Table of Contents

Certificate of Interested Persons and Corporate Disclosure Statement............... C-1

Table of Authorities............................................................................................ ii

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

Statement of the Issue......................................................................................... 1

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

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

B. Magistrate’s Report and Recommendation...................................... 3

C. District Court Opinion.................................................................... 5

Summary of Argument....................................................................................... 6

Argument........................................................................................................... 8

Burlington Northern prohibits harassment in retaliation for the exercise of protected conduct if the harassment “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination,” regardless of whether the harassment is severe or pervasive enough to create a hostile work environment................ 8

A. Burlington Northern applies to retaliatory harassment...................... 8

B. Circuit precedent does not require a different result........................ 12

Conclusion....................................................................................................... 17

Certificate of Compliance

Table of Authorities

Cases

Alford v. Martin & Gass, Inc., 391 F. App’x 296 (4th Cir. 2010)........................ 15

Berry v. Stevinson Chevrolet, 74 F.3d 980 (10th Cir. 1996)................................ 11

Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264 (4th Cir. 2015) (en banc)..... 6

*Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)............. 1, 3, 5-17

Donaldson v. CDB Inc., 335 F. App’x 494 (5th Cir. 2009)................................. 16

Frazier v. Richland Pub. Health, 685 F. App’x 443 (6th Cir. 2017).................... 16

Gowski v. Peake, 682 F.3d 1299 (11th Cir. 2012)..................................... 5, 13, 16

Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993).................................... 5, 6, 12, 17

Jensen v. Potter, 435 F.3d 444 (3d Cir. 2006).................................................... 15

Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584 (6th Cir. 2007)............... 16

Moore v. City of Phila., 461 F.3d 331 (3d Cir. 2006).......................................... 15

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998)............................ 6

Ray v. McCullough Payne & Haan, LLC, 838 F.3d 1107 (11th Cir. 2016).......... 13

Rispoli v. King Cty., 297 F. App’x 713 (9th Cir. 2008)....................................... 16

Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997)............................. 15

Rochon v. Gonzales, 438 F.3d 1211 (D.C. Cir. 2006)......................................... 11

Swindle v. Jefferson Cty. Comm’n, 593 F. App’x 919 (11th Cir. 2014)............ 5, 13

Rules and Regulations

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

11th Cir. R. 36-2.............................................................................................. 13

Federal Sector Equal Employment Opportunity, 77 Fed. Reg. 43498,

2012 WL 3017632 (July 25, 2012).................................................................... 14

Administrative Authority

EEOC Enforcement Guidance on Retaliation and Related Issues,

No. 915.004, 2016 WL 4688886 (Aug. 25, 2016)........................................... 6, 14

McCants v. Donley, EEOC Doc. 0120090803, 2010 WL 2934900

(July 9, 2010)................................................................................................... 14

Whitman v. Donahoe, EEOC Doc. 0120092150, 2011 WL 1370024

(Mar. 31, 2011)................................................................................................ 14

Statement of Interest

The Equal Employment Opportunity Commission (“EEOC”) is charged by Congress with interpreting, administering, and enforcing federal laws against employment discrimination. The Supreme Court has held that employers are liable for retaliation under the employment discrimination statutes for conduct that “well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks and citations omitted). Notwithstanding this Supreme Court precedent, the district court held that retaliatory harassment must satisfy a different and more stringent standard for liability. There is no legal basis for distinguishing retaliatory harassment from any other form of retaliation. Contrary to the district court’s holding, Burlington Northern prohibits all retaliation that might deter a reasonable employee from complaining about discrimination.

The EEOC has a strong interest in seeing that courts interpret the employment discrimination statutes correctly. Accordingly, it offers its views to the Court. The EEOC files this brief pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure.

Statement of the Issue

Given that Burlington Northern prohibits all retaliatory conduct that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination,” can retaliatory harassment be actionable regardless of whether it meets the standard for discriminatory harassment?

Statement of the Case

A. Statement of Facts[1]

Susan Monaghan, a white woman over the age of 40, was an executive assistant at Worldpay for three months in 2014. During most of that time, she was supervised by senior executive assistant Tammi Daniel, a younger black woman. Shortly after Monaghan began working, Daniel made a series of offensive race- and age-based comments to her. Among these were that it was “dark in here” before Monaghan arrived, that Monaghan needed a “suntan” to work in the executive suite, that “you white girls kill me,” that Monaghan was “over the hill,” and that Monaghan was “too old” to fit in at the office.

