STATEMENT OF JURISDICTION

This is an appeal and cross-appeal from a final judgment of the district court entered after a jury verdict in a government enforcement action brought by Plaintiff-Appellee Cross-Appellant Equal Employment Opportunity Commission (“EEOC” or “Commission”) under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (Title VII). The district court had jurisdiction under 42 U.S.C. § 2000e-5(f)(3) and 28 U.S.C. §§ 451, 1331, 1337, 1343, and 1345.

On December 21, 2016, the jury returned a verdict in favor of the EEOC and the district court entered judgment. R.234 (SA.2; ECF No.14-2) (Judgment).[1] On January 18, 2017, Defendant-Appellant Cross-Appellee Costco Wholesale Corp. (“Costco”) timely filed a motion for judgment as a matter of law and a motion for new trial. Fed. R. Civ. P. 50, 59. On May 15, 2017, the district court denied those motions. R.272 (SA.7; ECF No.14-12) (Minute Order Den. Post-Trial Mots.); R.273 (SA.8-26; ECF No.14-12) (Post-Trial Op.).

On July 14, 2017, Costco timely filed a notice of appeal. R.274 (Costco Notice of Appeal); see Fed. R. App. P. 4(a)(1)(B)(i), (4)(A)(i). On July 18, 2017, the EEOC timely filed a notice of cross-appeal. R.278 (EEOC Notice of Cross-Appeal); see Fed. R. App. P. 4(a)(3). This Court has jurisdiction over Costco’s appeal and the EEOC’s cross-appeal under 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

I. Whether the district court correctly denied Costco’s motion for judgment as a matter of law after a jury entered a verdict for the EEOC on the EEOC’s Title VII hostile work environment claim.

II. Whether the district court erred in concluding, as a matter of law, that the EEOC could not seek backpay on behalf of Suppo.

STATEMENT OF THE CASE

I. Course of Proceedings

The EEOC brought this enforcement action on behalf of Charging Party Dawn Suppo under Section 703 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, alleging that Costco discriminated against Suppo on the basis of sex and seeking relief including compensatory and punitive damages, backpay, and injunctive relief. R.1 at 3-4 / 3-4 (ECF No.14-2) (Compl.). The EEOC alleged that Costco created and tolerated a hostile work environment in which Thad Thompson, a Costco member, subjected Suppo to objectively offensive harassment. Id. at 3 / 3. The EEOC also alleged that Costco constructively discharged Suppo. Id.

The district court denied Costco’s motion for summary judgment on the EEOC’s hostile work environment claim, but granted summary judgment on the EEOC’s constructive discharge claim. R.104 at 23 / 1802 (ECF No.14-2) (Summ. J. Op.). The EEOC’s hostile work environment claim proceeded to trial, at which the EEOC sought relief including compensatory and punitive damages and backpay on behalf of Suppo, plus injunctive relief. R.194 at 42 / 9641 (ECF No.14-2) (Final Pre-Trial Order).

At trial on the EEOC’s hostile work environment claim, which began December 12, 2016, and ended December 21, 2016, the jury heard five days of testimony. See R.239; R.240; R.241; R.242; R.243; R.244; R.245; R.247 (Trial Tr. Vols. 1-8). The jury returned a verdict in favor of the Commission. R.234 (SA.2; ECF No.14-2) (Judgment). The jury awarded $250,000 in compensatory damages—$200,000 for emotional distress and $50,000 for medical treatment expenses—but declined to award punitive damages. Id.; R.235 (Jury Verdict); R.247 at 1226-27 / 14263-64 (Trial Tr. Vol. 8).

The parties filed post-trial motions, which the court denied in full. R.273 at 1 / 14614 (SA.8; ECF No.14-12) (Post-Trial Op.).[2] Relevant to this appeal, the district court denied Costco’s Rule 50 motion for judgment as a matter of law and the EEOC’s motion for backpay. Id. at 1-2 / 14614-15 (SA.8-9). The district court also denied Costco’s Rule 59 motion for a new trial and the EEOC’s motion for injunctive relief. Id.[3]

In denying Costco’s motion for judgment as a matter of law, the district court rejected Costco’s argument that no jury could find that Costco subjected Suppo to severe or pervasive harassment because of her sex. Id. at 2 / 14615 (SA.9). First, the district court concluded that the jury could have rationally found that Suppo experienced severe or pervasive harassment, noting that Suppo testified that Thompson engaged in “ominous staring, unwanted physical touching, unwanted requests for dates, and overly intrusive personal questions, including whether she had a boyfriend.” Id. at 4 / 14617 (SA.11). The district court also explained that Suppo’s description of Thompson’s conduct “suggest[ed] that [Thompson] had been watching her on other occasions.” Id. And the district court observed that Thompson confirmed some of Suppo’s testimony; for example, Thompson admitted that he continued to approach Suppo even after Costco management told him to avoid her. Id. Therefore, the district court concluded, “added together and given the length of time over which they occurred,” Thompson’s conduct “rose to the level of a subjectively and objectively hostile work environment.” Id.

Second, the district court concluded that the jury could have rationally found that Thompson harassed Suppo based on her sex. The district court emphasized that Suppo, who is female, testified that Thompson, who is male, commented on her body, stared at her, touched her, and made advances, among other things. Id. at 5 / 14618 (SA.12). The district court added that there was nothing in the record suggesting that Thompson displayed similar behavior towards male employees. Id.

The district court’s post-trial order also denied the EEOC’s motion for backpay, holding that the EEOC was not entitled, as a matter of law, to pursue backpay for Suppo. Id. at 12 / 14625 (SA.19). The EEOC sought approximately $46,000 for a period beginning when the hostile work environment forced Suppo to take unpaid medical leave from Costco, continuing after Costco terminated Suppo in November 2012, and extending until Suppo started a new position over three years later, around January 2015. Id. at 11 / 14624 (SA.18). The district court reasoned that the EEOC was required to prove involuntary termination to obtain backpay. Id. at 12 / 14625 (SA.19). In reaching this conclusion, the district court relied on Hertzberg v. SRAM Corp., 261 F.3d 651 (7th Cir. 2001), which stated that “[a] victim of discrimination that leaves his or her employment as a result of … discrimination must show either an actual or constructive discharge in order to receive the equitable remedy of reinstatement, or back [pay] and front pay in lieu of reinstatement.” Id. at 11 / 14624 (SA.18) (quoting Hertzberg, 261 F.3d at 659).

The EEOC had argued that the present case is analogous to Townsend v. Indiana University, 995 F.2d 691 (7th Cir. 1993), which acknowledged that an employment discrimination plaintiff may recover backpay for wages lost during unpaid leave resulting from a hostile work environment. Id. at 693. Townsend explained that involuntary termination is not required to obtain backpay because “[t]he statute does not key the plaintiff’s rights to termination, but to discrimination, of which sexual harassment has been held to be a form.” Id. In declining to apply Townsend, the district court emphasized that Hertzberg post-dated Townsend, highlighted changes in constructive discharge doctrine since this Court decided Townsend, and noted that Townsend involved a prior version of Title VII, before Congress passed the 1991 amendments. R.273 at 13 / 14626 (SA.20; ECF No.14-12) (Post-Trial Op.); see Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071.

II. Statement of Facts

Dawn Suppo began working at Costco’s Glenview, Illinois, warehouse as a seasonal employee in late 2009. R.239 at 12 / 13040 (Trial Tr. Vol. 1). In May 2010, Costco hired Suppo on a permanent basis as a part-time Front-End Assistant. Id. Suppo loved her work at Costco. R.240 at 88, 217 / 13116, 13245 (Trial Tr. Vol. 2). Her duties included conducting “go-backs,” which involved collecting merchandise from around the warehouse and restocking it on the warehouse floor, typically using a shopping cart. Id. at 87-88, 214-16 / 13115-16, 13242-44. When conducting go-backs, Suppo typically did not work in a specific area of the warehouse. Id. Instead, she circulated around the warehouse, which is 148,663 square feet, roughly the area of two-and-one-half football fields. R.239 at 12 / 13040 (Trial Tr. Vol. 1).

A. Suppo’s first encounters with Thompson and initial complaints

Around early June 2010, soon after Suppo began working as a permanent employee, a Costco member named Thad Thompson approached Suppo while she was working. R.240 at 98-99 / 13126-27 (Trial Tr. Vol. 2). Although Suppo had “never” encountered Thompson before, Thompson called her by her first name (which was on her name tag) and told her that he had seen her speaking to a male Costco employee. Id. at 97-99 / 13125-27; R.241 at 335-36 / 13364-65 (Trial Tr. Vol. 3). At this first encounter, Thompson asked Suppo several personal questions and inquired where she lived. R.240 at 99 / 13127 (Trial Tr. Vol. 2). Thompson approached Suppo again a couple days later, and he again posed personal questions, which Suppo felt were not “appropriate.” Id. at 100 / 13128. Suppo told Thompson she “had to go back to work and just kept working.” Id. The third time Suppo spotted Thompson, she was working in the clothing section, and she noticed Thompson watching her, wearing sunglasses and a hat. Id. at 101 / 13129.

On two occasions around July or August 2010, Suppo complained to Loss Prevention Clerk Daniro Hernandez that a Costco member was “constantly try[ing] to speak with her,” making her “uncomfortable.” R.241 at 550 / 13759 (Trial Tr. Vol. 3) (Hernandez testimony). Hernandez reviewed warehouse security camera footage and identified a man wearing sunglasses talking to Suppo. Id. at 558 / 13587. Suppo also complained to Front-End Manager Don Currier around July or August 2010. Id. at 449 / 13478. As Currier testified, Suppo reported that a member, who was wearing sunglasses, told her that she looked scared. Id. at 449-50 / 13478-79. Currier acknowledged that this was “not a normal conversation between a member and an employee.” Id. at 450 / 13479.

Around the same time, Currier, Hernandez, and Assistant General Manager Greg West met with Thompson, whom Suppo pointed out to Currier. Id. at 449-51 / 13478-80. During this meeting, Thompson acknowledged that he told Suppo that she looked scared. Id. at 345 / 13374. Thompson recollected that he had walked up to Suppo and asked her if she had a problem with him, but she was speaking to someone and did not respond. Id. at 340-43 / 13369-72. Then, he saw Suppo again from across the store and accosted her, telling her that she “look[ed] scared.” Id.

Hernandez testified that, during the meeting, Thompson denied any wrongdoing, and appeared “defensive” and “pissed,” began speaking “louder,” stated that it is a “free country,” and invoked “freedom of speech” when told to avoid Suppo. R.242 at 579-81 /13609-11 (Trial Tr. Vol. 4). Currier acknowledged that he recalled Thompson saying, at the meeting or on another occasion, that he, Thompson, would stop trying to “fix” Suppo. R.241 at 452-53 /13481-82 (Trial Tr. Vol. 3).

