Harris v. Forklift Systems, Inc.
A unanimous Supreme Court held that a hostile-work-environment plaintiff need not prove serious psychological injury: Title VII is violated once discriminatory conduct is severe or pervasive enough to create an environment a reasonable person would — and the victim does — find abusive.
Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17
Binding authority. As a decision of the United States Supreme Court construing Title VII of the Civil Rights Act of 1964, Harris is controlling federal law nationwide. It settled a conflict among the federal circuits — the Sixth Circuit (in Rabidue), Eleventh, and Federal Circuits had required proof of serious psychological harm, while the Ninth Circuit (in Ellison) had rejected that requirement — and supplies the “severe or pervasive,” combined objective-and-subjective standard that California courts apply to harassment claims under the Fair Employment and Housing Act (see CACI Nos. 2521A–2524).
Harassment
Hostile work environment
Severe or pervasive
Title VII (42 U.S.C. § 2000e-2(a)(1))
In brief. A unanimous Supreme Court held that conduct actionable as “abusive work environment” harassment under Title VII “need not ‘seriously affect [an employee’s] psychological well-being’ or lead the plaintiff to ‘suffer injury.’” (Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 22.) Reaffirming Meritor Savings Bank, FSB v. Vinson (1986) 477 U.S. 57, the Court charted a “middle path” between conduct that is merely offensive and conduct that causes tangible psychological injury, requiring both an objectively hostile environment — “one that a reasonable person would find hostile or abusive” — and the victim’s subjective perception that it is abusive. (Harris, at pp. 21–22.) Whether an environment is hostile “can be determined only by looking at all the circumstances.” (Id. at p. 23.)
By Jonathan J. Delshad
Founder & Editor-in-Chief
Facts
The statutory framework. Title VII of the Civil Rights Act of 1964 makes it “‘an unlawful employment practice 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, color, religion, sex, or national origin.’” (42 U.S.C. § 2000e-2(a)(1); Harris, supra, 510 U.S. at p. 21.) The Court had already established in Meritor Savings Bank, FSB v. Vinson (1986) 477 U.S. 57 that this language “‘is not limited to “economic” or “tangible” discrimination,’” and that the phrase “‘terms, conditions, or privileges of employment’” reaches the requirement that “people … work in a discriminatorily hostile or abusive environment.” (Harris, supra, at p. 21.) The question in Harris was how bad such an environment must be before Title VII is violated.
The plaintiff and her employer. Teresa Harris worked as a manager at Forklift Systems, Inc., an equipment rental company, from April 1985 until October 1987. Charles Hardy was Forklift’s president. (Harris, supra, 510 U.S. at p. 19.)
The conduct. The Magistrate found that “throughout Harris’ time at Forklift, Hardy often insulted her because of her gender and often made her the target of unwanted sexual innuendos.” (Harris, supra, 510 U.S. at p. 19.) Hardy told Harris on several occasions, in front of other employees, “‘You’re a woman, what do you know’” and “‘We need a man as the rental manager’”; at least once he told her she was “‘a dumb ass woman.’” (Ibid.) He suggested, again in front of others, that the two of them “‘go to the Holiday Inn to negotiate [Harris’] raise.’” (Ibid.) He “occasionally asked Harris and other female employees to get coins from his front pants pocket,” threw objects on the ground and asked the women to pick them up, and “made sexual innuendos about Harris’ and other women’s clothing.” (Ibid.)
The complaint, the apology, and the relapse. In mid-August 1987, Harris complained to Hardy. He “said he was surprised that Harris was offended, claimed he was only joking, and apologized,” and promised to stop; on that assurance Harris stayed. (Harris, supra, 510 U.S. at p. 19.) But in early September Hardy “began anew”: while Harris was arranging a deal with a customer, he asked her, in front of other employees, “‘What did you do, promise the guy … some [sex] Saturday night?’” (Ibid.) On October 1, Harris collected her paycheck and quit. (Ibid.)
Procedural history
Harris sued Forklift, claiming Hardy’s conduct “had created an abusive work environment for her because of her gender.” (Harris, supra, 510 U.S. at p. 19.) The United States District Court for the Middle District of Tennessee, adopting the Magistrate’s report and recommendation, “found this to be ‘a close case,’ … but held that Hardy’s conduct did not create an abusive environment.” (Id. at pp. 19–20.) The court found that some of Hardy’s comments “‘offended [Harris], and would offend the reasonable woman,’” but were not “‘so severe as to be expected to seriously affect [Harris’] psychological well-being,’” and that Harris was not “‘subjectively so offended that she suffered injury.’” (Id. at p. 20.) In focusing on psychological well-being, the District Court “was following Circuit precedent,” citing Rabidue v. Osceola Refining Co. (6th Cir. 1986) 805 F.2d 611, 620. (Harris, supra, at p. 20.) The Sixth Circuit “affirmed in a brief unpublished decision.” (Ibid.)