Monaghan complained to the executive leadership team about Daniel’s conduct. In response, Daniel yelled at her during a one-hour, one-on-one meeting in which she forbade Monaghan from speaking with the executive leadership team and told her that she was “blackballed,” that her days working for Worldpay were numbered, and that she was “fucked” because Daniel was friends with the senior vice president of human resources. Additionally, Daniel told Monaghan that she and her boyfriend knew where Monaghan lived and that by complaining, she had “slit her own throat.” Monaghan complained again, and Daniel told her, “Listen, you better watch it, white girl, I am training [another employee] to take your job.” She also told Monaghan that she was “worried about [Monaghan],” that Monaghan needed to “watch herself,” and that Daniel’s boyfriend had “bucks.” Monaghan interpreted these statements as threats.

Worldpay fired Daniel for poor performance. A short time later, Worldpay fired Monaghan as well.

Monaghan sued under Title VII and the ADEA, alleging a hostile work environment and illegal termination because of her race and age, retaliatory termination, and retaliatory harassment. R.1. She subsequently abandoned her substantive claims, leaving only the claims for retaliation. R.76-3 at 2 n.1; R.85 at 28. With respect to her retaliatory harassment claim, Monaghan argued that she endured an adverse action within the meaning of Burlington Northern because Daniel’s conduct “ʻwell might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’” R.76-3 at 11 (quoting Burlington N., 548 U.S. at 68).

B. Magistrate’s Report and Recommendation

The magistrate judge refused to apply Burlington Northern’s adverse action standard to Monaghan’s retaliatory harassment claim. “ʻWhen evaluating whether an employer’s actions constitute an “adverse employment action” within the context of a claim of retaliatory hostile work environment,’” the magistrate said, “ʻcourts do not employ the standard typical of retaliation claims – i.e., whether the employer’s actions “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Instead, courts apply the “severe or pervasive” standard typical of hostile work environment claims.’” R.85 at 37 n.8 (quoting Paschal v. McHugh, No. CV-12-S-2985-NE, 2015 WL 3836965, at *31 (N.D. Ala. June 22, 2015), aff’d sub nom. Paschal v. Sec’y of the Army, 648 F. App’x 898 (11th Cir. 2016) (per curiam)). Applying the “severe or pervasive” standard for substantive discrimination claims, the magistrate agreed with Worldpay that Daniel’s harassment was not “sufficient to materially alter [Monaghan’s] employment.” R.85 at 37, 39-41.

The magistrate also speculated that Monaghan may not have engaged in protected activity for purposes of Title VII’s anti-retaliation provision because the harassment that she opposed “[fell] well-short of an adverse employment action.” R.85 at 44 n.11. “Although the conduct opposed need not be actual actionable harassment or discrimination to provide an objectively reasonable basis for complaining,” he said, “it must still be close.” Id.

C. District Court Opinion

The district court agreed with the magistrate that, based on Circuit precedent, Burlington Northern does not apply to claims of retaliatory harassment. R.91 at 5-6 (citing Swindle v. Jefferson Cty. Comm’n, 593 F. App’x 919, 928-29 (11th Cir. 2015); Gowski v. Peake, 682 F.3d 1299, 1312 (11th Cir. 2012) (per curiam)). The court did not address the magistrate’s alternative hypothesis that Monaghan may not have engaged in protected activity.

Applying the substantive discrimination standard to Monaghan’s retaliatory harassment claim, the court concluded that “the threats of physical harm and job loss by Plaintiff’s immediate supervisor, albeit highly inappropriate, were not sufficiently severe or pervasive to alter the terms or conditions of Plaintiff’s employment. Thus, Plaintiff cannot establish a prima facie case of retaliatory harassment under Harris’s standard.” R.91 at 6 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993)).

Summary of Argument[2]

In Burlington Northern, the Supreme Court recognized the wide range of conduct that might deter a reasonable employee from complaining about discrimination. The Court emphasized that the anti-discrimination statutes depend for their effectiveness on the willingness of employees to file charges and otherwise oppose unlawful conduct. The anti-retaliation provisions, in turn, protect those employees who speak out. Robust protections against retaliation are critical to the statutory scheme.

In light of this purpose, the Supreme Court announced a new, expansive standard for proving that a retaliatory adverse action is materially adverse. For a retaliation claim, the Court said, a plaintiff must show that the challenged action “well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Conduct might qualify as an adverse action under this standard, the Court said, even if it would not do so for purposes of a substantive discrimination claim.