Thompson recalled that Costco management asked him to avoid talking to Suppo. Id. at 414 / 13443. According to Currier, he directed Thompson to “minimalize contact with [Suppo] and conversation with [Suppo],” but he did not tell Thompson to stop shopping at the Glenview warehouse. Id. at 451 / 13480. Costco did not conduct an investigation into Suppo’s complaint after this meeting. Id.

Currier told Suppo what happened in the meeting, and, as Currier testified, Suppo told him she was “upset” that Thompson was still permitted to shop at the Glenview warehouse. Id. at 454 /13483. On August 4, 2010, Suppo reported Thompson’s conduct to the local police because she believed that Costco management took insufficient steps to curb Thompson’s behavior. R.188-6 (ECF No.14-6) (Joint Trial Ex. 6); R.240 at 116-17 / 13144-45 (Trial Tr. Vol. 2). Suppo told the police she was afraid of Thompson. R.240 at 117 / 13145 (Trial Tr. Vol. 2).

When Currier and West learned that Suppo had reported Thompson to the police, West yelled at Suppo and told her to be friendly to Thompson, although she told him that she was afraid of Thompson. Id. at 118-20 / 13146-48. Suppo recalled that she observed Currier speaking to the police by phone from the office at the Glenview warehouse, and that Currier gave the police Thompson’s name (which Suppo did not know). Id. at 117-18 / 13145-46. Then, when Suppo was in the office with Currier and West, the police telephoned her and she spoke to an officer while Currier and West were present. Id. at 118-19 / 13146-47. Thompson also learned that Suppo contacted the police. R. 241 at 348-49 / 13377-78 (Trial Tr. Vol. 3).

B. Thompson’s harassment persisted and grew more serious, as Suppo continued to complain.

Although Thompson understood that Costco management told him to avoid Suppo, Thompson knew Suppo contacted the police, and Suppo continued to report his conduct to management, Thompson continued harassing Suppo until September 2011, when she began a leave of absence. As Suppo testified, “[I]t got worse, but he never stopped.” R. 240 at 116 / 13144 (Trial Tr. Vol. 2).

Thompson repeatedly approached Suppo at the Glenview warehouse, bombarding Suppo with questions that she found intimate. Id. at 180-85 / 13208-13. Thompson acknowledged that he began approaching Suppo again after the July or August 2010 meeting. R.241 at 415, 421 / 13444, 13450 (Trial Tr. Vol. 3). Thompson asked Suppo where she lived “multiple times,” which made Suppo “uncomfortable” because, she testified, “when you first meet someone ... they don’t usually ask you your address.” R.240 at 182 / 13210 (Trial Tr. Vol. 2). He inquired whether Suppo had another job, and what she did after work. Id. at 183 / 13211. At times, Suppo felt that Thompson was asking these personal questions in a sexual way, and she perceived that Thompson aimed to gather information about her. Id. at 184-85 / 13212-13.

Thompson frequently commented on Suppo’s appearance. Suppo testified that Thompson told her she was “pretty” on a couple occasions, and Thompson acknowledged that he told Suppo that she was “very beautiful.” Id. at 110 / 13138; R.241 at 354 / 13383 (Trial Tr. Vol. 3). Suppo recalled that Thompson said that she was “exotic looking, just different looking.” R.240 at 110 / 13138 (Trial Tr. Vol. 2). He “constantly” asked where Suppo was from and inquired about her nationality. Id. 104-05 / 13132-33.

Thompson asked Suppo her age “over and over again”; she recalled that “[h]e kept saying he had to know how old I was.” Id. at 103-04 / 13131-32. Suppo told Thompson directly two or three times that she would not answer his questions about her age. Id. at 104 / 13132. But Thompson still speculated about Suppo’s age, opining that certain features made her appear older, while other parts of her body seemed younger. Id. at 103, 108 / 13131, 13136. Suppo, who was in her early forties when she worked at Costco, testified that Thompson said that “he couldn’t tell if I was 17 or 27.” Id. at 102-03 / 13130-31. Thompson confirmed that he commented on Suppo’s age, telling her that she looked 25 or 35, and that he later told West about a conversation where he asked Suppo about her age. R.241 at 354-55, 363-64 / 13383-84, 13392-93 (Trial Tr. Vol. 3).

Thompson also made advances towards Suppo and questioned Suppo about her interactions with men. He asked Suppo if she had a boyfriend, he inquired about Suppo’s conversations with male employees, and he asked about a man he saw shopping with Suppo. R.240 at 104-06 / 13132-34 (Trial Tr. Vol. 2). Although she repeatedly rebuffed him, Thompson asked Suppo for dates on six separate occasions. Id. at 171 / 13199. At trial, Thompson acknowledged that he asked Suppo to have lunch with him. R.241 at 416 / 13444 (Trial Tr. Vol. 3). Thompson attempted to give Suppo his phone number by thrusting his business card into Suppo’s hand; he continued to push the card into her hand although she refused to take it. R.240 at 172-75 / 13200-03 (Trial Tr. Vol. 2). Also, Thompson “constantly” tried to give Suppo his phone number through other means, including verbally. Id.

Thompson encroached on Suppo’s personal space, even physically touching her. Twice, Thompson tried to hug Suppo. Id. at 178-79 / 13206-07. On one occasion, Thompson touched Suppo’s face, commenting, as Suppo recalled, that “he noticed a little bit of darkness under my eye.” Id. at 107, 177-78 / 13135, 13205-06. Another time, Thompson touched Suppo’s arm while observing that she had visible veins on her arm and a sore on her hand that was healing slowly. Id. at 107-08, 175-77 / 13135-36, 13203-04. On four occasions, Thompson physically bumped Suppo with his body or his shopping cart. Id. at 109-10, 179-80 / 13137-38, 13207-08.

Suppo found Thompson’s overtures overly “personal” because he was sometimes “too close into my face” when addressing her. Id. at 184 / 13212. At trial, Thompson acknowledged being in close proximity to Suppo on at least one occasion, close enough to observe that she was wearing more makeup on one eyebrow than the other. R.241 at 355-57 / 13384-86 (Trial Tr. Vol. 3). Thompson said he saw Suppo twice that day and that he “noticed that she had obviously powdered her face” after the first time he saw her. Id.

Thompson’s conduct culminated in stalking, as he repeatedly followed, monitored, and harassed Suppo. Suppo recalled that, on three occasions, she caught Thompson watching her as she worked. R.240 at 188-92 / 13216-19 (Trial Tr. Vol. 2). He sometimes hid behind a clothing display while spying on Suppo, or wore sunglasses and a hat, although he was inside the store. Id. at 188-90 / 13216-18. Thompson monitored Suppo’s interactions with men, as demonstrated by his “constant[]”questions about Suppo’s conversations with male employees and a man he saw shopping with Suppo. Id. at 105-06 / 13133-34.

A “few times,” Thompson asked Suppo if she was scared, and she responded that she was. Id. at 140 / 13168. Suppo recalled that “[a]t times” Thompson would ask her if “he freak[ed] [her] out.” Id. Due to Suppo’s fear of Thompson, she requested a parking spot closer to the warehouse (which Costco denied) and asked her father to pick her up after work “for many months.” Id. at 140-41 / 13168-69.

Thompson’s stalking reached an apex when, on September 1, 2011, Thompson videotaped Suppo with his phone. Id. at 126 / 13154. This occurred after Thompson approached Suppo when she was conducting go-backs and asked to speak with her. Id. at 126-27 / 13154-55. When Suppo declined, Thompson’s face “got red, he whipped his cart around[,]” and “he flew down the aisle.” Id. Soon afterwards, she saw Thompson from afar and noticed that he was videotaping her, “pointing” his phone at her. Id. at 128 / 13156. As Suppo testified, “I saw my face on his telephone.” Id. at 192 / 13220. Suppo told Thompson to leave her alone, and he responded, “Okay, I’ll leave you alone, mysterious Dawn.” Id. at 128 / 13156.

During this time period, Thompson’s conduct persisted although Suppo continued to alert Currier of Thompson’s behavior (but not West, because he yelled at her when she went to the police). Id. at 116-20 / 13144-48. Moreover, Currier was present on one occasion when Thompson approached Suppo and another occasion when Thompson bumped Suppo’s shopping cart, which she was using to conduct go-backs. Id. at 120-25 /13148-53. Currier acknowledged that he apologized to Thompson six to ten times between August 2010 and September 2011 for Costco’s “handling” of the July or August 2010 meeting. R.241 at 463-64 / 13492-93 (Trial Tr. Vol. 3).

Thompson testified that, on several occasions between November 2010 and May 2011, he told West that he had spoken to Suppo, but West did not tell Thompson to change his behavior. Id. at 360-64 / 13389-93. West acknowledged that he spoke to Thompson around March or April 2011, and that Thompson told him that he, Thompson, seemed to “bump into” Suppo throughout the warehouse. R.243 at 792-95 / 13823-26 (Trial Tr. Vol. 5). West recalled that Thompson said he was not stalking Suppo, but that he may appear to “star[e]” at Suppo because “there’s something unusual about her looks.” Id. Thompson confirmed that he told West Suppo’s appearance was “unusual.” R.241 at 368 / 13397 (Trial Tr. Vol. 3).

C. Suppo began a medical leave of absence and encountered Thompson at the Mettawa Costco.

After the videotaping incident, Suppo returned to work for one day on September 6, but, due to significant emotional distress, she began an unpaid medical leave of absence on September 11. R.239 at 13 / 13041 (Trial Tr. Vol. 1); R.240 at 132-34 / 13160-62 (Trial Tr. Vol. 2). Soon after the videotaping incident, Suppo again reported Thompson’s conduct to the local police and obtained a temporary stalking no-contact order against Thompson. R.240 at 130-32, 135 / 13158-59, 13163 (Trial Tr. Vol. 2). Then, on September 29, 2011, the Circuit Court of Cook County extended Suppo’s stalking no-contact order for one year, at a hearing that Thompson and Suppo’s father, Martin Suppo, attended. Id. at 134-35 / 13162-63; R.188-11 (ECF No.14-6) (Joint Trial Ex. 11); R.242 at 594 / 13624 (Trial Tr. Vol. 4). Among other things, the stalking no-contact order prohibited Thompson from coming within 200 feet of Suppo’s place of employment (i.e., the Glenview Costco). R.188-11 (ECF No.14-6) (Joint Trial Ex. 11); R.240 at 136 / 13164 (Trial Tr. Vol. 2). Suppo and Martin Suppo informed Costco of the stalking no-contact order. R.240 at 134-36 / 13162-64 (Trial Tr. Vol. 2); R.242 at 594-96 / 13624-26 (Trial Tr. Vol. 4).