The Supreme Court granted certiorari “to resolve a conflict among the Circuits on whether conduct, to be actionable as ‘abusive work environment’ harassment … must ‘seriously affect [an employee’s] psychological well-being’ or lead the plaintiff to ‘suffer injury.’” (Harris, supra, 510 U.S. at p. 20.) The Court contrasted Rabidue, Vance v. Southern Bell Telephone & Telegraph Co. (11th Cir. 1989) 863 F.2d 1503, 1510, and Downes v. FAA (Fed. Cir. 1985) 775 F.2d 288, 292 (all requiring a serious effect on psychological well-being), with Ellison v. Brady (9th Cir. 1991) 924 F.2d 872, 877–878 (rejecting that requirement). (Harris, supra, at p. 20.) The Court noted that “no quid pro quo harassment issue is present here.” (Ibid.)
Issue
Whether, to be actionable as “abusive work environment” harassment under Title VII, the challenged conduct must “seriously affect [an employee’s] psychological well-being” or lead the plaintiff to “suffer injury” — or whether a lesser showing suffices. (Harris, supra, 510 U.S. at p. 20.) Subsidiary questions were the proper legal standard for an “abusive work environment” and whether the District Court’s misapplication of that standard required reversal. (Id. at pp. 21–23.)
Holding
To be actionable as “abusive work environment” harassment, conduct “need not ‘seriously affect [an employee’s] psychological well-being’ or lead the plaintiff to ‘suffer injury.’” (Harris, supra, 510 U.S. at p. 22; see also id. at p. 20.) Reaffirming Meritor, the Court held that Title VII is violated when “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.’” (Id. at p. 21.) That standard takes “a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury.” (Ibid.) It requires both an objectively hostile or abusive environment — “an environment that a reasonable person would find hostile or abusive” — and the victim’s subjective perception that the environment is abusive. (Ibid.) Whether an environment is hostile “can be determined only by looking at all the circumstances,” with no single factor required. (Id. at p. 23.) Because the District Court applied the incorrect “psychological well-being” standard, and “may well have influenced its ultimate conclusion” in a self-described “‘close case,’” the judgment was reversed and the case remanded. (Ibid.) The Court expressly declined to “answer today all the potential questions” the test raises or to address the EEOC’s new proposed regulations. (Ibid.)
Reasoning
The Meritor baseline: “severe or pervasive” conduct creating an abusive environment. Justice O’Connor began with Title VII’s text and the Court’s prior construction of it in Meritor. The phrase “‘terms, conditions, or privileges of employment’” is “‘not limited to “economic” or “tangible” discrimination’” but “‘evinces a congressional intent “to strike at the entire spectrum of disparate treatment of men and women” in employment,’” including the requirement that people work in a hostile or abusive environment. (Harris, supra, 510 U.S. at p. 21.) From Meritor the Court drew the operative standard: when a 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,’ … Title VII is violated.” (Ibid.) The Court “reaffirm[ed]” that standard. (Ibid.)
The “middle path.” The Court positioned the standard between two extremes. At one pole, “‘mere utterance of an … epithet which engenders offensive feelings in a[n] employee’ … does not sufficiently affect the conditions of employment to implicate Title VII”; conduct “not severe or pervasive enough to create an objectively hostile or abusive work environment … is beyond Title VII’s purview.” (Harris, supra, 510 U.S. at p. 21.) At the other pole, the Court rejected any requirement of “tangible psychological injury.” (Ibid.) The standard thus “takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury.” (Ibid.)
The dual objective-and-subjective inquiry. The Court built a two-sided test into the standard. There must be an objectively hostile environment — “an environment that a reasonable person would find hostile or abusive.” (Harris, supra, 510 U.S. at p. 21.) And there must be subjective perception: “if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.” (Ibid.) Both sides must be satisfied, but neither requires proof of psychological damage.
