Table of Contents

Table of Authorities......................................................................................... iii

Statement of Interest......................................................................................... 1

Statement of the Issues..................................................................................... 1

Statement of the Case....................................................................................... 2

A. Statement of Facts............................................................................. 2

B. District Court’s Opinion.................................................................... 3

Summary of Argument..................................................................................... 5

Argument.......................................................................................................... 6

Betz has stated a plausible Title VII sex discrimination claim and should be

given the opportunity to undertake discovery.............................................. 6

A. Standard of Review........................................................................... 6

B. A claimant need not be directly targeted for a jury to find that she experienced a hostile work environment because of her sex.......................................... 8

C. The district court wrongly limited the evidentiary routes by which a plaintiff may prove that discrimination was “because of sex” in a same-sex harassment case 13

D. Applying the correct legal standards, it is plausible that Betz will be

able to prove that she experienced a hostile work environment because of her sex 17

Conclusion...................................................................................................... 21

Certification Regarding Bar Membership

Certificate of Compliance

Certificate of Service

Table of Authorities

Cases

Andrews v. City of Phila., 895 F.2d 1469 (3d Cir. 1990)........................... 10, 19

Ashcroft v. Iqbal, 556 U.S. 662 (2009).............................................................. 7

Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001)...... passim

Connelly v. Lane Constr. Corp., 809 F.3d 780 (3d Cir. 2016)..................... 7, 13

EEOC v. Boh Bros. Constr. Co., 731 F.3d 444

(5th Cir. 2013) (en banc)................................................................................. 16

Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263 (6th Cir. 2009)... 12

Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993)......................................... 10, 19

Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321 (6th Cir. 2008)....................... 9

Hoyle v. Freightliner, L.L.C., 650 F.3d 321 (4th Cir. 2011)............................ 19

Huff v. Sheahan, 493 F.3d 893 (7th Cir. 2007)............................................... 11

Jensen v. Potter, 435 F.3d 444 (3d Cir. 2006)................................................. 19

Markham v. White, 172 F.3d 486 (7th Cir. 1999)............................................ 19

Medina v. Income Support Div., N.M., 413 F.3d 1131 (10th Cir. 2005).......... 16

Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986)........................................ 8, 11

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998)................. 14-17

Petrosino v. Bell Atl., 385 F.3d 210 (2d Cir. 2004)..................................... 9, 12

Petroza v. Cintas Corp. No. 2, 397 F.3d 1063 (8th Cir. 2005)........................ 16

Phillips v. Cty. of Allegheny, 515 F.3d 224 (3d Cir. 2008)................................ 8

Quick v. Donaldson Co., 90 F.3d 1372 (8th Cir. 1996)....................... 11, 18-19

Rachuna v. Best Fitness Corp., No. 13-365, 2014 WL 1784446

(W.D. Pa. May 5, 2014).................................................................................. 13

Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798

(11th Cir. 2010) (en banc)........................................................................... 9, 12

Renfro v. Unisys Corp., 671 F.3d 314 (3d Cir. 2011)........................................ 6

Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486 (M.D. Fla. 1991) 20

Shepherd v. Slater Steels Corp., 168 F.3d 998 (7th Cir. 1999)........................ 16

Stahl v. Sun Microsystems, Inc., 19 F.3d 533 (10th Cir. 1994)........................ 10

Waltman v. Int’l Paper Co., 875 F.2d 468 (5th Cir. 1989).............................. 10

Watson v. CEVA Logistics U.S., Inc., 619 F.3d 936 (8th Cir. 2010)................ 10

Wiest v. Lynch, 710 F.3d 121 (3d Cir. 2013)..................................................... 7

Yuknis v. First Student, Inc., 481 F.3d 552 (7th Cir. 2007).................... 9, 11, 19

Statute

Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e et seq................................................................................. 1

§ 2000e-2(a)(1).................................................................................. 8, 14

