one incident with a mannequin about which
Ocheltree testified that could be perceived as having been targeted
toward her in particular.3 Setting aside these three incidents,4 the
____________________________________________________________
1 John Riddle specifically testified that he did not know whether
Ocheltree overheard the vulgar talk and did not believe that the talk or
behavior was directed at her, and yet he complained about the conduct
and language. (J.A. at 273-74, 279-80.)
2 The evidence shows that several of the men were looking at the book
when one of the men took the book and held it up about "four feet away"
from Ocheltree and said, "[w]hat do you think about this?" (J.A. at 117.)
The uncontested evidence shows that Ocheltree later voluntarily looked
at this book "by herself" while on break. (J.A. at 343.)
3 Although the majority discusses numerous incidents involving simu-
lated sexual acts with mannequins, (Maj. Op. at 3-4), Ocheltree only tes-
tified about one such incident, (J.A. at 116-17). From Ocheltree's
20
remainder of the vulgar talk and behavior cannot reasonably be per-
ceived as having been aimed or directed at Ocheltree in any way. The
vast majority of the talk and behavior occurred in group settings as
part of the male workers' daily bantering with one another and was
overheard or witnessed by Ocheltree. Cf. Hopkins, 77 F.3d at 753-54
(finding that the harassing conduct was "often not directed specifi-
cally at [the plaintiff]" because "several of the incidents upon which
Hopkins relies occurred in group settings"); White v. Fed. Express
Corp., 939 F.2d 157, 160 (4th Cir. 1991) (noting that "[m]ost of the
racist incidents detailed . . . were not directed against plaintiff . . ."
(internal quotation marks omitted)). The uncontested evidence was
that Ocheltree overheard most of the sexually explicit conversations
because the men in the production shop "had to speak in a loud tone
above all the equipment running and everything going." (J.A. at 201).
Significantly, Ocheltree testified that Harold Hirsch would "always
apologize if he knew [Ocheltree] could hear" what was being said.
(J.A. at 146.) Ocheltree also testified that Jason Salvage and Barry
Brown, two of the men who regularly engaged in the vulgar talk and
behavior, "did not care what they said and to who they said it," (J.A.
at 146). Thus, Ocheltree's own testimony confirms that much of the
sexual talk and antics were not aimed at her.
My colleagues in the majority acknowledge that men were exposed
to and offended by the sexual talk and antics, but they suggest that
gender-motivated discrimination may be inferred because "[t]here is
____________________________________________________________
testimony about this one incident, and giving her the benefit of all rea-
sonable inferences, a jury could conclude that it was staged for her bene-
fit. Brian Hodge, a co-worker of Ocheltree's, testified that employees
would regularly simulate sexually explicit acts on mannequins, but there
is no legally sufficient evidentiary basis to conclude that Ocheltree was
aware of these other incidents. To the extent that Ocheltree was not con-
fronted with the other incidents about which Hodge testified, I question
how the incidents could contribute to her hostile work environment
claim.
4 I have assumed arguendo that these three incidents are "discriminat-
[ion] . . . because of . . . sex." I discuss in the next section why, even
accepting that these three incidents satisfy the second element of
Ocheltree's claim, the claim nonetheless fails as a matter of law.
21
no evidence . . . that [the] outrageous conduct was aimed at getting
an embarrassed reaction from these men or that it was calculated to
generate laughter at the expense of any man." (Maj. Op. at 10.) A
review of the evidence, however, belies this assertion. For example,
Ocheltree testified about an incident where Harold Hirsch told two
male employees that he "would like to have sex with young boys."
(J.A. at 119.) According to Ocheltree, this comment was said in front
of Steve Zouras, who responded "that is enough, this cannot go on in
here." (J.A. at 119.) Zouras's response immediately provoked laugh-
ter from the men. (J.A. at 119.) Thus, the uncontested evidence shows
that the men "enjoyed watching and laughing at the reactions" of any-
one who was offended by their childish and immature conduct, not
that the men "enjoyed watching and laughing at the reactions of the
only woman in the shop," (Maj. Op. at 10), as the majority concludes.
