In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3788
RYAN LORD,
Plaintiff-Appellant,
v.
HIGH VOLTAGE SOFTWARE, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 09 C 4469 — James B. Zagel, Judge.
____________________
ARGUED JANUARY 19, 2016 — DECIDED OCTOBER 5, 2016
____________________
Before EASTERBROOK, ROVNER, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Ryan Lord claims that he was sexual-
ly harassed by male coworkers at High Voltage Software,
Inc., and that High Voltage fired him for complaining about
it. High Voltage responds that the conduct Lord complained
about wasn’t sexual harassment and that it fired Lord for
other reasons: failing to properly report his concerns, exces-
sive preoccupation with his coworkers’ performance, and
insubordination. The district court concluded that Lord’s
2 No. 13-3788
claims under Title VII for hostile work environment and
retaliation failed as a matter of law. The judge accordingly
entered summary judgment for High Voltage. We affirm.
Lord has not shown that he was harassed because of his sex,
nor has he called into doubt the sincerity of his employer’s
justifications for firing him.
I. Background
High Voltage develops software for video games. In Sep-
tember 2006 the company hired Lord as an associate pro-
ducer and initially assigned him to its Omni team, a working
group named after a game then under development. Lord
claims that in January 2007 his male team members began
teasing him about his supposed interest in a female audio
engineer. His coworkers would comment that Lord had “the
audio bug” or ask if he had “[taken] care of the audio bug”
whenever the female engineer was in the vicinity. According
to Lord, the phrase “audio bug” had sexual connotations
that referred to his rumored interest in his female coworker.
Lord first formally complained about the audio-bug joke
in a June 5, 2007 email to Human Resources Director Maggie
Bohlen. Bohlen initiated an investigation and then met with
Lord ten days later to discuss the results. She explained that
the audio-bug joke did not amount to sexual harassment but
directed Lord to report any further incidents of harassment
to human resources “immediately.”
Following Lord’s meeting with Bohlen, the company’s
president, John Kopecky, reassigned Lord to a different
development team to avoid further “team dynamic issues.”
Lord also met with Kopecky and Executive Producer Chad
Kent for a regular performance review. During that meeting,
No. 13-3788 3
Kopecky and Kent addressed Lord’s recent complaints about
harassment. They explained that High Voltage is a creative
workplace where “humor is a common method of commu-
nication.” But they also said that if Lord felt someone’s
comments crossed the line, he should ask that person to stop
and notify Kent immediately if the comments persisted.
Lord’s new working group was known as the Responder
team, and Lord began sharing an office with Nick Reimer,
another associate producer and fellow Responder team
member. Lord claims that between July 18 and July 27,
Reimer initiated unwanted physical contact on four separate
occasions. First, on July 18 Reimer poked Lord in the but-
tocks as Lord was bending over to put coins into a vending
machine. Next, on July 23 while Lord was talking with
another coworker, Reimer slapped Lord’s buttocks as he
walked past. Two days later Reimer again slapped Lord’s
buttocks while Lord was purchasing something from the
vending machine. Finally, on July 27 Reimer grabbed Lord
between his legs while Lord was writing on a white board.
Lord did not report any of these incidents when they oc-
curred, though he did tell Reimer to stop. Lord’s first formal
complaint about Reimer came on July 30, 2007, when he
went to the office on his day off to voice his concerns to
Bohlen. Before talking to Bohlen, however, Lord sought out
two coworkers who had witnessed Reimer’s conduct and
recorded statements from each. Lord also encountered Kent,
the Executive Producer, but said nothing about Reimer’s
behavior; he later explained that he was worried about
losing his job for being overly concerned about Reimer. Lord
reported Reimer’s conduct to Bohlen, who forwarded the
complaints to Kopecky.
4 No. 13-3788
On July 31 Kent issued an unrelated disciplinary “write-
up” to Reimer and Lord stemming from a DVD malfunction
that occurred during a presentation Kent was giving. Kent
thought that both Reimer and Lord were responsible for the
technical malfunction, but he was mistaken about Lord’s
degree of involvement. Lord immediately responded with a
heated email to Kent accusing the company of retaliating
against him for reporting sexual harassment by a coworker;
he also said he was “very close to filing a complaint with the
Illinois Department of Human Rights and the Equal Em-
ployment Opportunity Commission.” After discussing the
matter with Lord and investigating the DVD mishap further,
Kent promptly withdrew the write-up and apologized for
“misunderstanding [Lord’s] level of involvement with this
issue.”