A couple days after Suppo received the extended stalking no-contact order, Thompson telephoned Martin Suppo at work and left a voicemail in which he stated, “I’m no threat.” R.241 at 388-89 / 13417-18 (Trial Tr. Vol. 3); R.242 at 596-97 / 13626-27 (Trial Tr. Vol. 4). Thompson claimed he contacted Martin Suppo regarding a business issue, but Martin Suppo testified that he had no business relationship with Thompson. R.241 at 388-89 / 13417-18 (Trial Tr. Vol. 3); R.242 at 596-97 / 13626-27 (Trial Tr. Vol. 4).

Even after the videotaping incident, Costco initially declined to bar Thompson from the Glenview warehouse. Suppo testified that Kristen D’Agostino, Manager of the Glenview warehouse, told her that “[Thompson] was still allowed in the store because [D’Agostino] felt that he hadn’t physically threatened me. [D’Agostino] said it was my issue, not Costco’s or [Currier’s] issue.” R.240 at 134-36 / 13162-64 (Trial Tr. Vol. 2). Thompson’s member record shows that he made purchases at the Glenview warehouse on September 7 and September 14. R.243 at 773 / 13804 (Trial Tr. Vol. 5).

Costco eventually asked Thompson not to shop at the Glenview Costco, but Costco did not inform Suppo of this decision until late November 2011. R.240 at 136-37 / 13164-65 (Trial Tr. Vol. 2). Costco suggested that Thompson shop instead at the warehouse in Mettawa, Illinois, which was about the same distance from Thompson’s house as the Glenview warehouse. R.188-12 (ECF No.14-16) (Joint Ex. 12).

Then, in February 2012, while Suppo was still on medical leave, she encountered Thompson at the Mettawa warehouse, where she was shopping with her father. R.240 at 137-38 / 13165-66 (Trial Tr. Vol. 2). In violation of the stalking no-contact order, which was still in effect, Thompson screamed profanity at Suppo and aggressively approached her. Id.; R.241 at 390-93 / 13419-22 (Trial Tr. Vol. 3). After this incident, Costco revoked Thompson’s membership. R.241 at 393 / 13422 (Trial Tr. Vol. 3).

Suppo never returned to work at Costco after beginning her medical leave of absence. R.239 at 13 / 13041 (Trial Tr. Vol. 1); R.240 at 132-34 / 13160-62 (Trial Tr. Vol. 2). Costco terminated her in November 2012 because her medical leave of absence had extended more than twelve months. R.239 at 13 / 13041 (Trial Tr. Vol. 1). Due to acute emotional distress, Suppo remained unable to work, at any job, until December 2014. R.240 at 138-39 / 13166-67 (Trial Tr. Vol. 2). Suppo’s treating psychiatrist, Dr. Bulbul Bahugana, testified that Suppo sought treatment because she could not work due to stalking by a Costco customer. R.243 at 812, 831, 849-51 / 13843, 13862, 13880-82 (Trial Tr. Vol. 5). According to Dr. Bahugana, her treatment of Suppo focused on issues related to Suppo’s experience at Costco. Id. at 831, 849-51 / 13862, 13880-82. The jury found that Suppo experienced emotional distress as result of the harassment she experienced at Costco and awarded $200,000 in compensatory damages for her distress. R.235 (Jury Verdict); R.247 at 1226-27 / 14263-64 (Trial Tr. Vol. 8).

D. Costco’s membership policies and member records

Costco’s customers are known as “members.” R.239 at 11 / 13039 (Trial Tr. Vol. 1). At the relevant time, Costco’s Glenview warehouse had about 50,000 members. Id. As Costco acknowledged, the company has the authority to remove a member from a warehouse on a particular day, pause a membership pending an investigation, “trespass” a member (that is, bar the member from a specific Costco warehouse), or revoke membership. Costco Br. 4-5; R.240 at 273 / 13301 (Trial Tr. Vol. 2); R.244 at 1022-23 / 14053-54 (Trial Tr. Vol. 6). Costco has terminated memberships for a wide range of reasons, such as trespassing, retail theft, or “an altercation,” and can “block [a] membership “immediately” in a situation where the police are involved or a member “broke a policy.” R.240 at 273 / 13301 (Trial Tr. Vol. 2); R.244 at 1023 / 14054 (Trial Tr. Vol. 6).

Costco maintains records of each member’s purchase history. As West testified at trial, a member record marks the time and date of the member’s purchases, not visits to the store. R.243 at 771-72 / 13802-03 (Trial Tr. Vol. 5) (“[E]very transaction that goes through the register is noted electronically.”) According to West, Costco does not monitor when members enter or exit a warehouse. Id. at 775-76 / 13806-07.

According to Costco, Thompson’s member record reflects that he made purchases at the Glenview warehouse during Suppo’s scheduled shifts on twenty occasions during the relevant time period. Costco Br. 20.[4] However, Thompson’s member record does not reflect his visits to the Glenview warehouse when he did not make a purchase, because a member record only marks register transactions. R.243 at 771-72 / 13802-03 (Trial Tr. Vol. 5). As Suppo testified, sometimes, when she encountered Thompson in the warehouse, there was “nothing in his [shopping] cart,” or only “a few items in his cart.” R.240 at 110 / 13138 (Trial Tr. Vol. 2). The trial record as a whole suggests that Thompson visited the Glenview warehouse on dates not reflected in his member record purchase history.

For example, Suppo testified that Thompson first approached her in late May or early June 2010, and that she saw Thompson again a couple days later. Id. at 98-100 / 13126-28. Thompson’s member record shows that June 7, 2010, was the first day Thompson made a purchase during one of Suppo’s scheduled shifts (after she started full time). R.192-7 at 84-86 / 6854-56 (ECF No. 14-8) (Def. Trial Ex. 7); R.192-8 at 2-4 / 6947-49 (ECF No. 14-8) (Def. Trial Ex. 8). Suppo was scheduled to work the next three days, but Thompson’s next purchase did not occur until June 15. R.192-7 at 84-86 / 6854-56 (ECF No.14-8) (Def. Trial Ex. 7); R.192-8 at 2-4 / 6947-49 (ECF No.14-8) (Def. Trial Ex. 8). Together, Suppo’s testimony, her work schedule, and Thompson’s member record suggest that either Suppo’s first or second encounter with Thompson (or both) occurred on a date when Thompson visited the Glenview warehouse, but did not make a purchase.

As another illustration, Suppo filed a police report on August 4, and the police report states that Suppo reported a suspicious incident involving Thompson that occurred on August 1. R.188-6 (ECF No.14-6) (Joint Trial Ex. 6); R.240 at 117 / 13145 (Trial Tr. Vol. 2). Suppo was scheduled to work on August 1, but Thompson’s member record does not reflect a purchase that day, nor on August 2 or 3. R.192-7 at 91-93 / 6861-63 (ECF No.14-8) (Def. Trial Ex. 7); R.192-8 at 9-11 / 6954-56 (ECF No.14-8) (Def. Trial Ex. 8). Thompson made a purchase on July 31, but Suppo was not scheduled to work that day; instead, July 25 was the most recent day when Thompson made a purchase and Suppo was scheduled to work. R.192-7 at 91-93 / 6861-63 (ECF No.14-8) (Def. Trial Ex. 7); R.192-8 at 9-11 / 6954-56 (ECF No.14-8) (Def. Trial Ex. 8). Thus, the record suggests that Thompson visited the warehouse in the days leading up to August 4, although he made no purchase.

SUMMARY OF ARGUMENT

This Court should affirm the district court’s denial of Costco’s motion for judgment as a matter of law. After hearing five days of testimony, the jury concluded that Thompson’s harassment of Suppo amounted to a hostile work environment based on sex, for which Costco was liable. The district court correctly denied Costco’s motion for judgment as a matter of law because the trial evidence supported the jury’s determination that Thompson’s harassment was objectively hostile and based on sex.

Thompson singled Suppo out for unwelcome harassment despite her consistent efforts to get him to leave her alone. Though she repeatedly refused his advances, he asked her out for multiple dates and engaged in physical contact without her consent. Thompson stalked Suppo by observing her from afar, monitoring her interactions with men, and videotaping her on his phone. He constantly asked Suppo’s age, frequently commented on her appearance, and attempted to give her his phone number. Contrary to Costco’s argument on appeal, the jury could have reasonably found that Thompson regularly visited the Glenview warehouse; that is, more frequently than reflected in Costco’s records of Thompson’s purchases.

Viewing Thompson’s conduct in the context of the totality of the circumstances, the jury rationally could have deemed Thompson’s harassment objectively hostile and based on Suppo’s sex. The jury could have taken into account Suppo’s work environment, a cavernous Costco warehouse. The jury could have found that Thompson’s conduct would have seemed particularly unsettling to Suppo because he was a stranger. And the jury could have determined that Thompson’s status as a customer—and Costco management’s failure to address his behavior—reasonably influenced Suppo’s perception of his conduct. Because Thompson’s behavior was directed at Suppo, stemmed from an infatuation with Suppo, and included unwanted touching and stalking (which prompted her to obtain a stalking no-contact order), the jury could have deemed his conduct severe. The jury also could have concluded that Thompson’s harassment was pervasive based on Suppo’s testimony of “constant” encounters and based on Thompson’s persistence despite efforts to deter him. Finally, the jury could have inferred that Thompson’s harassment was based on sex, because it was based on sexual desire, or because Thompson treated Suppo differently from male employees.

This Court should reverse the district court’s determination that, as a matter of law, the EEOC could not seek backpay on behalf of Suppo. Townsend authorizes backpay for Title VII plaintiffs rendered unable to work due to psychological distress stemming from the employer’s unlawful action. Permitting backpay in such circumstances is consistent with the purpose of Title VII. The EEOC presented evidence at trial from which a factfinder could determine that Suppo became unable to work because of Thompson’s harassment, and the EEOC is entitled to seek backpay for the period when Suppo was unable to work. Finally, the district court relied on Hertzberg in denying the EEOC’s request for backpay, but that decision is inapposite and neither Hertzberg nor the Civil Rights Act of 1991 overruled Townsend.

ARGUMENT AS APPELLEE (No. 17-2432)

I. Standard of review

This Court reviews de novo the district court’s denial of a Rule 50 motion for judgment as a matter of law. EEOC v. AutoZone, Inc., 707 F.3d 824, 834-35 (7th Cir. 2013). This Court’s review involves “examin[ing] the evidence presented, combined with any reasonably drawn inferences, and determin[ing] whether that evidence sufficiently supports the verdict when viewed in the light most favorable to the non-moving party”—in this case, the EEOC. Id. at 835. In reviewing a decision denying a Rule 50 motion, this Court does “not make credibility determinations or weigh the evidence.” Id. Reversal of the verdict is warranted “only if no rational jury could have found for the prevailing party.” Id.