At bottom, the majority simply fails to acknowledge the uncon-
tested evidence showing that the vulgar talk and behavior was experi-
enced by, and equally offensive to, all of the production shop
workers, irrespective of gender. In light of this evidence, Ocheltree is
unable to establish that she was subject to any meaningful difference
in treatment when compared to her co-workers. Lack, 240 F.3d at 262
("Lack [a male plaintiff] fails to come to grips with the fact that
female employees (including his original co-plaintiff Susan Willis)
also lodged similar complaints regarding Bragg's behavior. This fact
undercuts Lack's claim to a substantial extent."); id. ("In its totality,
the evidence compels the conclusion that Bragg was just an indiscrim-
inately vulgar and offensive supervisor, obnoxious to men and women
alike."); SCUSA v. Nestle U.S.A. Co., Inc., 181 F.3d 958, 965 (8th Cir.
1999) ("Appellant admitted that Schoenfeld used profanity toward
both male and female employees, and she believed that Lonnie would
have reacted the same way had a male co-worker laughed at his mis-
takes."); Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir.
1982) (holding that where a supervisor makes sexual overtures to
employees of both genders, or where the conduct is equally offensive
to male and female workers, the conduct may be actionable under
state law, but it is not actionable as harassment under Title VII
because men and women are accorded like treatment). Thus, the
majority of the vulgar talk and antics trumpeted by the majority did
not constitute discrimination.
22
Moreover, with regard to the second part of this inquiry, there is
no evidence that this non-discriminatory vulgar talk and behavior
occurred "because of" Ocheltree's sex. In fact, the uncontested evi-
dence before the jury conclusively establishes otherwise. Zouras, who
worked at Scollon Productions prior to Ocheltree becoming an
employee, testified that "the same kind of conversations went on
before [Ocheltree] came to work [at Scollon Productions] as after she
arrived" and that it would be "fair to say there was no change in the
atmosphere at the shop when [Ocheltree] arrived." (J.A. at 241-42.)
Given that the behavior occurred prior to Ocheltree's employment
with Scollon Productions, it follows a fortiori that the behavior could
not have been motivated by her sex.5
Finally, my colleagues in the majority suggest that a jury could rea-
sonably infer gender-motivated discriminatory treatment because
Ocheltree was harassed "in such sex-specific and derogatory terms
. . . as to make it clear that the harasser [was] motivated by general
hostility to the presence of women in the workplace." See Oncale, 523
U.S. at 80. While I do not condone the vulgar talk that frequently took
place at Scollon Productions, I disagree that it could reasonably be
perceived as so "sex-specific and derogatory" as to give rise to an
inference of gender-motivated discriminatory treatment. At the outset,
I note that the lewd, vulgar remarks had nothing to do with the pres-
ence of women in the workplace. The conversations about the men's
sexual exploits simply described - albeit in graphic and lewd terms
- heterosexual sex, including oral sex, between consenting adults.
____________________________________________________________
5 The majority suggests that the "misconduct worsened as time went
on, especially after Ocheltree complained to the men and the shop super-
visor, Harold Hirsch." (Maj. Op. at 3, 10.) The uncontested evidence is
that any worsening in the conduct was experienced by all employees and
that similar complaints were lodged prior to the worsening by
Ocheltree's male co-workers. Thus, even viewing the inferences in the
light most favorable to Ocheltree, the worsening of the conduct does not
establish that Ocheltree was exposed to "disadvantageous terms or condi-
tions of employment to which members of the other sex [were] not
exposed." Oncale, 523 U.S. at 80 (internal quotation marks and citation
omitted). The conduct itself does not amount to gender-motivated dis-
crimination; thus, the simple fact of its worsening cannot convert the oth-
erwise vulgar but lawful conduct into "discriminat[ion] . . . because of
. . . sex."
23
Oncale specifically instructs that comments do not amount to discrim-
inatory sexual harassment simply because of their sexual content.
Oncale, 523 U.S. at 80 (explicitly rejecting the proposition that
harassment directed at plaintiff with sexual content automatically con-
stitutes discrimination because of sex). On their face, the comments
do not portray women in any negative or demeaning light. The sexual
behavior described by the male co-workers is not by definition pas-
sive or subservient. Significantly, the comments do not suggest any
abuse, control, or the use of force; the men were simply bragging
about the sexual prowess of their partners. Further, in modern times,
there is nothing particularly derogatory, demeaning, or subservient
about a woman participating in consensual heterosexual sex. As
women have sought and achieved sexual equality in this society, and
as moral beliefs and taboos about oral sex have broken down, it seems
illogical to assert that comments about consensual sex between adults
necessarily imply male dominance or power.
