r humiliating, and the degree to which the conduct unreasonably interferes with an employee’s work performance.
(Footnotes omitted.)
	Luckie v. Ameritech Corp., 389 F.3d 708, 713, 94 FEP Cases 1351 (7th Cir. 2004), a Title VII racial harassment case, stated: “To state a claim for a hostile work environment, Luckie must demonstrate that: (1) she was subject to unwelcome harassment; (2) the harassment was based on her race; (3) the harassment was sufficiently severe or pervasive so as to alter the conditions of her employment and create a hostile or abusive atmosphere; and (4) there is a basis for employer liability.” (Citation omitted.) Accord, Smith v. Northeastern Illinois University, 388 F.3d 559, 566, 94 FEP Cases 1295 (7th Cir. 2004).
	Herron v. DaimlerChrysler Corp., 388 F.3d 293, 302, 94 FEP Cases 1219 (7th Cir. 2004), a Title VII and § 1981 racial harassment case, stated: “To succeed on his racial harassment claim, Herron has to show that: ‘(1) he was subject to unwelcome harassment; (2) the harassment was based on his race; (3) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive working environment that seriously affected his psychological well-being; and (4) there is a basis for employer liability.’” (Citation omitted.) Accord, McPherson v. City of Waukegan, 379 F.3d 430, 437–38, 94 FEP Cases 247, 94 FEP Cases 257 (7th Cir. 2004) (sexual harassment).
	Dandy v. United Parcel Service, Inc., 388 F.3d 263, 271, 94 FEP Cases 1156 (7th Cir. 2004), stated: “To be actionable under § 1981, harassment must be: (1) based on race; (2) subjectively and objectively hostile; and (3) sufficiently severe or pervasive to interfere with an employee’s ability to perform his assigned duties. . . . Under the objective hostility analysis, courts may consider: (1) the frequency of the conduct; (2) the severity of the conduct; (3) ‘whether it is physically threatening or humiliating, or a mere offensive utterance’; and (4) whether it unreasonably interferes with the employee’s ability to complete his or her assigned duties.” (Citations omitted.)
	Okruhlik v. University of Arkansas, 395 F.3d 872, 881, 95 FEP Cases 82 (8th Cir. 2005), stated: “To establish a prima facie case for a hostile work environment based on sexual harassment, Okruhlik must show (1) that she belongs to a protected group; (2) that she was subjected to unwelcome sexual harassment; (3) that the harassment was based on sex; and (4) that the harassment affected a term, condition or privilege of her employment.” (Citation omitted.) Accord, LeGrand v. Area Resources for Community and Human Services, 394 F.3d 1098, 1101, 95 FEP Cases 14 (8th Cir. 2005); Baker v. John Morrell & Co., 382 F.3d 816, 828 (8th Cir. 2004).
	Hesse v. Avis Rent A Car System, Inc., 394 F.3d 624, 629, 94 FEP Cases 1805 (8th Cir. 2005), stated: “To establish a prima face case that she was subjected to a hostile work environment, Hesse must show that (1) she is a member of a protected group; (2) unwelcome harassment occurred; (3) a causal nexus existed between the harassment and her protected group status; and (4) the harassment affected a term, condition, or privilege of employment.”
	Williams v. ConAgra Poultry Co., 378 F.3d 790, 794, 94 FEP Cases 266 (8th Cir. 2004), stated: “In order to prevail on a harassment claim, a plaintiff must show that he or she is a member of a protected group, that there was “unwelcome harassment,” that there was a causal nexus between the harassment and membership in the protected group, and that the harassment affected a term, condition, or privilege of employment. . . . If the harassment comes from non-supervisory employees, the plaintiff must also show that the employer knew or should have known about the harassment but failed to take proper action.” (Citations omitted.)
	Porter v. California Dept. of Corrections, 383 F.3d 1018, 1027, 94 FEP Cases 928 (9th Cir. 2004), stated: “In order for this claim to survive summary judgment, Porter must show that: (1) she was subjected to verbal or physical conduct of a sexual nature; (2) the conduct was unwelcome; and (3) the conduct was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment.” (Citation omitted.)
Who is a Supervisor?