In employment discrimination cases, this Court is “particularly careful … to avoid supplanting [its] view of the credibility or weight of the evidence for that of both the jury (in its verdict) and in the judge (in not interfering with the verdict).” EEOC v. Mgmt. Hosp. of Racine, Inc., 666 F.3d 422, 432 (7th Cir. 2012) (quoting Emmel v. Coca-Cola Bottling Co. of Chi., 95 F.3d 627, 630 (7th Cir. 1996)). As this Court has explained, “employment discrimination cases often involve sensitive and difficult issues of fact, and plaintiffs often have only circumstantial evidence on which to rely.” Tart v. Ill. Power Co., 366 F.3d 461, 472 (7th Cir. 2004). Moreover, because “witness credibility is often crucial in discrimination suits[,] [this Court] appl[ies] a stringent standard in reviewing the jury’s verdict” that discrimination occurred. Emmel, 95 F.3d at 630.

II. The jury rationally could have determined that Costco subjected Suppo to a hostile work environment based on sex.

At trial, the jury found that the EEOC proved the elements of a hostile work environment claim: that “(1) [Suppo] was subject to unwelcome harassment; (2) based on [her sex]; (3) the harassment was severe or pervasive so as to alter the conditions of employment and create a hostile or abusive working environment; and (4) there [was] basis for [Costco’s] liability.” Alamo v. Bliss, 864 F.3d 541, 549 (7th Cir. 2017) (internal quotation marks omitted). The assessment of whether the harassment is sufficiently severe or pervasive to alter working conditions must be “made from both subjective and objective viewpoints.” Passananti v. Cook Cty., 689 F.3d 655, 668 (7th Cir. 2012).

On appeal, Costco argues that the evidence at trial did not establish the objective component of the third element: that Suppo experienced severe or pervasive harassment. Also, Costco attempts to cast doubt on whether Thompson’s harassment was based on Suppo’s sex. Costco concedes that the EEOC established that Thompson’s conduct was unwelcome, that she subjectively experienced it as severe or pervasive, and that there was a basis for Costco’s liability because Costco raises neither issue on appeal. As the EEOC explains, the trial evidence supports the jury’s determinations that Thompson’s harassment was (1) objectively hostile—that is, sufficiently severe or pervasive—and (2) based on Suppo’s sex. Therefore, this Court should affirm the district court’s denial of Costco’s Rule 50 motion.

A. A rational jury could have deemed Thompson’s harassment objectively hostile.

“In determining whether a workplace is objectively hostile, [this Court] consider[s] the totality of the circumstances, 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.’” Alamo, 864 F.3d at 549-50 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). All these considerations are relevant, but “no single factor is required.” Harris, 510 U.S. at 23. The proper standard is whether the “totality of the circumstances” meets the threshold of objective hostility—not, as Costco suggests, whether the circumstances of the present case are comparable to the facts of a selection of cherry-picked decisions. See, e.g., Costco Br. 14, 17; see also Hall v. City of Chi., 713 F.3d 325, 331 (7th Cir. 2013) (“Previous cases are not overly helpful in resolving this highly fact-specific inquiry.”).

Whether a hostile work environment is objectively hostile is assessed according to a reasonable person standard. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). But “the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering ‘all the circumstances.’” Id. (quoting Harris, 510 U.S. at 23). “The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.” Id. at 81-82.

In support of its claim that Thompson’s conduct did not create a hostile work environment, Costco describes Suppo as “hypersensitive,” suggesting that Suppo did not react to Thompson’s conduct as a reasonable person would have. Costco Br. 15. That is, Costco intimates that, although Suppo subjectively found Thompson’s harassment severe or pervasive, no reasonable person would have. This argument fails because it ignores the objective component and the jury’s finding that it was met here. As discussed, the objective inquiry focuses on whether a “reasonable person in the plaintiff’s position” would find the harassment actionable, necessarily filtering out cases where only a hypersensitive employee would deem conduct severe or pervasive. Oncale, 523 U.S. at 81 (emphasis added).

The district court properly instructed the jury on the objective standard, R.245 at 1200-01 / 14231-32 (Trial Tr. Vol. 7), and Costco does not challenge the instruction on appeal. Properly instructed, the jury concluded that a reasonable person in Suppo’s position would have found Thompson’s harassment severe or pervasive. Thus, although whether Suppo was an “eggshell plaintiff” might be relevant to damages (i.e., whether the harm she experienced from the harassment was exacerbated by her circumstances), it is not relevant to whether the jury rationally concluded that a reasonable person in Suppo’s position would have viewed Thompson’s harassment as objectively hostile.

Accordingly, based on the evidence presented at trial, the jury could have determined that Suppo’s work environment and her relationship with Thompson would have affected how a reasonable person viewed Thompson’s conduct. Given that context, the jury could have reasonably concluded that Thompson’s harassment would have seemed particularly severe to a person in Suppo’s position, the harassment was pervasive, and it altered Suppo’s working conditions.

1. The jury could have determined that Suppo’s working environment and her relationship to Thompson rendered his conduct especially hostile to a reasonable person in Suppo’s position.

As the Supreme Court has emphasized, the totality-of-the circumstances analysis “requires careful consideration of the social context in which particular behavior occurs and is experienced by its target.” Oncale, 523 U.S. at 81. Therefore, this Court has explained, “[t]he specific circumstances of the working environment and the relationship between the harassing party and the harassed” are relevant to assessing the totality of the circumstances. Alamo, 864 F.3d at 550. Here, the jury could have found, Suppo’s working environment and her relationship to Thompson augmented the hostility of Thompson’s harassment.

As to Suppo’s working environment, the size of the Glenview warehouse and the nature of her job duties are relevant in assessing the impact of Thompson’s conduct. See Rodgers v. W.-S. Life Ins. Co., 12 F.3d 668, 674 (7th Cir. 1993) (explaining that the “totality of the physical environment of the plaintiff’s work area” is pertinent when analyzing the context of an alleged hostile work environment). The Glenview warehouse is cavernous, spanning nearly 150,000 square feet. When Suppo was conducting go-backs, she circulated around the warehouse returning merchandise to the proper location. R.240 at 87-88, 214-16 / 13115-16, 13242-44 (Trial Tr. Vol. 2). Yet despite the size of the Glenview Costco, and the fact that Suppo “walked all over the warehouse,” Costco Br. 5, Thompson repeatedly sought her out, sometimes with “nothing in his [shopping] cart.” R.240 at 110 / 13138 (Trial Tr. Vol. 2). On some occasions, he even bumped her with his cart and his body. Id. at 109-10, 179-80 / 13137-38, 13207-08. A reasonable person in Suppo’s position could presume that her frequent encounters with Thompson—one of 50,000 members who shopped at the Glenview warehouse—did not happen by chance. Accordingly, the jury could have concluded that a reasonable person would find such targeted encounters especially menacing.

Moreover, two aspects of the relationship between Suppo and Thompson could have rendered Thompson’s conduct particularly serious to a reasonable person in Suppo’s position: Thompson was a stranger and he was a Costco member. To begin, Thompson was a stranger to Suppo when he first approached her. She did not know his name even when she complained to the police in August 2010. Id. at 117 / 13145. But the very first time Thompson approached Suppo he called her by name, he implied that he had been observing Suppo from afar, and he questioned Suppo about her personal life. Id. at 97-99 / 13125-27. The jury could have reasonably found that the conduct Suppo described—including posing intimate questions, monitoring her movements, encroaching on her personal space, and touching—would have seemed especially intimidating because Thompson was a stranger to Suppo. That is, the jury could have determined that Suppo’s “reasonable expectations … upon voluntarily entering [her work] environment” included freedom from a stranger’s unwanted attention. Rodgers, 12 F.3d at 674.

Second, Thompson was a Costco member, while Suppo was a Costco employee. The jury could have concluded that a reasonable person in Suppo’s position would have felt compelled to tolerate Thompson’s conduct, to avoid rebuffing a customer. This is particularly true given the evidence about Costco management’s handling of Suppo’s complaints. As Suppo testified, West yelled at her for notifying the police about Thompson’s stalking and told her to be friendly to her harasser. R.240 at 118-20 / 13146-48 (Trial Tr. Vol. 2). Currier testified that he apologized to Thompson several times after the July or August 2010 meeting. R.241 at 463-64 / 13492-93 (Trial Tr. Vol. 3).

Moreover, Thompson’s harassment continued—and escalated—after the July or August 2010 meeting although, as Thompson testified, Costco management directed him not to approach Suppo, and despite Suppo’s repeated complaints to Currier. R.240 at 116-17, 119-20 / 13144-45, 13147-48 (Trial Tr. Vol. 2); R.241 at 414 / 13343 (Trial Tr. Vol. 3). And, even though Costco could have stopped Thompson’s harassment by barring him from the Glenview warehouse or revoking his membership, the company did not take those steps, suggesting that Thompson shop at a different store only after Suppo obtained a stalking no-contact order, and revoking Thompson’s membership only after the Mettawa incident. R.240 at 273 / 13301 (Trial Tr. Vol. 2); R.244 at 1022-23 / 14053-54 (Trial Tr. Vol. 6).

Therefore, on the trial record, the jury could have determined that Suppo reasonably perceived, based on the conduct of Thompson and Costco management, that she was expected to tolerate Thompson’s harassment because he was a Costco member. Under these circumstances, the jury could have found that Thompson’s continued harassment would have significantly interfered with the work of a reasonable person in Suppo’s position. That is, the jury could have inferred that Suppo’s only recourse, given Costco management’s failure to address Thompson’s harassment, was to remain vigilant as she conducted go-backs and avoid Thompson to the extent possible. Also, the jury also could have concluded that Thompson’s continued harassment would have seemed even more menacing to Suppo because he persisted after management directed him not to approach Suppo, and after he learned that she had reported his conduct to the police.

2. The jury could have concluded that Thompson’s harassment was severe.

The jury could have deemed Thompson’s harassment severe for several reasons. Thompson’s harassment was directed at Suppo. It included unwelcome physical contact. The evidence supported the inference that Thompson harbored an infatuation with Suppo based on sexual interest. And Thompson’s conduct culminated in stalking, which led Suppo to obtain a stalking no-contact order.

Harassment occurs along a “continuum,” Hostetler v. Quality Dining, Inc., 218 F.3d 798, 808 (7th Cir. 2000), and there is an is an “inverse[e] relation[ship]” between severity and pervasiveness. Alamo, 864 F.3d at 550. That is, because “one extremely serious act of harassment could rise to an actionable level as could a series of less severe acts,” Hall, 713 F.3d at 330, the severity threshold is less onerous as the pervasiveness of the conduct increases, and vice versa. Costco appears to argue that severity is an either-or proposition, implying that conduct is either severe or not, but this is incorrect. Costco Br. 23 (stating that “none of Thompson’s actions can fairly be described as ‘severe’”).[5] In this case, the jury could have concluded that the pattern of Thompson’s harassment as a whole was sufficiently severe to render it objectively hostile.