Rules and Regulations

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

Fed. R. Civ. P. 8(a)(2)....................................................................................... 7

Fed. R. Civ. P. 12(b)(6)............................................................................. 5, 6, 7

29 C.F.R. § 1604.11(a)......................................................................... 8, 11, 13

Other Authority

EEOC Policy Guidance on Current Issues of Sexual Harassment,

1990 WL 1104701 (Mar. 19, 1990).................................................................. 9

Statement of Interest

The Equal Employment Opportunity Commission (“EEOC”) is charged by Congress with interpreting, administering, and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This appeal addresses the plausibility of a plaintiff’s allegations of a hostile work environment based on sex where both the plaintiff and the individuals engaged in the challenged conduct are female. Because the EEOC has a strong interest in seeing that courts do not erroneously dismiss hostile work environment claims on the pleadings, the EEOC offers its views to the Court. The EEOC files this brief pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure.

Statement of the Issues

1. When a woman works in an environment that is permeated with sexual harassment of women, may she state a plausible claim of sex discrimination under Title VII without alleging that she has been individually targeted?

2. Given the statement in Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 264 (3d Cir. 2001), that plaintiffs may prove same-sex harassment in any manner consistent with the evidence, did the district court err by limiting Betz to three specific methods of proof?

3. Applying the correct legal standards, is it plausible that Betz will be able to prove that she experienced a hostile work environment because of her sex?

Statement of the Case

A. Statement of Facts

Betz’s complaint alleged that she was a registered nurse at Jeanes Hospital, a branch of Temple Health Systems. R.8, Am. Compl at 3. In November 2012, Temple transferred her to a new floor, where, she alleged, the work environment was sexually offensive. “By way of example,” she said, “the nurses . . . would regularly ‘joke’ with each other by licking, groping, making gestures or pretending to grope each other’s breast and genitals; this occurred on a nearly daily basis.” Id. Additionally, she alleged, nurses made sexually offensive comments. “As an example,” she said, “in response to one nurse complaining that she was stopped for a traffic violation, the other nurses made lewd suggestions including ‘[s]how him the cleavage’ and ‘blow him.’” Id. The complaint also alleged that beginning in December 2013, “nurses Helene (last name unknown) and Anthony (last name unknown) would passionately and openly (so that Plaintiff would see it) kiss each other and rub each other’s genitals.” Id. at 6. Finally, Betz alleged the existence of “a series of sexually offensive photographs . . . portray[ing] women touching each other’s breasts and genitals.” These pictures were displayed for “a number of months.” Id. at 4.

Betz alleged that she repeatedly complained to her supervisor about the sexually offensive environment but the supervisor failed to take remedial action. Additionally, the supervisor threatened Betz with termination if she continued to complain. Id. at 3-4. Betz alleged that she also complained to the nurse manager, but the nurse manager did not take remedial action. Id. at 4. “The nurses’ sexually offensive conduct at work . . . offended [Betz] and continued until the end of [Betz’s] employment with Defendant.” Id.

Betz sued under Title VII alleging that Temple had subjected her to sexual harassment and a hostile work environment because of her sex. R.1, Compl. Temple moved to dismiss this claim for failure to state a cause of action. R.11, Motion.

B. District Court’s Opinion

The district court dismissed the sexual harassment/hostile work environment claim. R.21, Order. “First,” the court said, “Betz fails to allege facts sufficient to show that any discriminatory or harassing behavior was intentionally directed at her. Betz alleges that her coworkers engaged in offensive and inappropriate sexually charged behavior. She alleges that this behavior occurred solely between other nurses, albeit sometimes in her presence. Yet she does not allege facts to show that this conduct occurred only in front of her. To the contrary, she alleges that the general ‘work environment’ was ‘sexually offensive’ and unprofessional. There are no facts in the amended complaint by which the Court can conclude that Betz states a plausible claim that the alleged conduct was intentionally directed at her.” R.20, Op. at 5.