The next day, August 1, High Voltage fired both Reimer
and Lord. According to personnel records documenting the
reasons for the terminations, Reimer was fired for harassing
Lord, and Lord was fired for four reasons: (1) failing to
immediately report incidents of harassment to Bohlen as
instructed; (2) failing to report incidents of harassment to
Kent, again as specifically instructed; (3) obsessively “track-
ing” the “performance, timeliness, and conduct” of his
coworkers; and (4) insubordination. The insubordination
charge had to do with Lord’s ill-tempered response to Kent’s
mistaken disciplinary write-up over the DVD malfunction.
Bohlen thought it was “inappropriate for [Lord] to threaten
the company[] instead of just correcting the mis-information
on the write-up.”
After losing his job, Lord filed an administrative com-
plaint with the EEOC and received notice of his right to sue.
No. 13-3788 5
He then brought this action against High Voltage alleging
claims for discrimination and retaliation in violation of
Title VII, 42 U.S.C. § 2000e–2. His discrimination claim was
premised on allegations that the company created a hostile
work environment. Lord also alleged disability discrimina-
tion under the Americans with Disabilities Act, 42 U.S.C.
§ 12112, and several state-law claims. 1
High Voltage moved for summary judgment on all
claims. The judge granted the motion, concluding that Lord
lacked sufficient evidence to permit any of his claims to go
forward. Lord appeals, challenging only the decision on the
Title VII claims.
II. Discussion
We review the district court’s order granting summary
judgment de novo, construing the evidence and drawing all
reasonable inferences in Lord’s favor. Smith v. Chi. Transit
Auth., 806 F.3d 900, 904 (7th Cir. 2015). Summary judgment
is appropriate if the record presents no genuine issues of
material fact and High Voltage is entitled to judgment as a
matter of law. FED. R. CIV. P. 56(a).
A. Discrimination
Title VII prohibits discrimination “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.” 42 U.S.C. § 2000e-
2(a)(1). This prohibition encompasses the “creation of a
hostile work environment” that is severe or pervasive
1 The ADA claims were predicated on his diagnosis and treatment for
anxiety and depressive disorders.
6 No. 13-3788
enough to affect the terms and conditions of employment.
Orton-Bell v. Indiana, 759 F.3d 768, 773 (7th Cir. 2014) (quot-
ing Vance v. Ball State Univ., 133 S. Ct. 2434, 2441 (2013)). A
hostile-work-environment claim requires proof of four
elements: (1) the plaintiff’s workplace was both subjectively
and objectively offensive; (2) the plaintiff’s sex was the cause
of the harassment; (3) the harassment was severe or perva-
sive; and (4) there is a basis for employer liability. Id.
Citing the audio-bug joke and Reimer’s unwanted physi-
cal contact, Lord maintains that the conduct of his male
coworkers created a hostile work environment. That claim is
a nonstarter because Lord has not established that his
coworkers harassed him because of his sex.
Same-sex harassment claims are cognizable under Title
VII provided that “the conduct at issue was not merely
tinged with offensive sexual connotations, but actually
constituted ‘discrimina[tion] … because of … sex.’” Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (quoting
42 U.S.C. § 2000e-2(a)(1)) (alteration in original). Of course,
that requirement applies to all claims of employment-based
sexual harassment, whether same sex or opposite sex. Id. at
80 (“The critical issue, Title VII’s text indicates, is whether
members of one sex are exposed to disadvantageous terms
or conditions of employment to which members of the other
sex are not exposed.”) (quotation marks omitted). But in
opposite-sex harassment cases involving “explicit or implicit
proposals of sexual activity,” the inference of discrimination
is easier to draw because “it is reasonable to assume those
proposals would not have been made to someone of the
same sex.” Id. The same does not hold true for same-sex
harassment cases absent some evidence that the harasser
No. 13-3788 7
was homosexual. Id.; see also Hamm v. Weyauwega Milk Prods.,
Inc., 332 F.3d 1058, 1062 (7th Cir. 2003) (“Therefore, in same-
sex harassment cases, the central question is whether the
harassment occurred ‘because of the plaintiff’s sex.’”).