First, there is no question that Thompson’s actions directly targeted Suppo. Again, among other things, he followed her around the store, commented on her appearance, asked her for dates, asked her intimate questions, and engaged in unwanted physical contact. See, e.g., R.240 at 177-85, 188-92 / 13206-13, 13216-19 (Trial Tr. Vol. 2); see also Hall, 713 F.3d at 329 (holding that jury could find a hostile work environment where allegations included, among other things, that supervisor “directed anger towards [plaintiff]” by attempting to bump her and “directed” “animus” at plaintiff). By contrast, some of the decisions on which Costco relies involve conduct that was not directed towards the plaintiff, or not even observed by the plaintiff. For example, in Gleason v. Mesirow Financial, Inc., 118 F.3d 1134 (7th Cir. 1997), the panel noted “that many of the alleged incidents of harassment cited by [the plaintiff] did not involve [her] personally, but rather female customers, [the plaintiff’s] female relatives when they visited or called the office, or other female employees.” Id. at 1144. In Whittaker v. Northern Illinois University, 424 F.3d 640 (7th Cir. 2005), the panel found that, although “there [was] evidence that [the plaintiff’s] supervisors referred to her in explicit, derogatory, and sexist terms[,] ... these references were made outside her presence, and there [was] no evidence that she was aware of [the] remarks during her tenure.” Id. at 645. Here, there is no question that Thompson’s harassment targeted Suppo, and that she was aware of his behavior.

Second, Thompson’s harassment of Suppo included several incidents of physical contact, to which Suppo did not consent. Thompson touched Suppo’s face and arm on two separate occasions. R.240 at 107-08, 175-78 / 13135-36, 13203-06 (Trial Tr. Vol. 2). He tried to hug her twice. Id. at 178-79 / 13206-07. Four times, he brushed against Suppo or bumped her cart in the aisles of the warehouse. Id. at 109-10, 179-80 / 13137-38, 13207-08. Harassment that “involves touching as opposed to verbal behavior increases the severity of the situation.” Worth v. Tyer, 276 F.3d 249, 268 (7th Cir. 2001). As this Court has emphasized, “physical contact, whether amorous or hostile, for which there is no consent express or implied,” is distinguishable—and more serious—than merely “boorish” behavior. Mgmt. Hosp. of Racine, 666 F.3d at 432 (quoting Baskerville v. Culligan Int’l Co., 50 F.3d 428, 430 (7th Cir. 1995)).

Costco downplays Thompson’s unwanted touching of Suppo because, Costco claims, the incidents were not sexual in nature or otherwise inappropriate. Costco Br. 14, 20, 23. But sex-based harassment need not be overtly sexual to be actionable. See infra at 44-45. Moreover, as discussed infra at 33-34, the trial evidence supports an inference that Thompson acted out of infatuation with Suppo, based on sexual interest. See Mgmt. Hosp. of Racine, 666 F.3d at 432 (emphasizing serious nature of “amorous” “physical contact … for which there is no consent”). Also, given Suppo’s efforts to rebuff his advances, the jury could have concluded that Thompson’s attempts to hug Suppo crossed a line. That is, the jury could have deemed Thompson’s “continued contact after [Suppo’s] objection[s]” an “aggravating circumstance[].” Patton v. Keystone RV Co., 455 F.3d 812, 816 (7th Cir. 2006).

Additionally, because Thompson was a customer, and a stranger to Suppo, the jury could have distinguished his conduct from “the sort of casual [physical] contact which ... might be expected between friendly co-workers.” Hostetler, 218 F.3d at 808. Therefore, the jury could have concluded that even “casual [physical] contact” with a stranger or customer “is not conduct that would be anticipated in the workplace.” Id. at 807-08. Costco suggests that Thompson’s habit of bumping against Suppo and her cart had little impact, Costco Br. 23, but a reasonable person in Suppo’s position could have viewed Thompson’s conduct as intentional, aggressive, and menacing. See Hall, 713 F.3d at 329 (holding that jury could find a hostile work environment where allegations included, among other things, that supervisor “directed anger towards [plaintiff]” by attempting, on “several occasions” to “‘bump’ [plaintiff] in the hall, [and] succeeding one time”).

Even if the jury deemed Thompson’s physical contact “relatively minor,” the jury could have concluded that, “[c]umulatively or in conjunction with other harassment, [Thompson’s physical contact] … bec[a]me sufficiently pervasive to support a hostile work environment claim.” Hostetler, 218 F.3d at 808; see also Hall, 713 F.3d at 331 (jury could find a hostile work environment where allegations included “one minor physical altercation” and other incidents); Hertzberg, 261 F.3d at 654-55, 664 (affirming punitive damages for hostile work environment where allegations consisted of a single incident in which a supervisor touched plaintiff’s knee, the supervisor’s comment that plaintiff was “emotional, just like a woman,” and a co-worker’s “constant” comments denigrating plaintiff’s qualifications and women’s abilities). And although Costco suggests that Thompson’s conduct was less severe than the conduct described in prior decisions where this Court declined to recognize a hostile work environment, Costco Br. 18-21, some of the decisions Costco cited did not involve any allegations of physical contact. See Gleason, 118 F.3d at 1145 (noting that the alleged harasser “never touched the plaintiff”); Baskerville, 50 F.3d at 431 (same); see also Mendoza v. Borden, Inc., 195 F.3d 1238, 1243 (11th Cir. 1999) (en banc) (alleged hostile work environment included a single allegation of physical contact in which supervisor allegedly rubbed his hip against plaintiff’s hip); cf. Passananti, 689 F.3d at 663-65 (jury could find a hostile work environment in suit where plaintiff did not allege physical contact).

Third, the jury could have determined that Thompson was infatuated with Suppo, and that his fascination with her was more than run-of-the-mill platonic or romantic interest. Costco states that Thompson’s behavior was not “sexual” in an effort to minimize his obsessive behavior towards Suppo, see, e.g., Costco Br. 14, but the jury reasonably could have found otherwise. For example, Thompson asked Suppo for dates six times and attempted to foist his contact information on her, making repeated advances although she rebuffed him. R.240 at 171-75 / 13199-03 (Trial Tr. Vol. 2). Although he was a stranger to Suppo, he told her she was “very beautiful” and “exotic-looking,” he asked her age “over and over,” and he wanted to know her nationality and where she was from. R.240 at 103-04, 110 / 13131-32, 13138 (Trial Tr. Vol. 2); R. 241 at 354 / 13383 (Trial Tr. Vol. 3). Also, because Thompson attempted to embrace Suppo, and touched her arm and face, R.240 at 107-08, 175-79 / 13135-36, 13203-07 (Trial Tr. Vol. 2), his conduct includes some of the very facts this Court found missing in Baskerville, where the alleged harasser “never touched the plaintiff” and never asked her “to go out on a date with him.” 50 F.3d at 431; cf. Mendoza, 195 F.3d at 1248 (majority rejected plaintiff’s characterization of statement “I’m getting fired up” as sexual in a suit where the alleged harasser never asked plaintiff for dates).[6]

Moreover, Thompson watched Suppo from afar, even videotaping her on his phone. R. 240 at 126-28, 188-92 / 13154-56, 13215-19 (Trial Tr. Vol. 2); see Mendoza, 195 F.3d at 1248 (“‘[F]ollowing and staring’ can betray romantic or sexual attraction[.]”). He told Currier that he wanted to “fix” Suppo and called her “mysterious Dawn.” R.240 at 128 / 13156 (Trial Tr. Vol. 2); R.241 at 452-53 / 13481-82 (Trial Tr. Vol. 3). He broached intimate topics with Suppo, including her dating history and relationships with men. R.240 at 180-85 / 13208-13 (Trial Tr. Vol. 2). Costco seeks to downplay Thompson’s personal questions, see, e.g., Costco Br. 21, but Suppo viewed them as attempts to gather information about her, and she sometimes perceived a sexual motive in Thompson’s questions. R.240 at 184-85 / 13212-13 (Trial Tr. Vol. 2).

Even if the jury did not infer sexual interest, the jury could have concluded that Suppo would have reasonably found Thompson’s infatuation intimidating and menacing. See infra at 44-45 (explaining that a hostile work environment need not be based on sexual desire). For example, Thompson recalled that Suppo unevenly applied makeup on one side of her face, indicating that he was observing her closely. R.241 at 355-57 / 13384-86 (Trial Tr. Vol. 3). The jury could have concluded, based on evidence suggesting that Thompson visited the Glenview warehouse without making purchases, see supra at 17-19, that Thompson came to the warehouse with the purpose of seeking out Suppo. And, based on Suppo’s testimony that Thompson’s face grew red when she declined to speak with him, the jury could have determined that Thompson became incensed because he felt Suppo had spurned his overtures. R. 240 at 126-27 / 13154-55 (Trial Tr. Vol. 2).

Fourth, Thompson’s conduct towards Suppo amounted to stalking, which “is a serious crime” under Illinois law. 740 Ill. Comp. Stat. 21/5 (2010). Suppo ultimately obtained a stalking no-contact order against Thompson. “[Stalking] [v]ictims experience fear for their safety ... and suffer emotional distress. Many victims alter their daily routines to avoid the persons who are stalking them.” Id.

Stalking can create an actionable hostile work environment under Title VII. See Frazier v. Delco Elecs. Corp., 263 F.3d 663, 668 (7th Cir. 2001) (reasonable jury could find that harasser’s stalking constituted a hostile work environment); Minor v. Ivy Tech. State Coll., 174 F.3d 855, 858 (7th Cir. 1999) (“Of course stalking a female employee crosses the line.”); Crowley v. L.L. Bean, Inc., 303 F.3d 387, 392 (1st Cir. 2002) (finding a hostile work environment where co-worker stalked plaintiff by engaging “in disturbing and sometimes peculiar behavior around [plaintiff]”). Here, Thompson stalked Suppo by, among other things, monitoring her movements, watching her from afar, repeatedly asking her for dates, touching her, and videotaping her. 740 Ill. Comp. Stat. 21/10 (2010) (stalking behavior includes following, monitoring, and observing the victim). Suppo caught Thompson watching her three times, and the jury could have inferred that he monitored her on other occasions, because he asked questions about men she was speaking with, and because he often ran into her in the massive warehouse.