	Noviello v. City of Boston, 398 F.3d 76, 96 (1st Cir. 2005), affirmed the grant of summary judgment to the Title VII defendant on plaintiff’s claim of sexual harassment. The court held that plaintiff’s harassers were merely second-rung “supervisors” who, despite their title, were not supervisors within the meaning of Faragher and Ellerth: “Having in mind both common law agency principles and the purposes of the anti-discrimination and anti-retaliation laws, we agree with the Seventh Circuit that ‘the essence of supervisory status is the authority to affect the terms and conditions of the victim’s employment.’ . . . This authority ‘primarily consists of the power to hire, fire, demote, promote, transfer, or discipline an employee.’ . . . Without some modicum of this authority, a harasser cannot qualify as a supervisor for purposes of imputing vicarious liability to the employer in a Title VII case, but, rather, should be regarded as an ordinary coworker.” (Citations omitted.)
	Joens v. John Morrell & Co., 354 F.3d 938, 940–41, 93 FEP Cases 72 (8th Cir. 2004), affirmed the grant of summary judgment to the Title VII hostile-environment defendant, holding that the alleged harasser was not plaintiff’s supervisor. The court canvassed the approaches of different Circuits, stating:
The decisions of the few circuits to address the question are not entirely consistent. The majority hold that, to be a supervisor, the alleged harasser must have had the power (not necessarily exercised) to take tangible employment action against the victim, such as the authority to hire, fire, promote, or reassign to significantly different duties. See Hall v. Bodine Elec. Co., 276 F.3d 345, 355 (7th Cir. 2002); Mikels v. City of Durham, 183 F.3d 323, 333-34 (4th Cir.1999). By contrast, the Second Circuit recently adopted a somewhat broader standard, concluding that an alleged harasser is a supervisor for these purposes if he possessed “authority to direct the employee’s daily work activities,” even if he otherwise lacked the power to take tangible employment action against the victim. Mack v. Otis Elevator Co., 326 F.3d 116, 127 (2d Cir.), cert. denied, __ U.S. __, 124 S. Ct. 562, __ L. Ed. 2d __ (2003). 
The court did not resolve the question, but held that the alleged harasser was a co-worker because he was only the foreman of one of the production lines that depended on plaintiff to make their boxes. He was a customer without direct authority to control plaintiff’s activities. He could demand that she allocate more of her production to him, but she had discretion and the allocation did not affect her total work effort. While he could “write her up,” all foremen could do so, there was no evidence that he had ever done so, and the power to discipline plaintiff lay with the Human Resource Department. Id. at 941.
	Porter v. California Dept. of Corrections, 383 F.3d 1018, 1025–26, 94 FEP Cases 928 (9th Cir. 2004), reversed the grant of summary judgment to the Title VII sexual harassment defendant and held that plaintiff established a prima facie case of quid pro quo sexual harassment when she showed that a transfer to a position with significantly different responsibilities was denied because plaintiff presented evidence that she had rejected the decisionmaker’s demands for sexual favors prior to his becoming a supervisor, when he was a co-worker and union official assigned to investigate her claims of sexual harassment by another supervisor, and because she showed that he was influenced in his decisions by the other supervisor she had rejected. The court explained at 1026 n.3:
	Contrary to the dissent’s suggestion, we do not hold that an employer may encounter vicarious liability “based on sexual advances made by coworkers without supervisory capacity.” Rather, we hold that an employer may be vicariously liable for timely personnel decisions made by one of its supervisors on the basis of an unlawful criteria. Such liability may attach if the plaintiff can show that the challenged personnel decisions were motivated by her historical refusal to submit to the decision-maker’s workplace demands for sexual favors, or by her having declined the workplace demands for sexual favors urged by other supervisors who held sway over the personnel decisions in question.
Judge Tallman dissented as to this part of the decision. Id. at 1031–35.
	Nieto v. Kapoor, 268 F.3d 1208, 1215–17, 18 IER Cases 97 (10th Cir. 2001), affirmed the judgment on a jury verdict for $3,750,000 in compensatory and punitive damages to five former employees of the Eastern New Mexico Medical Center, against the defendant contractor who is the Medical Director of the Radiation Oncology Department, for extreme racial and sexual harassment of them and of patients in violation of the Equal Protection Clause, First Amendment retaliation, and intentional infliction of emotional distress. The court held that the lower court did not err in finding that Dr. Kapoor was a state actor. Because of the powers he was given to direct the Department, it did not matter that he was a contractor instead of an employee. It is the function that matters. Here, the plaintiff employees had no choice about their supervisor, and he carried out all of the managerial duties of an employee manager. There was a clear nexus between his authority and the violation.
What Makes an Environment Hostile? 