Rejecting the “seriously affect psychological well-being” / tangible-injury requirement. This was the heart of the decision and the resolution of the circuit conflict. “Title VII comes into play before the harassing conduct leads to a nervous breakdown.” (Harris, supra, 510 U.S. at p. 22.) A discriminatorily abusive environment, “even one that does not seriously affect employees’ psychological well-being,” can detract from job performance, “discourage employees from remaining on the job, or keep them from advancing in their careers.” (Ibid.) And “even without regard to these tangible effects,” conduct so severe or pervasive that it creates an abusive environment “offends Title VII’s broad rule of workplace equality.” (Ibid.) The Court explained that the “appalling conduct” in Meritor and its reference to environments “‘“so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers”’” were merely “especially egregious examples” that “do not mark the boundary of what is actionable.” (Ibid.) Accordingly, the District Court “erred in relying on whether the conduct ‘seriously affected plaintiff’s psychological well-being’ or led her to ‘suffer injury,’” because such an inquiry “may needlessly focus the factfinder’s attention on concrete psychological harm, an element Title VII does not require.” (Ibid.) “So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, … there is no need for it also to be psychologically injurious.” (Ibid.)
The totality-of-the-circumstances factors. The Court acknowledged that this is “not, and by its nature cannot be, a mathematically precise test,” and that it need “not answer today all the potential questions it raises.” (Harris, supra, 510 U.S. at pp. 22–23.) But it supplied the now-canonical, non-exhaustive list: whether an environment is hostile or abusive “can be determined only by looking at all the circumstances,” which “may include 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.” (Id. at p. 23.) The effect on psychological well-being remains “relevant to determining whether the plaintiff actually found the environment abusive,” but “while psychological harm, like any other relevant factor, may be taken into account, no single factor is required.” (Ibid.)
Disposition. Forklift conceded that a serious-psychological-effect requirement “is unfounded” but argued the District Court had nonetheless correctly applied the Meritor standard. (Harris, supra, 510 U.S. at p. 23.) The Court disagreed: the District Court reached its “not intimidating or abusive” conclusion “only after” finding the conduct was not so severe as to seriously affect Harris’s psychological well-being and that she was not subjectively so offended that she suffered injury. (Ibid.) Application of “these incorrect standards may well have influenced its ultimate conclusion, especially given that the court found this to be a ‘close case.’” (Ibid.) The Court reversed and remanded. (Ibid.)
Justice Scalia’s concurrence: a reluctant join. Justice Scalia agreed there was no better alternative but pressed the standard’s indeterminacy. “‘Abusive’ (or ‘hostile,’ which in this context I take to mean the same thing) does not seem to me a very clear standard,” he wrote, and clarity is not “increased by adding the adverb ‘objectively’ or by appealing to a ‘reasonable person[’s]’ notion of what the vague word means.” (Harris, supra, 510 U.S. at p. 24 (Scalia, J., concurring).) Because the Court’s factor list neither weights the factors nor identifies any as determinative, “today’s holding lets virtually unguided juries decide whether sex-related conduct … is egregious enough to warrant an award of damages.” (Ibid.) He observed that under the statute “‘abusiveness’ is to be the test of whether legal harm has been suffered, opening more expansive vistas of litigation.” (Ibid.) Still, “I know of no alternative to the course the Court today has taken,” and “I know of no test more faithful to the inherently vague statutory language than the one the Court today adopts.” (Id. at pp. 24–25.)
Justice Ginsburg’s concurrence: work performance and the equality principle. Justice Ginsburg read the opinion as harmonious with a work-performance focus. “The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” (Harris, supra, 510 U.S. at p. 25 (Ginsburg, J., concurring).) The adjudicator’s inquiry “should center, dominantly, on whether the discriminatory conduct has unreasonably interfered with the plaintiff’s work performance,” and the plaintiff “‘need not prove that his or her tangible productivity has declined as a result of the harassment’”; it suffices to show that a reasonable person would find the harassment “so altered working conditions as to ‘make it more difficult to do the job.’” (Ibid.) She added, in a footnote, that it “remains an open question whether ‘classifications based upon gender are inherently suspect’” under the Court’s equal protection jurisprudence. (Id. at p. 26 & fn. (Ginsburg, J., concurring).)