By “mak[ing] [his] presence known to [Suppo]” in this manner, Thompson could have induced fear in a reasonable person. Frazier, 263 F.3d at 668) (explaining that a Wisconsin statute, Wis. Stat. Ann. § 940.32 (2000), “defines stalking as inducing fear of bodily injury in a person by repeatedly maintaining visual or physical proximity to her”). And indeed, Thompson asked Suppo “a few times” whether she was scared of him, and Suppo was sufficiently frightened to ask her father to pick her up from work. R.240 at 140 / 13168 (Trial Tr. Vol. 2). Thus, the jury could have concluded that Thompson’s harassment was severe because he stalked Suppo, and also because, as described, his conduct was directed at Suppo, stemmed from infatuation, and involved physical contact.

3. The jury could have found that Thompson’s harassment was pervasive.

As this Court has emphasized, “There is no magic number of incidents required to establish a hostile environment.” Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 789 (7th Cir. 2007). Although, as described above, the jury could have deemed Thompson’s conduct severe, even “incidents, which viewed in isolation seem relatively minor, that consistently or systematically burden women throughout their employment are sufficiently pervasive to make out a hostile work environment claim.” Hall, 713 F.3d at 332; see also Haugerud v. Amery Sch. Dist., 259 F.3d 678, 693-94 (7th Cir. 2001) (summarizing “incidents” that were not “particularly severe” but were “sufficiently pervasive, and [which] seem to have unreasonably interfered with [the plaintiff’s] ability to do her job”).

Here, Suppo testified to frequent encounters with Thompson from the very beginning of her permanent employment with Costco (in late May 2010) until she began medical leave (in early September 2011). Thompson asked Suppo out six times, watched her from afar, touched her face and her arm, attempted to hug her twice, and bumped her four times. R.240 at 107-10, 171, 175-80, 188-92 / 13135-38, 13199, 13203-08, 1316-19 (Trial Tr. Vol. 2). Moreover, he often approached Suppo, trying to give Suppo his phone number “constantly” and attempting to thrust his business card into her hand. Id. at 172-75 / 13200-03. He asked Suppo’s age “over and over” and “constantly” inquired where she was from. Id. at 103-05 / 13131-33; see also Costco Br. 7 (acknowledging that “Suppo testified that ... Thompson ‘constantly’ asked her what she considered to be personal questions”).

Suppo’s testimony was corroborated by the testimony of Hernandez and Currier, who recalled that Suppo reported multiple encounters with Thompson before August 2010. R.241 at 449-50, 550 / 13478-79, 13759 (Trial Tr. Vol. 3). And her account was corroborated by Thompson, who admitted that he began approaching Suppo again after he was told to avoid her. Id. at 415, 421 / 13444, 13450. Therefore, based on the trial record as a whole, a jury could conclude that Suppo was subject to pervasive harassment. See Boumehdi, 489 F.3d at 789 (a jury could find a hostile work environment based on evidence “that [the alleged harasser] made at least eighteen sexist or sexual comments in less than a year’s time and that similar comments were made ‘very often’”); Haugerud, 259 F.3d at 693-94 (a jury could find a hostile work environment based on twelve primary factual allegations including directing male custodians not to help female custodians, denying or delaying assistance to plaintiff, requiring plaintiff to perform maintenance tasks, and failing to address derogatory comments about female custodians).

Moreover, the jury could have also determined that Thompson’s persistence rendered his conduct pervasive. Suppo consistently attempted to repulse Thompson’s attention—for example, she told him she would not answer personal questions and refused repeated offers for dates—yet he continued to approach her and make advances. See R.240 at 104, 171 / 13132, 13199 (Trial Tr. Vol. 2). According to Thompson, Costco management advised him to avoid Suppo (or “minimalize contact,” in Currier’s words), but he ignored that directive. R.241 at 414, 451 / 13443, 13480 (Trial Tr. Vol. 3). Even Suppo’s August 2010 report to the police did not deter Thompson. That Thompson persisted in harassing Suppo even after Costco told him to avoid Suppo, and even after Suppo reported him to the police, adds an element that does not appear to be present in some of the cases on which Costco relies. See, e.g., Hostetler, 218 F.3d at 810 (concluding that there was “no proof that … any other harassment, postdated [plaintiff’s] complaint to [the store manager],” although record was not entirely clear on timing of one incident); Weiss v. Coca-Cola Bottling Co. of Chi., 990 F.2d 333, 334-35 (7th Cir. 1993) (plaintiff threatened to report conduct to higher-ups, but no indication in opinion that she did so before filing an administrative charge). Moreover, because he was a stranger to Suppo, Thompson’s persistence—and resistance to deterrence efforts—could have seemed particularly unsettling to a reasonable person in Suppo’s position.

Contrary to Costco’s assertion otherwise, see, e.g., Costco Br. 24, the jury was entitled to accept Suppo’s testimony that Thompson frequently approached her. Costco characterizes Suppo’s testimony as “vague,” faulting Suppo because she did not recall the precise dates when she encountered Thompson. Costco Br. 8, 24. But the jury could have rationally believed Suppo’s version of events even though Suppo was not able to pinpoint a timeframe for every allegation. See Mgmt. Hosp. of Racine, 666 F.3d at 433 (jury was entitled to accept harassment victim’s “version of events” “although [she] could not remember the exact dates that specific instances of sexual harassment occurred”); Dey v. Colt Const. & Dev. Co., 28 F.3d 1446, 1456-57 (7th Cir. 1994) (although plaintiff was “unable to remember precisely what [the alleged harasser] may have said or done on [certain] occasions,” her recollections “may suggest a pattern of conduct which support[ed] [her] charge that [the alleged harasser] was consistently boorish”).

Moreover, the jury could have rejected Costco’s contention that Suppo encountered Thompson infrequently. Costco claims that Suppo and Thompson were in the Glenview warehouse at the same time “about 20 times, at most,” and contends that “months went by without any contact” between Suppo and Thompson. Costco Br. 7, 26. In making these assertions, Costco mischaracterizes the information contained in Thompson’s member record and exaggerates its significance. See Costco Br. 24-25. Moreover, the jury could have believed Suppo’s account that she encountered Thompson “constantly” and surmised, based on the trial evidence as a whole, that Thompson’s visited the Glenview warehouse far more frequently than Costco claims—particularly when Suppo was working.

First, although Costco characterizes Thompson’s member record as logging his “shopping trips to Costco,” see Costco Br. 7, it actually provides a history of Thompson’s purchases. As West testified, Thompson’s member record marks the time and date of his purchases, not his visits to the Glenview warehouse. R.243 at 771-72 / 13802-03 (Trial Tr. Vol. 5). Significantly, West admitted that Costco does not track when members enter or exit a warehouse. Id. at 775-76 / 13806-07. Therefore, the jury could have inferred that a member record would not capture situations where a member visited the warehouse without making a purchase, arrived at the warehouse well before making a purchase, or left the warehouse long after making a purchase.

Additionally, the trial record permits the inference that Thompson visited the Glenview warehouse on dates not reflected in his member record. For example, Suppo testified that, when she encountered Thompson, she sometimes noticed that there was “nothing in his [shopping] cart,” R.240 at 110 / 13138 (Trial Tr. Vol. 2), which supports an inference that Thompson wandered around the warehouse without making purchases. Also, Suppo’s testimony and other trial evidence support the conclusion that Thompson was present in the warehouse on dates when his member record did not mark a purchase. See supra at 17-19. Therefore, the jury was entitled to infer that Thompson regularly visited the Glenview warehouse without making a purchase, and with the purpose of seeking out Suppo. Such an inference is plausible given Thompson’s obvious infatuation with Suppo and his stalking behavior.

4. The jury could have concluded that Thompson’s harassment altered Suppo’s working conditions.

The trial record supports a finding that Thompson’s harassment “unreasonably interfere[d] with [Suppo’s] work performance,” Harris, 510 U.S. at 23, because it “discriminatorily altered” her “working conditions.” Dey, 28 F.3d at 1455 (quoting Harris, 510 U.S. at 25 (Scalia, J., concurring)). As noted supra at 27-28, the jury could have inferred that, given Costco’s failure to address Thompson’s harassment, Suppo would have reasonably concluded that her only recourse was to remain vigilant and avoid Thompson as she conducted go-backs. See 740 Ill. Comp. Stat. 21/5 (2010) (explaining that “[m]any [stalking] victims alter their daily routines to avoid the persons who are stalking them”). Costco’s lack of action meant that Suppo felt compelled to report Thompson’s conduct to the police and obtain a stalking no-contact order. R.240 at 116-17, 134-35 / 13144-45, 13162-63 (Trial Tr. Vol. 2). Suppo was also forced to devote time complaining to Currier because Thompson continued to harass her. Id. at 116-17, 119-20 / 13144-45, 13147-48. Additionally, Suppo expressed that she felt “scared” in her workplace, as both Thompson and Currier acknowledged. Id. at 140 / 13168; R.241 at 345, 449-50 / 13374, 13478-79 (Trial Tr. Vol. 3). Due to her fear of Thompson, Suppo requested a closer parking spot and had her father pick her up after work. R.240 at 140 / 13168 (Trial Tr. Vol. 2). In summary, Thompson’s harassment, and Costco’s inaction, altered Suppo’s working conditions in several respects.

Finally, Suppo experienced significant emotional distress after Thompson videotaped her on the warehouse floor. After that incident, she was unable to work for over three years; therefore, it had a significant effect on her work performance. The videotaping incident was the culmination of fourteen months of harassment by Thompson, and the jury could have concluded that Suppo understandably reached a breaking point. Dey, 28 F.3d at 1456 (explaining that plaintiff’s reaction to an incident of harassment was “unsurprising” because the incident “would no doubt be even more frightening to a reasonable woman in [the plaintiff’s] position who ... had [already] endured more than two years of verbal harassment”). Costco asserts that Suppo’s reaction to the videotaping incident was unreasonable, Costco Br. 27, but, as discussed, the jury could have deemed Suppo’s distress fully justified.

Costco also argues that Thompson’s harassment did not unreasonably interfere with Suppo’s work performance because Suppo’s performance did not suffer. Costco Br. 27. But, again, as this Court emphasized in Dey, “the test under Title VII ‘is not whether work has been impaired, but whether working conditions have been discriminatorily altered.’” 28 F.3d at 1454-55 (quoting Harris, 510 U.S. at 25 (Scalia, J., concurring)). Harris’s reference to “unreasonable interference with work performance was not intended to penalize the employee who possesses the dedication and fortitude to complete her assigned tasks” while enduring harassment. Dey, 28 F.3d at 1454; see also Tuli v. Brigham & Women’s Hosp., 656 F.3d 33, 40 (1st Cir. 2011) (explaining, in affirming jury verdict for employee, that an employee’s ability “to get her work done despite the harassment does not prevent a jury from finding liability”); Okoli v. City of Balt., 648 F.3d 216, 222 (4th Cir. 2011) (“[T]he fact that a plaintiff continued to work under difficult conditions is to her credit, not the harasser’s.”). As explained, Thompson’s harassment altered Suppo’s working conditions in several respects. Therefore, that Suppo’s performance remained strong, and that she loved her work at Costco, would not have prevented the jury from determining that Thompson’s conduct affected her.