The court then ruled that even if the offensive conduct was “intentionally directed at Betz, she has not alleged facts to show that it was directed at her because of her sex.” Id. Citing Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 262 (3d Cir. 2001), the court said that “[a] plaintiff alleging same-sex sexual harassment must show that (1) the harasser sexually desires the victim, (2) the harasser displays hostility to the presence of a particular sex in the workplace, or (3) evidence exists that the harasser’s conduct was motivated by a belief that the victim did not conform to gender stereotypes.” Id. at 6.

The court rejected Betz’s argument that “the harassing conduct was motivated by the belief that Betz did not conform to gender stereotypes.” Id. “She does not allege that her coworkers made any statements or remarks to show that they believed Betz was not living up to a stereotypical norm of female behavior, however Betz may be defining that phrase. She does not allege facts to show that her coworkers targeted other female workers who refused to join in their behavior. Betz does no more than allege that her female coworkers engaged in sexually explicit behavior that she found offensive and refused to participate in.” Id.

The court concluded that because Betz’s coworkers “appear to have been equal opportunity offenders, putting their lewd conduct on display for all to see,” Betz had not stated a claim for sex discrimination. Id. at 7. Accordingly, the court dismissed the claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

Summary of Argument

The district court wrongly dismissed Betz’s complaint because it misunderstood the controlling law. Contrary to the district court’s understanding, a plaintiff may state a claim through allegations that she endured a hostile work environment because of her sex even if she is not directly targeted for harassment. If the harassment is pervasive, and if the individual is a member of the targeted group, she may be able to prove a violation of Title VII even when the insults are not directed at her. This Court has already recognized the relevance of non-targeted harassment in proving a Title VII claim.

The court also erred in limiting Betz to the three evidentiary routes articulated in Bibby for proving same-sex harassment. See 260 F.3d at 262. Bibby expressly states that these three evidentiary routes are non-exclusive. Moreover, they are designed to be used only after discovery. At that point, as Bibby makes clear, a plaintiff may prove her case in any manner consistent with the evidence.

Because the district court dismissed the sexual harassment claim on a Rule 12(b)(6) motion, Betz has not yet had an opportunity to develop the facts. When viewed in light of the correct legal standards, however, her allegations state a claim of discrimination that is facially plausible. Her allegations are therefore sufficient to survive a motion to dismiss. This Court should reverse the dismissal and allow Betz to proceed to discovery.

Argument

Betz has stated a plausible Title VII sex discrimination claim and should be given the opportunity to undertake discovery.

A. Standard of Review

Federal Rule of Civil Procedure 12(b)(6) permits dismissal of a complaint for failure to state a claim upon which relief can be granted. Renfro v. Unisys Corp., 671 F.3d 314, 320 (3d Cir. 2011). When analyzing a complaint challenged by a 12(b)(6) motion to dismiss, the question before the court is “‘not whether [plaintiffs] will ultimately prevail … but whether [their] complaint was sufficient to cross the federal court’s threshold.’” Id. (quoting Skinner v. Switzer, 562 U.S. 521, 529-30 (2011)). This Court reviews de novo a district court’s grant of a motion to dismiss pursuant to Rule 12(b)(6). Wiest v. Lynch, 710 F.3d 121, 128 (3d Cir. 2013).

Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To satisfy that standard, and thereby survive a motion to dismiss, the complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A complaint need not contain “‘detailed factual allegations’” to meet the pleading standard. Id. (quoting Twombly, 550 U.S. at 555). Nor is an employment discrimination plaintiff required to plead a prima facie case in the complaint. A prima facie case is an evidentiary standard, not a pleading standard, “and hence is ‘not a proper measure of whether a complaint fails to state a claim.’” Connelly v. Lane Constr. Corp., 809 F.3d 780, 789 (3d Cir. 2016) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002), and quoting Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir. 2009)).