The Burlington Northern standard is, by its very terms, a broad, generally applicable test. All forms of retaliation, including retaliatory harassment, fall within its scope. Thus, retaliatory harassment is actionable if it “well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Whether the harassment would also support a hostile environment claim under the anti-discrimination provision is irrelevant to the retaliation analysis.

The district court acknowledged Burlington Northern but, citing two decisions from this Court, wrongly held that circuit precedent required it to apply substantive harassment law to Monaghan’s retaliatory harassment claim. One of the decisions the court cited was unpublished, and the other assumed without analyzing or even mentioning Burlington Northern that retaliatory harassment should be analyzed the same way as substantive harassment. Neither of these cases is controlling – one because it is unpublished, and the other because it did not recognize the existence of a legal issue. Moreover, by exempting retaliatory harassment from the standard that applies to all other forms of retaliation, these cases conflict with Burlington Northern and should not be followed.

Argument

Burlington Northern prohibits harassment in retaliation for the exercise of protected conduct if the harassment “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination,” regardless of whether the harassment is severe or pervasive enough to create a hostile work environment.

The district court erred by holding that retaliatory harassment is actionable only if it would also be substantively actionable as a hostile work environment. The Supreme Court held in Burlington Northern that Title VII’s adverse action standards are broader for retaliation claims than for substantive claims. 548 U.S. at 68. Nothing in Burlington Northern or this Court’s binding precedent exempts retaliatory harassment from this general rule.

A. Burlington Northern applies to retaliatory harassment.

In Burlington Northern, the Supreme Court relied on differences in statutory language to interpret the adverse action standard of Title VII’s anti-retaliation provision more broadly than the adverse action standard of the substantive prohibition on discrimination. Title VII’s substantive provision makes it an unlawful employment practice for an employer “‘to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin,’ or ‘to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.’” Burlington N., 548 U.S. at 62 (emphasis in original) (quoting 42 U.S.C. § 2000e-2(a)).

The anti-retaliation provision, in contrast, does not focus on employment opportunities. Rather, it makes it unlawful for an employer “‘to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.’” Id. (emphasis in original) (quoting 42 U.S.C. § 2000e-3(a)).

The Court observed that where Congress has created linguistic distinctions between different parts of a statute, courts normally presume that it did so intentionally. Id. at 62-63. As to Title VII, the Court emphasized, “[t]he italicized words in the substantive provision – ‘hire,’ ‘discharge,’ ‘compensation, terms, conditions, or privileges of employment,’ ‘employment opportunities,’ and ‘status as an employee’ – explicitly limit the scope of that provision to actions that affect employment or alter the conditions of the workplace. No such limiting words appear in the antiretaliation provision.” Id. at 62.

The different statutory language, the Court explained, reflects different statutory purposes. “The antidiscrimination provision seeks a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status. The antiretaliation provision seeks to secure that primary objective by preventing an employer from interfering (through retaliation) with an employee’s efforts to secure or advance enforcement of the Act’s basic guarantees.” Id. at 63 (internal citation omitted).

Thus, the Court in Burlington Northern announced a new, more expansive standard for showing a materially adverse action in the retaliation context: “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, ‘which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Id. at 68 (citations and internal quotation marks omitted). Although the anti-retaliation provision “cannot immunize [an] employee from those petty slights or minor annoyances that often take place at work and that all employees experience . . . [it] prohibit[s] employer actions that are likely ‘to deter victims of discrimination from complaining to the EEOC.’” Id. (citation omitted).

The Burlington Northern Court clarified that its newly articulated standard would apply to a broad range of employer conduct. “[A] legal standard that speaks in general terms rather than specific prohibited acts is preferable,” the Court said, “for an ‘act that would be immaterial in some situations is material in others.’” Id. at 69 (citation omitted). For example, the Court observed, “A schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school-age children.” Id. The Court also cited with approval Rochon v. Gonzales, 438 F.3d 1211, 1213 (D.C. Cir. 2006) (FBI retaliated against employee by refusing, contrary to policy, to investigate death threats from a federal prisoner made against the agent and his wife), and Berry v. Stevinson Chevrolet, 74 F.3d 980, 984, 986 (10th Cir. 1996) (employer retaliated against former employee by filing false criminal charges). Burlington N., 548 U.S. at 63-64.