B. The jury could have rationally concluded that Thompson’s harassment was based on sex.

Costco suggests—but does not squarely argue—that the trial evidence could not support the jury’s finding that Thompson’s harassment was based on sex. See, e.g., Costco Br. 14. That is, Costco implies that Thompson’s conduct did not constitute an actionable hostile work environment because it was not sexual. Even if this Court considers that argument, Costco is wrong, because the jury could have deemed Thompson’s conduct towards Suppo sexual in nature, and Title VII does not mandate that harassment must be sexual in order to be “based on sex.”

As explained supra at 33-34, the jury could have inferred that Thompson’s conduct stemmed from sexual interest—or at a minimum, romantic interest that amounted to an infatuation. Again, Thompson made advances towards Suppo (despite her attempts to rebuff him), watched Suppo from afar, engaged in unwanted physical conduct, and stalked Suppo. See supra at 29-36. Also, Suppo viewed some of Thompson’s conduct as sexual in nature, and the jury could have credited her perception of his conduct. R.240 at 184-85 / 13212-13 (Trial Tr. Vol. 2). That is, even if Thompson’s behavior was not overtly sexual, the jury could have deemed Thompson’s conduct towards Suppo “implicit proposals of sexual activity,” which may establish that harassment was based on sex. Oncale, 523 U.S. at 80.

Moreover, even if the jury did not infer that Thompson acted from sexual interest, this Court “does not limit hostile environment claims to situations in which the harassment is based on sexual desire.” Boumehdi, 489 F.3d at 788 (rejecting employer’s arguments that conduct was “not sufficiently severe or pervasive to be objectively offensive because” it was not “of a sexual nature”); see also Oncale, 523 U.S. at 80 (explaining that “harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex”). Therefore, this Court has recognized that hostile environment claims may arise from non-sexual conduct that is based on the plaintiff’s sex. See, e.g., Hall, 731 F.3d at 332-35 (jury could hold that alleged harasser’s conduct—isolation of plaintiff and aggressive comments—stemmed from sex-based animus); Hertzberg, 261 F.3d at 654-55, 664 (affirming punitive damages for hostile work environment where plaintiff alleged that a supervisor described her as “emotional, just like a woman” and a co-worker made “constant” comments denigrating plaintiff’s qualifications and women’s abilities, in addition to an incident where the supervisor touched plaintiff’s knee).

Even if the jury did not infer that Thompson acted from sexual interest, the jury could have concluded that Thompson’s conduct was based on Suppo’s sex. The jury heard evidence that Thompson, among other things, commented on Suppo’s body, made advances on Suppo, and subjected her to unwanted physical contact. R.240 at 102-08, 171, 177-79 / 13130-36, 13199, 13205-07 (Trial Tr. Vol. 2). There was nothing in the record establishing that Thompson treated male employees as he treated Suppo. Moreover, the jury could have concluded that Thompson’s stalking of Suppo was based on sex. See Frazier, 263 F.3d at 667 (describing stalking as a “characteristic form[] of male aggression against women”); cf. Passananti, 689 F.3d at 665 (jury could determine that alleged harasser “used the word ‘bitch’ as a gender-specific term and that its impact was to degrade women in general and [plaintiff] in particular”). In summary, the district court correctly declined to grant Costco’s motion for judgment as a matter of law because the jury could have reasonably determined that the evidence showed that Thompson subjected Suppo to a hostile work environment based on sex.

ARGUMENT AS CROSS-APPELLANT (No. 17-2454)

I. Standard of review

“Whether lost pay is available as a remedy for a statutory violation is a question of law that [this Court] reviews de novo.” Hertzberg, 261 F.3d at 657. De novo review applies here because the district court determined, as a matter of law, that the EEOC was not entitled to obtain backpay on behalf of Suppo.

II. This Court should hold that the EEOC may seek backpay.

This Court should determine that the district court erred in concluding that the EEOC could not seek backpay on Suppo’s behalf. As this Court recognized in Townsend, backpay is available under Title VII where an employer’s discriminatory conduct renders the employee unable to work. That principle applies here, where Thompson’s harassment of Suppo caused significant emotional distress, which caused Suppo to take a medical leave of absence, which in turn caused Suppo to lose wages. Awarding backpay to Suppo promotes Title VII’s objective of making discrimination victims whole. Moreover, contrary to the district court’s conclusion, Townsend remains good law, and this Court’s decision in Hertzberg is inapposite.

A. As in Townsend, this Court should hold that the EEOC may obtain backpay on behalf of Suppo to recover for wages she lost due to emotional distress caused by Costco’s unlawful employment action.

1. Townsend authorizes backpay on the evidence presented at trial.

In Townsend, this Court recognized that an employment discrimination plaintiff may obtain backpay when rendered unable to work due to the employer’s unlawful employment action. There, a university employee experienced “acute psychological distress” after her supervisor sexually assaulted her and the university failed to address her complaints. 995 F.2d at 692. The employee took an unpaid leave of absence due to her psychological distress, but she remained employed at the university during her leave. Id. “A psychologist … diagnosed her with having post-traumatic stress disorder induced by the sexual assaults.” Id. The plaintiff brought a Title VII claim alleging hostile work environment, and the district court concluded that the plaintiff could not obtain backpay because she was not terminated or demoted. Id.

This Court reversed, emphasizing that “[Title VII] does not key the plaintiff’s rights to termination, but to discrimination, of which sexual harassment has been held to be a form. The only question is whether the discrimination inflicted the kind of harm for which Title VII offers redress.” Id. at 693. Therefore, the court held that the employee could recover backpay if she could establish a causal link between her lost wages and the sexual harassment she experienced. Id. (“[I]f the assaults caused severe psychological distress that in turn caused her to lose work and as a result wages, she is entitled to recover those wages[.]”). Townsend rejected the idea that “involuntary termination, whether in the form of outright discharge or of constructive discharge … is a sine qua non to prevailing under Title VII.” Id. The panel distinguished cases cited by the employer stating damages are unavailable unless the employee was terminated, explaining that those cases did not involve damages for “having been forced to take unpaid leave.” Id.

This case is analogous to Townsend, and the EEOC should be permitted to obtain backpay on Suppo’s behalf for the same reasons. Just as in Townsend, Costco’s unlawful employment practice “caused severe psychological distress that in turn caused [Suppo] to lose work and as a result wages,” and EEOC is therefore “entitled to recover those wages[.]”

At trial, the EEOC established that Suppo took unpaid medical leave because Costco subjected her to an unlawful employment practice, and that Suppo lost wages as a result. In particular, Suppo’s treating psychiatrist testified that Suppo sought treatment after Thompson harassed her, and that Suppo’s distress over Thompson’s harassment and Costco’s failure to respond rendered her unable to work. R.243 at 831, 849-51 / 13862, 13880-82 (Trial Tr. Vol. 5). Suppo also testified that she was unable to work for several years after going on medical leave. R.240 at 138-39 / 13166-67 (Trial Tr. Vol. 2). The jury awarded Suppo compensatory damages for emotional distress and medical expenses, which indicates that the jury viewed Suppo’s distress as resulting from Costco’s failure to prevent the harassment. R.235 (Jury Verdict); R.247 at 1226-27 / 14263-64 (Trial Tr. Vol. 8). Therefore, as in Townsend, the EEOC should be permitted to seek backpay for Suppo.

2. Allowing backpay to employees in Suppo’s circumstances furthers the goals of Title VII and is consistent with decisions excusing mitigation for employees rendered disabled by an employer’s Title VII violation.

Authorizing backpay to employees in Suppo’s position is not only consistent with Townsend; it also furthers the goals of Title VII. “[O]ne of the central purposes of Title VII is ‘to make persons whole for injuries suffered on account of unlawful employment discrimination.’” Franks v. Bowman Transp. Co., 424 U.S. 747, 763 (1976) (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975)). Therefore, “backpay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.” Albemarle Paper, 422 U.S. at 421; see also Miles v. Indiana, 387 F.3d 591, 599 (7th Cir. 2004) (explaining that this Court “shall approve the denial of equitable relief only if that denial does not frustrate Title VII’s objective of making the [victim of discrimination] whole”). Accordingly, this Court recognizes a “strong presumption that [the victim] [is] entitled to a back pay award on the basis of what she would have earned absent the discrimination” “[o]nce the district court [finds] unlawful discrimination in violation of Title VII.” EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569, 1579 (7th Cir. 1997).

Townsend’s approach, and its application here, furthers Title VII’s objective of making the victim of discrimination whole. Townsend recognized that, under certain circumstances, an employee may lose wages due to unlawful discrimination even if she does not separate from her employer. In particular, where unlawful discrimination “cause[s] severe psychological distress that in turn cause[s] [an employee] to lose work and as a result wages,” the employee “is entitled to recover those wages” as backpay. 995 F.2d at 693. That is, an employee who lost wages due to psychological distress caused by her employer is “entitled to a back pay award on the basis of what she would have earned absent the discrimination.” Ilona of Hungary, 108 F.3d at 1579. Here, the EEOC presented evidence establishing that Costco’s unlawful employment action caused Suppo to take medical leave. Therefore, the district court’s denial of backpay “frustrate[d] Title VII’s objective of making [Suppo] whole.” Miles, 387 F.3d at 599.

Moreover, permitting the EEOC to recover backpay on Suppo’s behalf is consistent with the logic that an employee may obtain backpay where the employer’s discriminatory actions rendered the employee unable to work. Terminated employees who fail to mitigate by obtaining substitute employment typically forfeit backpay. Nevertheless, courts have held that “an employee who cannot mitigate damages because he is unable to work as a result of the unlawful actions of the employer can still receive back pay.” Johnson v. Spencer Press of Me., Inc., 364 F.3d 368, 384 (1st Cir. 2004); see also Lathem v. Dep’t of Children & Youth Servs., 172 F.3d 786, 794 (11th Cir. 1999) (“[A] Title VII claimant is entitled to an award of back pay where the defendant’s discriminatory conduct caused the disability.”); Durham Life Ins. Co. v. Evans, 166 F.3d 139, 157 (3d Cir. 1999) (“Because [the employer’s] conduct affirmatively impaired [the employee’s] ability to mitigate her damages, it would be inequitable to reduce her back pay award in this case.”).