Although a complaint must contain “‘enough factual matter (taken as true) to suggest’ the required element,” Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556), it need not satisfy a probability requirement. Rather, it simply must contain “ʻenough facts to raise a reasonable expectation that discovery will reveal evidence of’ the necessary element.” Id.

B. A claimant need not be directly targeted for a jury to find that she experienced a hostile work environment because of her sex.

Title VII broadly prohibits an employer from discriminating against an individual with respect to the “terms, conditions, or privileges of employment, because of such individual’s … sex ….” 42 U.S.C. § 2000e-2(a)(1). Recognizing that the statutory language “evinces a congressional intent ‘to strike at the entire spectrum of disparate treatment of men and women’ in employment,” Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64 (1986), the Supreme Court has interpreted Title VII to preclude discriminatory “hostile work environments” because of sex. Id. at 65; see also EEOC Guidelines on Discrimination Because of Sex, 29 C.F.R. § 1604.11(a) (Title VII prohibits sexual harassment that “has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment” (emphasis added)).

The EEOC has long taken the position that conduct not directly targeted at an individual can still transform her work environment into a hostile or abusive one. See EEOC Policy Guidance on Current Issues of Sexual Harassment, 1990 WL 1104701, at *11 (Mar. 19, 1990) (agreeing that, depending on totality of circumstances, proliferation of pornography and demeaning comments may violate Title VII). Every circuit court to consider the question agrees. See Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 811 (11th Cir. 2010) (en banc) (“Evidence that co-workers aimed their insults at a protected group may give rise to the inference of an intent to discriminate on the basis of sex, even when those insults are not directed at the individual employee.”); Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 335 (6th Cir. 2008) (“[W]e may consider evidence of other acts of harassment of which a plaintiff becomes aware during the period [of] his or her employment, even if the other acts were directed at others and occurred outside of the plaintiff’s presence.”); Yuknis v. First Student, Inc., 481 F.3d 552, 554 (7th Cir. 2007) (an individual who is not a target of harassment may state a claim based on conduct directed at others if she is a member of a group that is being harassed); Petrosino v. Bell Atl., 385 F.3d 210, 222 (2d Cir. 2004) (sexual insults and graffiti not directed specifically at plaintiff “does not, as a matter of law, preclude a jury from finding that the conduct subjected Petrosino to a hostile work environment based on her sex”); Waltman v. Int’l Paper Co., 875 F.2d 468, 478 (5th Cir. 1989) (“ʻ[E]ven a woman who was never herself the object of harassment might have a Title VII claim if she were forced to work in an atmosphere in which such harassment was pervasive.’”) (quoting Vinson v. Taylor, 753 F.2d 141, 146 (D.C. Cir. 1985), aff’d, 477 U.S. 57 (1986)).

This Court has not opined on whether non-targeted harassment may be sufficient, standing alone, to prove a violation of Title VII, but it agrees that such evidence is relevant to a hostile work environment claim. In Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 1990), the plaintiff’s coworkers targeted her, and also openly displayed pornography and regularly referred to women in an “offensive and obscene manner.” Id. at 1472. This Court recognized that “[o]bscene language and pornography quite possibly could be regarded as highly offensive to a woman who seeks to deal with her fellow employees and clients with professional dignity and without the barrier of sexual differentiation and abuse.” Id. at 1485-86 (internal quotation omitted); see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 19 (1993) (considering harassment directed at plaintiff’s female coworkers in addition to harassment directed at plaintiff); Watson v. CEVA Logistics U.S., Inc., 619 F.3d 936, 943-44 (8th Cir. 2010) (awareness of graffiti “could contribute to a hostile work environment”); Stahl v. Sun Microsystems, Inc., 19 F.3d 533, 538 (10th Cir. 1994) (“ʻ[I]ncidents of sexual harassment directed at employees other than the plaintiff can be used as proof of the plaintiff’s claim of a hostile work environment.’”) (citation omitted).