What Plaintiff Experienced
	Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 190–91, 94 FEP Cases 577 (4th Cir. 2004), affirmed the grant of summary judgment to the § 1981 racial harassment defendant. The court held that plaintiff could not establish a hostile environment because he failed to show any racially offensive conduct directed at him. Plaintiff’s complaints involved the actions of one employee with whom he did not get along, but he showed no evidence of a racial motivation. “At most, the record contains a hearsay statement that Callahan once stated in reference to Honor that, ‘she didn’t know how to work with an African-American male.’ Assuming this statement is accurate, and that Honor was aware of it prior to this litigation, it is not “sufficiently severe and pervasive” to create an objectively abusive atmosphere.”  Id. at 191.
	Septimus v. University of Houston, 399 F.3d 601, 95 FEP Cases 129 (5th Cir. 2005), affirmed the grant of summary judgment to defendant and held at 612 that a two-hour “harangue” in her office, which frightened her and made her feel useless and incompetent, questioning her about her presentation in a “mocking tone,” and a comment by her supervisor that she “was like a needy old girlfriend,” did not rise to the level of a hostile environment. 
	Robinson v. Sappington, 351 F.3d 317, 330, 93 FEP Cases 75 (7th Cir. 2003), reversed the grant of summary judgment to the Title VII defendants, and held that plaintiff had met the objective test for sexual harassment:
	First, we note that there were several overtly sexual comments made by Judge Sappington to Ms. Robinson including Judge Sappington’s offer to purchase Ms. Robinson a sexual device . . .; Judge Sappington’s comment that the attorneys were only speaking to her because she was wearing revealing clothing . . . and the twice-repeated comment that Judge Sappington would like Ms. Robinson to “sit on his face” . . . . In addition to these comments, there is strong evidence that Judge Sappington took an inappropriate interest in Ms. Robinson’s relationships with men, first inquiring as to the status of her marriage and later, on two occasions, expressing outrage at the possibility of her romantic involvement with anyone else.

	Second, we believe that much of Judge Sappington’s conduct reasonably could be construed as intimidating and threatening. Judge Sappington monitored Ms. Robinson’s actions both within the courthouse and after hours, going so far as to fly an aircraft over the farm of Ms. Robinson’s mother when he knew Ms. Robinson was visiting there. Judge Sappington exhibited anger when he believed other men showed interest in Ms. Robinson. He also subjected Ms. Robinson to hearing the details of a gruesome murder and suggested that she might face a similar fate. Finally, on one occasion, Judge Sappington grabbed Ms. Robinson’s face and told her point-blank that, if she “shacked up” with anyone else, he would kill her.

	Finally, Ms. Robinson was the recipient of other gestures that, although innocuous in themselves, when put in the larger context, served as constant reminders of Judge Sappington’s interest in her and in exercising control over her. Specifically, Judge Sappington called her beautiful, a “blonde Demi Moore” or a golden goddess on a daily basis. He took her to lunch and became angry if Ms. Robinson did not eat lunch with him. Additionally, for a period of several weeks, he shook Ms. Robinson’s hand on a daily basis to experience physical contact with her.

The court also relied on the fact that, as Judge Sappington’s secretary and court clerk, plaintiff had to work closely with him. Id. at 331.
	Ezell v. Potter, 400 F.3d 1041, 1048, 95 FEP Cases 689 (7th Cir. 2005), affirmed the grant of summary judgment to the race, sex, and age discrimination defendant on plaintiff’s harassment claim. Plaintiff showed that his supervisor made anti-white, anti-male, and anti-older worker comments sufficiently strong that they constituted direct evidence of discrimination on his disparate-treatment claims, but that he had not shown the comments were pervasive or severe. As to severity, the court held that they simply reflected ignorant stereotypes. As to pervasiveness, the court stated: “Ezell testified by affidavit that Wright made these kinds of remarks on a regular basis. Of course, a regular basis could be daily, weekly, monthly or even yearly; Ezell provides no detail on the regularity and so we cannot consider the few comments detailed in the briefs to be pervasive.” The court discussed the weight of racial and sexual slurs:
When it comes to racial or ethnic slurs, we have stated there is no magic number that constitutes a hostile environment. . . . Certain unambiguously racial epithets fall on the more “severe” end of the spectrum. . . . And we have noted that in the case of racial and ethnic slurs, some words are so outrageous that a single incident might qualify for a hostile environment claim. . . . At the same time, “a relentless pattern of lesser harassment that extends over a long period of time also violates the statute.” . . . What is alleged here is neither severe nor pervasive.
(Citations omitted.)
	Cerros v. Steel Technologies, Inc., 398 F.3d 944, 951 (7th Cir. 2005), reversed the judgment after a bench trial for the Title VII defendant, and ordered that the case be assigned to a different judge on remand, pursuant to Circuit Rule 36. The court held: “This implied prerequisite of supervisor involvement to establis