That principle stems from the idea that an employee is entitled to backpay where “[the employer’s] conduct caused [the employee’s] disability and [the resulting] disability preclude[s] [the employee] from obtaining other employment.” Lathem, 172 F.3d at 794. Townsend is based on similar reasoning: that an employee is entitled to recover backpay where her employer’s unlawful employment action “caused severe psychological distress that in turn caused her to lose work and as a result wages.” Townsend, 995 F.2d at 693. Similarly, authorizing backpay for Suppo similarly situated employees would permit recovery for individuals who lose wages because an employer engages in unlawful activity under Title VII.

B. The district court’s rationales for dismissing Townsend do not withstand scrutiny.

1. Hertzberg is inapposite.

The district court concluded that this Court’s decision in Hertzberg controlled, rather than Townsend. R.273 at 12-13 / 14625-26 (SA.19-20; ECF No.14-2) (Post Trial Op.). But the district court’s reliance on Hertzberg was misplaced. It is true that Hertzberg stated that “[a] victim of discrimination that leaves his or her employment as a result of … discrimination must show either an actual or constructive discharge in order to receive the equitable remedy of reinstatement, or back and front pay in lieu of reinstatement.” 261 F.3d at 659. However, Hertzberg’s general statement about the availability of equitable relief is irrelevant here. Hertzberg did not confront a scenario where an employee sought backpay for wages lost during unpaid leave. And, unlike the employee in Hertzberg, the EEOC can establish a causal link between Costco’s Title VII violation and Suppo’s lost wages.

In Hertzberg, the employee won a jury verdict on her sexual harassment claim, but the jury rejected the employee’s retaliatory discharge claim. Id. at 656. The employee did not allege discriminatory discharge or constructive discharge, and she did not take unpaid medical leave. Id. The district court awarded backpay because “[i]t found there was a ‘but for’ relationship between [the employee’s] departure and the sexual harassment” she experienced. Id. at 657. A panel of this Court reversed, dismissing the idea that a “but for” connection between harassment and separation from an employer is enough, on its own, to justify backpay. Id. at 659. That is, because the employee failed to allege constructive or discriminatory discharge, she could not show a clear causal link between the unlawful employment action and her lost wages.

In contrast to Hertzberg, in this case (as in Townsend), there is a clear connection between Costco’s unlawful employment action and Suppo’s lost wages. As explained supra at 47-48 the EEOC presented evidence establishing that the hostile work environment caused Suppo to take unpaid medical leave, directly resulting in lost wages. See Townsend, 995 F.2d at 693. Therefore, Townsend, not Hertzberg, controls.

2. Hertzberg did not overrule Townsend.

Townsend remains good law, contrary to the district court’s conclusion otherwise. The district court erred in suggesting that Hertzberg controlled because it post-dated Townsend. See R.273 at 113 / 14626 (SA.20; ECF No.14-2) (Post Trial Op.). To be sure, Hertzberg did not discuss Townsend. But, although it was decided before Hertzberg, Townsend effectively addressed Hertzberg’s reasoning by distinguishing prior decisions linking backpay to constructive or actual discharge. Townsend, 995 F.2d at 693 (discussing Brooms v. Regal Tube Co., 881 F.2d 412, 423 (7th Cir. 1989); Gray v. Cty. of Dane, 854 F.2d 179, 181 n.3 (7th Cir. 1988); Bohen v. City of E. Chi., 799 F.2d 1180, 1184 (7th Cir. 1986)).

As Townsend explained, those cases were inapposite because they involved “plaintiff[s] ... claiming damages as a result of having been terminated,” rather than “as a result of having been forced to take unpaid leave.” 995 F.2d at 693. One of those decisions, Brooms, stated that “a district court may award back pay to a plaintiff only as an equitable remedy, i.e., if a plaintiff can demonstrate that the defendant discharged him or her, either actually or constructively.” 881 F.2d at 423. Although Hertzberg does not cite Brooms, Hertzberg closely echoes that opinion. See Hertzberg, 261 F.3d at 659 (stating that “[a] victim of discrimination that leaves his or her employment as a result of the discrimination must show either an actual or constructive discharge” to receive back pay). Therefore, by distinguishing Brooms, and highlighting the difference between backpay for medical leave and backpay for discharge, Townsend effectively addressed the logic of Hertzberg.

Along similar lines, the district court was incorrect in suggesting that Townsend “rested on” an outdated conception of constructive discharge. R.273 at 13 / 14626 (SA.20; ECF No.14-2) (Post Trial Op.). Townsend did not rely on a constructive discharge theory; instead, the opinion distinguished prior backpay decisions that involved constructive or actual discharge. Again, Townsend involved an employee who sought backpay “as a result of having been forced to take unpaid leave,” not an employee who was forced to quit her position. 995 F.2d at 693.

3. The Civil Rights Act of 1991 did not overrule Townsend.

The district court also erred to the extent it concluded that Title VII’s 1991 amendments invalidated Townsend. R.273 at 13 / 14626 (SA.20; ECF No.14-2) (Post Trial Op.). The 1991 amendments made compensatory and punitive damages available to discrimination victims, while only equitable remedies were available under the pre-amendment version. Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071; 42 U.S.C. § 1981a(b)(2). Read together, Townsend and Hertzberg make clear that the 1991 amendments did not affect the availability of backpay for wages lost during medical leave.

Townsend explained that, although Title VII did not authorize compensatory damages before the 1991 amendments, Title VII’s equitable remedies included backpay to restore wages lost during unpaid leave caused by an unlawful employment practice. 995 F.2d at 694. Nothing in Townsend suggests that the 1991 amendments altered those equitable remedies. Instead, the panel declined to address whether the 1991 amendments had retroactive effect because that issue was pending before this Court en banc and before the Supreme Court. Id. Also, the panel suggested that the district court could convene an advisory jury on remand to address compensatory damages. Id.

Hertzberg, decided after the 1991 amendments took effect, concluded that the amendments “left undisturbed the equitable remedies available under Title VII.” Hertzberg, 261 F.3d at 659. As the panel explained, “Congress explicitly provided that the new remedy provisions did not subsume the old Title VII remedies.” Id. (citing 42 U.S.C. § 1981a(b)(2)). In summary, Townsend recognized that Title VII’s equitable remedies included backpay for employees who lost wages due to unpaid leave resulting from an unlawful employment practice, and Hertzberg confirmed that the 1991 amendments did not affect Title VII’s equitable remedies.

CONCLUSION

The EEOC urges this Court to affirm the district court’s order denying Costco’s motion for judgment as a matter of law and to uphold the jury’s verdict that Costco subjected Suppo to a hostile work environment. This Court should reverse the district court’s determination that the EEOC may not seek backpay on Suppo’s behalf and remand for further proceedings.

Respectfully submitted,

JAMES L. LEE s/ Anne W. King_____

Deputy General Counsel ANNE W. KING

Attorney

JENNIFER S. GOLDSTEIN U.S. EQUAL EMPLOYMENT

Associate General Counsel OPPORTUNITY COMMISSION

Office of General Counsel

ANNE NOEL OCCHIALINO 131 M St. NE, Fifth Floor

Senior Appellate Attorney Washington, DC 20507

(202) 663-4699

anne.king@eeoc.gov

Dated: October 19, 2017

[1] R.__ refers to docket entries in the district court. SA.__ refers to pages in Costco’s Short Appendix. ECF No.__ refers to docket entries in this Court. References to ECF No.__ do not include pincites because portions of the record transmitted to this Court are not internally paginated.

[2] As explained in note 1, R.__ refers to the docket entry in the district court. When a pincite is provided, the page number(s) before the forward slash represents the internal page number(s) of the document and the page number(s) after the forward slash represents the “PageID” number(s) assigned by the ECF filing system.

[3] Costco does not challenge the district court’s denial of its Rule 59 motion for new trial and the EEOC does not challenge the district court’s denial of injunctive relief.

[4] Costco relies on Suppo’s work schedule in calculating this figure. To clarify, Suppo’s work schedule reflected the dates when Suppo was scheduled to work, not necessarily the dates when she actually worked. For example, the schedule includes dates in September and October 2011 when Suppo did not work; her last day working at the Glenview warehouse was September 6, 2011. R.192-8 at 71-75 / 7016-20 (ECF No. 14-8) (Def. Trial Ex. 8); R.240 at 132 / 13160 (Trial Tr. Vol. 2).

[5] For example, in asserting that the EEOC did not present evidence of “objectively severe conduct,” Costco cites several decisions where this Court indicated that a single incident was sufficiently severe to establish a hostile work environment. Costco Br. 22 (citing Lapka v. Chertoff, 517 F.3d 974, 982-83 (7th Cir. 2008) (plaintiff’s alleged rape “alone may have been sufficient to create an objectively hostile environment”); McPherson v. City of Waukegan, 379 F.3d 430, 435, 438 (7th Cir. 2004) (employer “conced[ed] that a sexually harassing hostile work environment existed as of” the date when a supervisor first physically assaulted plaintiff, by feeling her breasts underneath her shirt); Patton v. Keystone RV Co., 455 F.3d 812, 817 (7th Cir. 2006) (“[G]roping of [plaintiff] under her shorts might be sufficient alone to create an abusive working environment.”)). However, the EEOC has never claimed that any single incident in this case was objectively abusive on its own; instead, the EEOC maintains that Thompson’s harassment was objectively severe or pervasive viewed as a whole.

[6] Costco heavily relies on Mendoza, Costco Br. 18-19, in which the district court granted judgment as a matter of law before the jury rendered a verdict, and a divided en banc Eleventh Circuit affirmed. 195 F.3d at 1241-42. But even if Mendoza were not factually distinct, there are good reasons for this Court not to follow that decision. The four dissenting judges characterized the majority decision as “a major departure from established sexual harassment law,” id. at 1269 (Tjoflat, J., dissenting), that “usurp[ed] the quintessential jury function” by “selectively considering the facts and choosing the inferences to be drawn from them.” Id. at 1270 (Barkett, J., dissenting). For example, the primary dissent emphasized that, taken in context, the alleged harasser’s statement (“I’m getting fired up”) could be viewed as a “suggestive comment” that rendered a separate incident of physical contact even more severe. Id. at 1263 (Tjoflat, J., dissenting). Similarly, in Duncan v. General Motors Corp., 300 F.3d 928 (8th Cir. 2002), another out-of-circuit decision granting judgment as a matter of law, on which Costco also relies, the dissent emphasized that, “[o]nce there is evidence of improper conduct and subjective offense, the determination of whether the conduct rose to the level of abuse is largely in the hands of the jury.” Id. at 938 (Arnold, J., dissenting). Among other things, the Duncan dissent underscored that “the harassing acts were directed specifically at [the plaintiff]” and that the alleged harasser “repeatedly touched [plaintiff] inappropriately on her hand.” Id. at 937 (Arnold, J., dissenting).