Burlington Northern leaves no room for exceptions. “[A] limited construction [of the anti-retaliation provision],” the Court said, “would fail to fully achieve the antiretaliation provision’s ‘primary purpose,’ namely, ‘[m]aintaining unfettered access to statutory remedial mechanisms.’” Id. at 64 (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997)). Accordingly, courts must evaluate retaliatory harassment just as they evaluate all other forms of retaliation: by applying the Burlington Northern adverse action standard rather than the substantive standard for proving discrimination (here, a hostile work environment).

B. Circuit precedent does not require a different result.

The district court here acknowledged Burlington Northern but held that binding circuit precedent required it to treat retaliatory harassment differently. According to the court, a plaintiff alleging retaliatory harassment must show not that the harassment would be reasonably likely to deter employees from engaging in protected activity (the Burlington Northern standard), but that it was sufficiently “severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,” Harris, 510 U.S. at 21 (citation omitted) (the substantive standard). R.91 at 5-6.

Even if the district court were correct that this Court has carved out a mandatory exception for retaliatory harassment, such a carve-out would violate Burlington Northern. The Supreme Court’s ruling expansively prohibits all retaliatory conduct that “well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Burlington N., 548 U.S. at 68. There is no room in Burlington Northern for a retaliatory harassment carve-out.

In fact, however, this Court does not require courts to hold retaliatory harassment to a different and higher standard than other forms of retaliation. The only Eleventh Circuit case expressly holding that retaliatory harassment is exempt from Burlington Northern is Swindle v. Jefferson County Commission, 593 F. App’x 919, 928-29 (11th Cir. 2014), an unpublished decision. Unpublished decisions are not binding precedent. Ray v. McCullough Payne & Haan, LLC, 838 F.3d 1107, 1109 (11th Cir. 2016); 11th Cir. R. 36-2.

Swindle relied on Gowski v. Peake, 682 F.3d 1299 (11th Cir. 2012), to hold that “our precedent requires a plaintiff claiming retaliatory harassment to show that ‘the workplace [wa]s permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the [plaintiff’s] employment or create an abusive working environment.’” Swindle, 593 F. App’x at 928 (brackets in original) (quoting Gowski, 682 F.3d at 1311). Gowski, however, does not say what Swindle says it does.

Gowski was the first case in which this Court recognized retaliatory harassment as a cause of action. Gowski, 682 F.3d at 1311-12. Although Gowski did apply the substantive adverse action standard to this newly recognized claim, it did not cite Burlington Northern’s standard for a retaliatory adverse action. Instead, it simply assumed without discussion that retaliatory harassment must be analyzed the same way as substantive harassment. Both Swindle and the district court in the instant case erred by treating Gowski’s assumption as a mandate to apply the substantive adverse action standard to retaliatory harassment claims.

As the Supreme Court explained in Burlington Northern, the purpose of Title VII’s anti-retaliation provision is to guarantee that employees will not be deterred from “efforts to secure or advance enforcement of the Act’s basic guarantees.” 548 U.S. at 63. Failing to prohibit retaliatory harassment that is sufficient to deter a reasonable employee from “making or supporting a charge of discrimination” would violate this statutory goal. Id. at 68; see also id. at 64 (noting “the many forms that effective retaliation can take”); EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004, 2016 WL 4688886, at *20 (Aug. 25, 2016) (“If the conduct would be sufficiently material to deter protected activity in the given context, even if it were insufficiently severe or pervasive to create a hostile work environment, there would be actionable retaliation.”); see also Federal Sector Equal Employment Opportunity, 77 Fed. Reg. 43498, 43501-02, 2012 WL 3017632 (July 25, 2012) (EEOC rule taking this position with respect to federal sector regulations) (codified at 29 C.F.R. § 1614.107(a)(5)); McCants v. Donley, EEOC Doc. 0120090803, 2010 WL 2934900, at *3 (July 9, 2010) (“[T]he Commission finds that Complainant also states a claim for retaliatory harassment because these actions are likely to have a chilling effect on Complainant and other employees in the workplace.”); Whitman v. Donahoe, EEOC Doc. 0120092150, 2011 WL 1370024, at *3 (Mar. 31, 2011) (“When an Agency manager or supervisor retaliates against an employee for engaging in protected activity through threats, harassment, or any other adverse treatment that is reasonably likely to deter such activity by that employee or others, it is a violation of the anti-discrimination laws.”).