The district court ignored all of this precedent when it dismissed Betz’s hostile work environment claim on the ground that she was not targeted for discrimination. In part, the court did so because the challenged conduct occurred in full view of everyone and because it occurred whether or not Betz was present. The court assumed that Betz’s coworkers intended only to joke with one another and not to harass Betz. R.20, Op. at 2, 7.

This reasoning ignores Title VII’s emphasis on the effect of harassment. 29 C.F.R. § 1604.11(a); Meritor, 477 U.S. at 65. It does not matter that Betz’s coworkers may not have intended to offend her. “A working environment may be deeply hurtful to women even though the [harassers] who created it were merely trying to please themselves, and were thus guilty of insensitivity rather than aggression.” Yuknis, 481 F.3d at 554. The Seventh Circuit has emphasized that conduct aimed at others may support a Title VII claim even when it is motivated by “stupidity and uncouthness” rather than discriminatory intent. Huff v. Sheahan, 493 F.3d 893, 903 (7th Cir. 2007); see also Quick v. Donaldson Co., 90 F.3d 1372, 1379 (8th Cir. 1996) (“personal enmity or hooliganism” sufficient to support hostile work environment claim).

Moreover, a female employee who enters a workforce where women are routinely treated in a sexual manner has not lost the ability to object to the treatment. “It is no answer to say that the workplace may have been vulgar and sexually degrading before [the plaintiff] arrived,” the Eleventh Circuit has explained. “Once [the plaintiff] entered her workplace, the discriminatory conduct became actionable under the law. Congress has determined that [the plaintiff] had a right not to suffer conditions in the workplace that were disparately humiliating, abusive, or degrading.” Reeves, 594 F.3d at 813; see also Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263, 271 (6th Cir. 2009) (although men and women were both exposed to offensive conduct, “considering the nature of the patently degrading and anti-female nature of the harassment, it stands to reason that women would suffer, as a result of the exposure, greater disadvantage in the terms and conditions of their employment than men”); Petrosino, 385 F.3d at 223 (specifically rejecting argument that “common exposure of male and female workers to sexually offensive material necessarily precludes a woman from relying on such evidence to establish a hostile work environment based on sex”).

Betz alleged that she was subjected to a sexualized working environment where women’s breasts and genitals were groped on a nearly daily basis. R.8, Am. Compl. at 3. Although she did not allege that her coworkers targeted her, the allegations of her complaint state a “plausible” claim that her work environment was “intimidating, hostile, or offensive” to her as a woman within the meaning of Title VII. Connelly, 809 F.3d at 786; 29 C.F.R. § 1604.11(a). The district court should have allowed her to conduct discovery, which might well have revealed evidence of discrimination sufficient to prove her Title VII claim.

C. The district court wrongly limited the evidentiary routes by which a plaintiff may prove that discrimination was “because of sex” in a same-sex harassment case.

The district court also erred in dismissing Betz’s claim on the ground that her allegations did not fall within one of the three evidentiary routes articulated in Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 262 (3d Cir. 2001), for establishing that same-sex harassment is “because of sex.” Contrary to the district court’s understanding, the three paths enumerated in Bibby are expressly illustrative, not exclusive. Id. at 264. Moreover, those paths contemplate a fully developed evidentiary record and are meant to be applied at summary judgment or trial, not on a motion to dismiss a complaint. Rachuna v. Best Fitness Corp., No. 13-365, 2014 WL 1784446, at *6-7 (W.D. Pa. May 5, 2014) (denying motion to dismiss same-sex harassment claim because record had not yet been developed). Following discovery, Betz may prove her case in any manner consistent with the evidence.

Title VII does not distinguish between opposite-sex harassment and same-sex harassment. See 42 U.S.C. § 2000e-2(a)(1) (prohibiting discrimination “because of . . . sex”). As the Supreme Court has recognized, same-sex harassment “was assuredly not the principal evil Congress was concerned with when it enacted Title VII[, b]ut statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998). Accordingly, Title VII’s prohibition of sexual harassment prohibits “sexual harassment of any kind that meets the statutory requirements.” Id. (emphasis added).