Significance
Harris is the Supreme Court’s definitive statement of the hostile-work-environment standard under Title VII, decided to “resolve a conflict among the Circuits.” (Harris, supra, 510 U.S. at p. 20.) By rejecting the Sixth Circuit’s Rabidue rule that conduct must “seriously affect [an employee’s] psychological well-being,” and embracing the Ninth Circuit’s contrary view in Ellison v. Brady, the Court removed a proof barrier that had defeated meritorious claims — claimants no longer had to show they had been driven toward a “nervous breakdown” or had suffered tangible psychological injury or lost productivity. (Id. at pp. 20, 22.) The decision crystallized three features that structure harassment law to this day: the “severe or pervasive” threshold drawn from Meritor; the combined objective-and-subjective inquiry; and the open-ended, totality-of-the-circumstances factor list. (Id. at pp. 21–23.)
For California practitioners, Harris supplies the conceptual architecture that the Judicial Council’s harassment instructions track. California courts apply the “severe or pervasive” formulation and the combined objective-and-subjective test to hostile-environment claims under the Fair Employment and Housing Act, and the pattern instructions in the CACI 2520–2524 series — including CACI Nos. 2521A (hostile work environment — conduct directed at plaintiff), 2521B and 2521C (other harassment theories), 2522A–2522C, and 2523 (the “severe or pervasive” definition) — reflect the same elements Harris announced. The decision’s reach is bounded in two respects worth noting: the Court emphasized this is “not … a mathematically precise test” and declined to “answer today all the potential questions it raises” (id. at pp. 22–23), and Justice Scalia’s concurrence flagged that the standard leaves juries with substantial discretion (id. at p. 24 (Scalia, J., concurring)).
Key quotes
“This standard, which we reaffirm today, takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury.” (Harris, supra, 510 U.S. at p. 21.)
“But Title VII comes into play before the harassing conduct leads to a nervous breakdown. … So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, … there is no need for it also to be psychologically injurious.” (Id. at p. 22.)
“[W]hether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances. These may include 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. … [N]o single factor is required.” (Id. at p. 23.)
Practice pointer
Plead and prove harassment as a totality-of-the-circumstances case, not a damages-injury case. Harris means a plaintiff need not put on evidence of a diagnosable psychological injury or quantified lost productivity to survive summary judgment or prevail at trial — “no single factor is required.” (Harris, supra, 510 U.S. at p. 23.) Build the record around the four enumerated factors: frequency, severity, whether the conduct was physically threatening or humiliating versus a mere offensive utterance, and whether it interfered with work. (Ibid.) Establish both halves of the test — objective (a reasonable person in the plaintiff’s position would find the environment hostile) and subjective (the plaintiff did perceive it that way) — because failing either is fatal. (Id. at p. 21.) On the defense side, Harris forecloses the argument that the plaintiff’s claim fails for want of psychological harm, but it leaves room to attack severity or pervasiveness directly and to argue the conduct was “merely offensive” and so outside Title VII’s purview. (Ibid.) In California, frame the same evidence under FEHA and the CACI 2521A–2524 harassment instructions, which adopt the Harris/Meritor “severe or pervasive,” objective-and-subjective framework.
Open questions
The undefined contours of “severe or pervasive.” The Court was explicit that its standard “is not, and by its nature cannot be, a mathematically precise test,” and that it would “not answer today all the potential questions it raises.” (Harris, supra, 510 U.S. at pp. 22–23.) How much frequency or severity is enough, and how the factors trade off against one another, the Court left to case-by-case adjudication — the very indeterminacy Justice Scalia highlighted. (Id. at p. 24 (Scalia, J., concurring).)
The EEOC’s proposed regulations. The Court declined to “specifically address the Equal Employment Opportunity Commission’s new regulations on this subject,” citing the then-proposed 29 C.F.R. §§ 1609.1, 1609.2 and existing 29 C.F.R. § 1604.11. (Harris, supra, 510 U.S. at p. 23.) Their interaction with the judicial standard was left for another day.
Whether work-performance interference should be the controlling test. Justice Ginsburg would have had the inquiry “center, dominantly,” on interference with work performance, and Justice Scalia noted that elevating that one factor to an “absolute test” would “provide greater guidance to juries and employers,” though he saw “no basis for such a limitation in the language of the statute.” (Harris, supra, 510 U.S. at pp. 24–25 (Scalia, J., concurring); id. at p. 25 (Ginsburg, J., concurring).) The Court itself did not single out any factor as controlling.
The suspect-classification status of gender. In a reserved aside, Justice Ginsburg observed that “it remains an open question whether ‘classifications based upon gender are inherently suspect.’” (Harris, supra, 510 U.S. at p. 26 & fn. (Ginsburg, J., concurring).)