Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, bars employment discrimination based on sex, but it does not expressly prohibit harassment. The Supreme Court has interpreted the statute to prohibit harassing conduct when it is so intolerable it can be said to alter the terms, conditions, or privileges of employment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66-67, 73 (1986). The Court has explained that harassment reaches this level when it is severe or pervasive. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). In making this assessment, courts are to consider all the circumstances, including the frequency and severity of the discriminatory conduct; whether it is physically threatening or humiliating; and whether it unreasonably interferes with an employee’s work performance. See, e.g., EEOC v. Cent. Wholesalers, Inc., 573 F.3d 167, 175-76 (4th Cir. 2009). Courts commonly observe that the bar for showing actionable harassment is high, and they regularly dismiss Title VII harassment claims when plaintiffs fail to show sufficient severity or pervasiveness. See, e.g., EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008). Assuming a plaintiff shows she has suffered harassment, she must also show that the employer should be held liable for the harassment. To decide this, courts consider whether the harasser had supervisory authority over the plaintiff, whether the plaintiff suffered an adverse action such as termination, and whether the employer took steps to prevent and remedy harassment. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 747 (1998). Courts also consider whether the plaintiff took advantage of opportunities to report and remedy harassment. Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). Title VII sexual harassment can include not only unwelcome sexual advances, but also proposals that condition employment benefits on a worker submitting to sexual demands. Such harassment can also include mistreatment based on sexual orientation, gender identity, or failure to conform to sex-based stereotypes. Treating workers of one gender worse than others—sexist harassment—is also illegal, even if the conduct is not sexual. Title VII’s anti-retaliation provision makes it unlawful for an employer to discriminate against an employee for reporting a Title VII violation. 42 U.S.C. § 2000e-3(a). The provision bars adverse action taken because an employee has opposed employment discrimination or has participated in a Title VII enforcement action. This includes making a charge, testifying, assisting, or contributing to an investigation, proceeding, or hearing. An employee may be protected from retaliation even if he or she reports behavior that does not qualify as a Title VII violation. To be protected against retaliation, a plaintiff must have a good faith or objectively reasonable belief that the conduct he or she reported was unlawful under Title VII. EEOC v. Rite Way Serv., Inc., 819 F.3d 235, 237 (5th Cir. 2016). Beyond prohibiting retaliation in the form of adverse employment actions like termination or demotion, Title VII also bars retaliatory harassment—that is, when a plaintiff reports a potential Title VII violation of any kind, and the employer reacts by harassing the employee. A plaintiff may recover compensatory damages in any case of intentional discrimination, including sexual harassment. 42 U.S.C. § 1981a. Compensatory damages can include future pecuniary losses, emotional pain, suffering, inconvenience, and other nonpecuniary losses. Id. § 1981a(b)(3). A plaintiff may also recover punitive damages in some circumstances. Damages are capped based on an employer’s size. A worker who was discharged, constructively or otherwise, may also be eligible for awards of backpay or frontpay.
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