Rejecting the contention “that recognizing liability for same-sex harassment will transform Title VII into a general civility code for the American workplace,” the Supreme Court observed that “th[is] risk is no greater for same-sex than for opposite-sex harassment, and it is adequately met by careful attention to the requirements of the statute.” Id. at 80. The Court explained: “ʻThe 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.’” Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring)).

The Supreme Court acknowledged that courts have readily inferred sex discrimination in most opposite-sex harassment situations “because the challenged conduct typically involves explicit or implicit proposals of sexual activity.” Id. Such an inference may be harder to draw, the Court said, in cases of same-sex harassment. Id. However, “harassing conduct need not be motivated by sexual desire to support an inference of discrimination based on sex.” Id.

The Oncale Court offered three potential evidentiary paths by way of “example” for proving that same-sex harassment is “because of sex.” Id. at 80-81. First, the Court said, a plaintiff could show that the harasser is homosexual. Second, a plaintiff could show that she had been “harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser [was] motivated by general hostility to the presence of women in the workplace.” Or, third, she could “offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.” Id.

The Oncale list is not exclusive. As the Seventh Circuit explained, “[W]e discern nothing in the Supreme Court’s decision indicating that the examples it provided were meant to be exhaustive rather than instructive. The Court’s focus was on what the plaintiff must ultimately prove rather than the methods of doing so. Indeed, the Court has previously made clear that the means of proving discrimination cannot be reduced to rigid formulae.” Shepherd v. Slater Steels Corp., 168 F.3d 998, 1009 (7th Cir. 1999) (citations omitted). Reaching the same conclusion, the Fifth Circuit observed, “Every circuit to squarely consider the issue has held that the Oncale categories are illustrative, not exhaustive, in nature. Considering that the Court used ‘for example’ and ‘[w]hatever evidentiary route the plaintiff chooses to follow’ in its discussion of those categories, we agree.” EEOC v. Boh Bros. Constr. Co., 731 F.3d 444, 455-56 (5th Cir. 2013) (en banc); see also Medina v. Income Support Div., N.M., 413 F.3d 1131, 1135 (10th Cir. 2005) (Oncale evidentiary routes “are not exhaustive”); Petroza v. Cintas Corp. No. 2, 397 F.3d 1063, 1068 (8th Cir. 2005) (same).

The Bibby Court agreed that Oncale did not state the exclusive means of proving that same-sex harassment is because of sex, explaining that “there are at least three ways by which a plaintiff alleging same-sex sexual harassment might demonstrate that the harassment amounted to discrimination because of sex.” 260 F.3d at 264 (emphasis added). “Based on the facts of a particular case and the creativity of the parties, other ways in which to prove that harassment occurred because of sex may be available.” Id. Indeed, Bibby itself offered a method of proof not discussed in Oncale: “[A] plaintiff may be able to prove that same-sex harassment was motivated by a belief that the victim did not conform to stereotypes of his or her gender.” Id. at 262-63.

The district court overlooked Bibby’s plain language acknowledging that plaintiffs are not limited in how they may demonstrate that same-sex harassment is because of sex. The court’s insistence that Betz comply with one of Bibby’s three specified evidentiary routes constitutes reversible error.

D. Applying the correct legal standards, it is plausible that Betz will be able to prove that she experienced a hostile work environment because of her sex.

The district court overlooked other potential methods by which Bibby could prove that she experienced a hostile work environment “because of sex.” As the Supreme Court noted in Oncale, a plaintiff may prove that harassment is “because of sex” through comparative evidence about the experience of men and women in the workplace. 523 U.S. at 80-81. Betz’s complaint indicates the presence of at least one male nurse (Anthony) in her workplace (R.8, Am. Comp. at 6), and discovery may reveal more. Because this case is only at the pleading stage, the evidence about the gender composition of the workforce and the experience of Betz’s male coworkers is not yet developed.