To be sure, sexually explicit conversations could be so sex-specific
and derogatory as to permit an inference of gender-related hostility.
For example, if the conversations included unambiguous gender-
related epithets, it would be permissible to infer that the vulgar behav-
ior was intended to be discriminatory and was animated by hostility
toward women. Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185
(4th Cir. 2001). No such conversations, however, were alleged here.
Apart from the sexual content of the conversations, there is no nexus
whatsoever between the conduct and Ocheltree's gender. To conclude
that these conversations portray women in derogatory terms simply
because they depict women engaging in consensual heterosexual sex
would be, I believe, to misapply the Supreme Court's teaching on the
relationship between sexual conversations and sexual harassment and
to misunderstand modern societal views regarding women's sexuality.
"[W]hile there are still people in this country, male as well as female,
who are deeply offended by dirty words, employers are not under a
legal duty enforceable by suits under Title VII to purify the language
of the workplace." Carr v. Allison Gas Turbine Div., Gen. Motors
Corp., 32 F.3d 1007, 1010 (7th Cir. 1994) (citing Rabidue v. Osceola
Refining Co., 805 F.2d 611, 620-21 (6th Cir. 1986)).
In sum, after applying the appropriate analytical framework, it is
clear that there is no legally sufficient evidentiary basis upon which
24
the jury could have concluded that the majority of vulgar talk and
behavior that took place at Scollon Productions amounted to gender-
motivated discriminatory treatment.6 Assuming arguendo that the
three incidents that could be perceived as having been directed at
Ocheltree (e.g., the vulgar song, the body piercing book, and the man-
nequin incident) amounted to gender-motivated discrimination, I next
proceed to determine whether there is a legally sufficient evidentiary
basis to support Title VII's third requirement for establishing a hostile
work environment claim.
B.
The third requirement for a Title VII claim is proof that the dis-
crimination is "sufficiently severe or pervasive to alter the conditions
of [the victim's] employment and create an abusive working environ-
ment." Meritor Sav. Bank, 477 U.S. at 67 (internal quotation marks
omitted; alteration in original). "Not all sexual harassment that is
directed at an individual because of his or her sex is actionable."
Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 772-73 (4th Cir. 1997)
____________________________________________________________
6 Given the absence of a sufficient basis for concluding that this vulgar
talk and behavior constituted gender-animated discriminatory treatment,
the analysis and result crafted by the majority creates a rule requiring that
women be given preferential accommodation in the workplace beyond
non-discrimination. I view this as contrary to Title VII's statutory
demand of equality, as well as contrary to the Supreme Court's and this
court's instruction on gender neutrality in employment decisions. More-
over, I reject the notion that female workers are in need of "the protec-
tion of a preferential standard." DeAngelis v. El Paso Mun. Police
Officers Ass'n, 51 F.3d 591, 593 (5th Cir. 1995) (Jones, J.); see also
Radtke v. Everett, 501 N.W.2d 155, 167 (Mich. 1993) ("The belief that
women are . . . in need of a more protective standard . . . degrades
women and is repugnant to the very ideals of equality that [employment
discrimination law] is intended to protect."); Margaret Talbot, Men
Behaving Badly, N.Y. Times Magazine, October 13, 2002, at 52-55
(opining that a hostile work environment framework that is grounded in
the assumption that the "presence of sexuality in the workplace, however
motivated, is inherently threatening to women and prevents them from
enjoying their work and succeeding on the same basis as men . . . offers
a paternalistic view of women as paradigmatic victims in need of protec-
tion from all forms of sexual expression").
25
(citation omitted). "The `occasional vulgar banter, tinged with sexual
innuendo, of coarse or boorish workers' would be neither pervasive
nor offensive enough to be actionable. The workplace that is action-
able is the one that is `hellish.'" Perry v. Harris Chernin, Inc., 126
F.3d 1010, 1013 (7th Cir. 1997) (quoting Baskerville v. Culligan Int'l
Co., 50 F.3d 428, 430 (7th Cir. 1995)).