The Third Circuit agrees that Burlington Northern covers retaliatory harassment. Prior to Burlington Northern, the Third Circuit required all claimants alleging retaliation to satisfy the substantive adverse action standard. Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997). Thus, plaintiffs alleging retaliatory harassment had to show that the harassment was severe or pervasive enough to establish a hostile work environment. Jensen v. Potter, 435 F.3d 444, 449 (3d Cir. 2006). After Burlington Northern, however, the Third Circuit recognized that its previous rule was no longer valid. Moore v. City of Phila., 461 F.3d 331, 341 (3d Cir. 2006). Based on Burlington Northern, the Court now requires plaintiffs alleging retaliatory harassment to show “that a reasonable employee would have found the alleged retaliatory actions ‘materially adverse’ in that they ‘well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Moore, 461 F.3d at 341 (quoting Burlington N., 548 U.S. at 68).

The Fourth, Fifth, and Ninth Circuits also agree, albeit in unpublished decisions, that Burlington Northern covers retaliatory harassment.

See Alford v. Martin & Gass, Inc., 391 F. App’x 296, 304 (4th Cir. 2010) (applying Burlington Northern standard to retaliatory harassment claim); Donaldson v. CDB Inc., 335 F. App’x 494, 507 (5th Cir. 2009) (“While pre-Burlington Northern, our court rejected the notion that retaliatory harassment could be sufficiently adverse to be considered actionable, the new, Burlington Northern standard makes clear that a genuine issue of material fact exists for whether the conduct against Donaldson . . . was such that it ‘might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’”) (internal citations omitted); Rispoli v. King Cty., 297 F. App’x 713, 716 (9th Cir. 2008) (applying Burlington Northern standard to retaliatory harassment claim).

Only the Sixth Circuit continues to apply the substantive adverse action standard to retaliatory harassment, and, like Gowski, it does so reflexively, without analyzing the impact of Burlington Northern. Instead, the Sixth Circuit consistently cites to pre-Burlington Northern precedent holding that a plaintiff must show that retaliatory harassment was “severe or pervasive.” See Frazier v. Richland Pub. Health, 685 F. App’x 443, 450 (6th Cir. 2017) (citing Morris v. Oldham Cty. Fiscal Court, 201 F.3d 784, 792 (6th Cir. 2000)); Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 595 (6th Cir. 2007) (same). That precedent is no longer good law after Burlington Northern.

Conclusion

Retaliatory harassment can effectively deter an employee from engaging in protected activity regardless of whether it is severe or pervasive enough to support a hostile work environment claim. As long as the harassment satisfies the Burlington Northern standard for actionable retaliation, it need not also satisfy the Harris standard for substantive discrimination. Burlington Northern applies to all forms of retaliation, and the district court erred by carving out retaliatory harassment for special treatment.

For the foregoing reasons, the EEOC respectfully urges this Court to reverse and remand for further proceedings.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Acting Assistant General Counsel

/s/ Gail S. Coleman

Attorney

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of General Counsel

131 M Street, NE, Room 5SW24L

Washington, DC 20507

(202) 663-4055 gail.coleman@eeoc.gov

[1] The factual representations in this brief are based on the magistrate’s report and recommendation (R.85).

[2] Because the district court did not discuss the magistrate’s suggestion that Monaghan may not have engaged in protected activity, this brief does not focus on that issue. Nevertheless, the EEOC wishes to express its disagreement with the magistrate’s assertion that “the conduct opposed need not be actual actionable harassment or discrimination to provide an objectively reasonable basis for complaining, [but] it must still be close.” R.85 at 44 n.11. In the EEOC’s view, Title VII encourages employees to “‘report harassing conduct before it becomes severe or pervasive.’” EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004, 2016 WL 4688886, at *10 (Aug. 25, 2016) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764 (1998)) (emphasis in Enforcement Guidance). Thus, an employee is protected from retaliation when she reasonably believes that the conduct opposed could violate Title VII “if repeated,” EEOC Enforcement Guidance, 2016 WL 4688886, at *9, or when a hostile work environment “although not fully formed, is in progress,” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 282 (4th Cir. 2015) (en banc).

Additionally, the EEOC observes that on this factual record, it is far from clear that a trier of fact would be compelled to share the magistrate’s view that the harassment Monaghan suffered—which included not only multiple race-based remarks but explicit threats to her safety, some in racial terms—“fell well short” of being substantively actionable. See, e.g., Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (“[T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering ‘all the circumstances.’”) (quoting Harris, 510 U.S. at 23).