Additionally, Betz may be able to rely on the sex-specific nature of the harassing conduct. In Quick v. Donaldson Co., 930 F.3d 1372, Quick joined a predominantly male workforce in which male employees routinely engaged in “bagging,” a practice where they grabbed and squeezed a coworker’s testicles. Quick’s supervisor warned him when he was hired that he might be subjected to this practice. Within his first two years on the job, Quick alleged, at least twelve different male coworkers bagged him approximately 100 times. The Eighth Circuit acknowledged that the bagging was aimed at his sexual organs and that the record was devoid of evidence of any female employees being bagged. Holding that a reasonable jury could find that men were subjected to “disadvantageous terms or conditions of employment to which members of the other sex [were] not exposed,” the court reversed the award of summary judgment to the employer. Id. at 1379.

As in Quick, Betz alleged that her coworkers targeted female sexual organs. She alleged that they groped one another’s breasts and genitals, licked one another, and made sexually offensive comments. R.8, Am. Compl. at 3. With the exception of one opposite-sex couple who groped one another, id. at 6, all of this conduct was directed at women. “Evidence that members of one sex [are] the primary targets of the harassment is sufficient to show that the conduct was gender based . . . .” Quick, 90 F.3d at 1378. Additionally, facially sexual conduct usually supports an inference of sex-based intent. Jensen v. Potter, 435 F.3d 444, 454 (3d Cir. 2006).

It is plausible that, as alleged in her complaint, Betz endured a hostile work environment “because of sex” based on the fact that she, as a woman, was a member of the group being targeted. See Yuknis, 481 F.3d at 554. Even though her coworkers directed their conduct at one another and not at her,[1] Betz was subjected to a working environment in which women were routinely treated as sex objects. Betz has raised a reasonable inference that discovery will reveal that the sexualized work environment was more detrimental to women than to men, thereby satisfying Title VII’s “because of sex” requirement. See Hoyle v. Freightliner, L.L.C., 650 F.3d 321, 331-32 (4th Cir. 2011) (sexualizing work environment may be more detrimental to female employees than to male employees, showing hostile work environment “because of sex”); Markham v. White, 172 F.3d 486, 493 (7th Cir. 1999) (comments about women could be “because of sex” even though they were directed to both men and women; “[o]nly someone with no sense of the real world could think that male and female participants in the training session would perceive these comments in the same way”); Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1523 (M.D. Fla. 1991) (Title VII prohibits conduct “convey[ing] the message that [women] are welcome in the workplace only if they will subvert their identities to the sexual stereotypes prevalent in that environment”).

Conclusion

Betz has stated a plausible Title VII claim, and the district court erred by dismissing it on the pleadings. Because the court misunderstood Title VII, it evaluated the complaint in light of incorrect legal standards. The EEOC respectfully asks this Court to reverse the dismissal of the hostile work environment claim and to remand for further proceedings.

Respectfully submitted,

P. DAVID LOPEZ /s/ Gail S. Coleman

General Counsel Attorney

Maryland Bar #1991010800003

JENNIFER S. GOLDSTEIN EQUAL EMPLOYMENT

Associate General Counsel OPPORTUNITY COMMISSION

Office of General Counsel

MARGO PAVE 131 M Street, NE, Room 5SW24L

Assistant General Counsel Washington, DC 20507

(202) 663-4055

gail.coleman@eeoc.gov

[1] As explained above, supra at 10, conduct directed towards others is relevant to a hostile work environment claim. Andrews, 895 F.2d at 1485-86. Such conduct is not sufficient to establish a Title VII violation, however, as the factfinder must still find that “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.’” Harris, 510 U.S. at 21 (citation omitted).