The behavior here falls well short of that mark. As discussed
above, the vast majority of the vulgar talk and behavior that occurred
at Scollon Productions does not constitute "discriminat[ion] . . .
because of . . . sex." Of course, it is inappropriate to evaluate the
severity or pervasiveness of non-discriminatory conduct for purposes
of imposing liability under Title VII. Faragher v. City of Boca Raton,
524 U.S. 775, 787-88 (1998) ("[W]hether an environment is suffi-
ciently hostile or abusive is determined by looking at all the circum-
stances, including the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an
employee's work performance." (emphasis added and internal quota-
tion marks omitted)); see also Hartsell, 123 F.3d at 772 (isolating
gender-motivated discriminatory conduct and then evaluating whether
such conduct was severe or pervasive). Even assuming that the few
incidents that could be viewed as having been directed at Ocheltree
during the year and a half that she was employed at Scollon Produc-
tions each amounted to gender-motivated discrimination, I have no
difficulty concluding that these incidents were not severe or pervasive
for purposes of Title VII as a matter of law. See, e.g., Hartsell, 123
F.3d at 773 ("But the claims propounded by Hartsell-even assuming
them all to be true-are so trivial, so isolated, and so far from the par-
adigmatic case of sexual harassment, that summary judgment was
clearly appropriate."); Hopkins, 77 F.3d at 754 (listing cases involv-
ing infrequent, isolated incidents in which we have held that harass-
ment was not severe or pervasive as a matter of law). Because
Ocheltree has failed to introduce sufficient evidence establishing the
third element of her hostile work environment claim, the claim is not
cognizable as a matter of law.7
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7 Because I conclude that the gender-based conduct was not sufficiently
severe or pervasive for Ocheltree to establish a prima facie case of sexual
26
In my good colleague Judge Niemeyer's separate opinion, he
agrees, as he did initially as a member of the panel, that these three
incidents, taken in isolation, were not severe or pervasive as a matter
of law. He further agrees that virtually all of the vulgar talk and antics
relied upon by the majority cannot reasonably be viewed as gender-
motivated discrimination. Nevertheless, he now finds that the three
incidents that arguably were directed at Ocheltree could be considered
severe or pervasive upon consideration of this background, non-
discriminatory conduct. I disagree.
Although it is true that determining the severity or pervasiveness
of the gender-motivated discrimination requires careful consideration
of the social context in which particular behavior occurs, Oncale, 523
U.S. at 81-82; Meritor Sav. Bank, 477 U.S. at 69, this contextual anal-
ysis weakens - rather than bolsters - Ocheltree's sexual harrass-
ment claim. For example, it is not severely or pervasively abusive for
a coach to smack a professional football player on the buttocks as he
heads on the field, "even if the same behavior would reasonably be
experienced as abusive by the coach's secretary . . . back at the
office." Oncale, 523 U.S. at 81. Similarly, the three isolated incidents
of gender-motivated discrimination were not severe or pervasive, con-
sidering the coarse social context of the production shop where the
background environment was and had been generally crude and vul-
gar, but non-discriminatory. See Gross v. Burggraf Construction Co.,
53 F.3d 1531, 1537-39 (10th Cir. 1995) (evaluating claim of gender
discrimination in light of the profanity and vulgarity prevalent in "the
real world of construction work").
A contrary conclusion would eviscerate the purpose underlying the
severe or pervasive requirement by allowing sporadic instances of
____________________________________________________________
harassment under Title VII, I do not reach the questions of whether the
conduct could be imputed to Scollon Productions or whether Scollon
Productions is entitled to operation of the Faragher/Ellerth affirmative
defense. Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765. Moreover,
insofar as Ocheltree failed to establish the essential elements of a sexual
harassment claim, I concur with the portion of the judgment that reverses
the district court's denial of Scollon Productions' motion to set aside the
jury's award of punitive damages.
27
gender-motivated discrimination to give rise to Title VII liability. See
Faragher, 524 U.S. at 788. If non-discriminatory background conduct
can somehow transform isolated incidents of discrimination into a
severe and pervasive environment, its practical effect mirrors that of
the majority - to avoid Title VII liability, employers will be forced
to alter the workplace environment by eliminating the background,
non-discriminatory conduct. When a non-discriminatory workplace
environment is required to change because of the introduction of a
female employee, Title VII has become a code of civility that requires
that women be afforded preferential treatment beyond non-
discrimination. I cannot agree that Title VII permits or sanctions such
a result.
III.
Finding that there is not a legally sufficient evidentiary basis to
support the jury's verdict, I respectfully dissent from my colleagues'
decision to affirm the compensatory damages award. I concur in the
majority's judgment that the punitive damages award must be
reversed.
28