In Oncale the Supreme Court offered two other examples
of conduct that might support an inference of discrimination
on the basis of sex in the context of a same-sex harassment
claim. The first is when a harasser uses “such sex-specific
and derogatory terms” as to make it clear that he “is moti-
vated by a general hostility to the presence of [members of
the same sex] in the workplace.” Oncale, 523 U.S. at 80. The
second is when the plaintiff offers “direct comparative
evidence about how the alleged harasser treated members of
both sexes in a mixed-sex workplace.” Id. at 80–81. We’ve
noted in the past that there’s no reason to think these exam-
ples are exhaustive. Shepherd v. Slater Steels Corp., 168 F.3d
998, 1009 (7th Cir. 1999). “What matters … is not whether the
facts … correspond exactly to any of the three examples the
Supreme Court has identified, but whether a reasonable
factfinder could infer from those facts that [the plaintiff] was
harassed ‘because of’ his sex.” Id.
Lord argues that the judge went astray in his case by re-
quiring his same-sex harassment claim to “fit neatly” into
one of the three scenarios that Oncale describes. That argu-
ment overlooks a more fundamental shortcoming: There is
no evidence from which a trier of fact could infer that he was
harassed because of his sex. Nothing suggests that Reimer
was homosexual, and Reimer’s behavior was not so explicit
or patently indicative of sexual arousal that a trier of fact
could reasonably draw that conclusion. Cf. id. at 1009–10.
And neither the audio-bug joke nor Reimer’s conduct reflect
8 No. 13-3788
a general hostility to the presence of men in the workplace:
Lord points to no facts suggesting that only male employees
at High Voltage were the objects of this sort of teasing.
Instead, Lord relies entirely on the fact that the audio-
bug joke and Reimer’s conduct had sexual overtones. But the
Supreme Court has said that’s not enough. See Oncale,
523 U.S. at 80 (“We have never held that workplace harass-
ment, even harassment between men and women, is auto-
matically discrimination because of sex merely because the
words used have sexual content or connotations.”). “Sexual
horseplay differs from sex discrimination, and Title VII covers
only discriminatory conduct.” Shafer v. Kal Kan Foods, Inc.,
417 F.3d 663, 666 (7th Cir. 2005). Absent some evidence of
the latter, the former is insufficient to support a Title VII
claim. Id.; Orton-Bell, 759 F.3d at 775; see also Johnson v.
Hondo, Inc., 125 F.3d 408, 412–13 (7th Cir. 1997). Because no
reasonable jury could conclude that Lord was targeted for
harassment because of his sex, summary judgment for High
Voltage was appropriate.
B. Retaliation
Title VII also prohibits retaliation against employees who
engage in statutorily protected activity by opposing an
unlawful employment practice or participating in the inves-
tigation of one. 42 U.S.C. § 2000e-3(a); see also Hamner v.
St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 704
(7th Cir. 2000). A retaliation claim requires proof that the
plaintiff suffered an adverse employment action because of
his statutorily protected activity; in other words, the plaintiff
must prove that he engaged in protected activity and suf-
fered an adverse employment action, and that there is a
No. 13-3788 9
causal link between the two. Castro v. DeVry Univ., Inc.,
786 F.3d 559, 564 (7th Cir. 2015).
Lord contends that High Voltage fired him because he
complained to the human-resources department about
Reimer’s conduct and the audio-bug joke. The judge con-
cluded that Lord’s complaints about his coworkers did not
amount to protected activity because they did not concern
the type of conduct that Title VII prohibits. We agree. We
also conclude that Lord has failed to produce evidence of
causation.
To the first point, a retaliation claim isn’t doomed simply
because the complained-of conduct was not in fact an un-
lawful employment practice; rather, the plaintiff must have
“a sincere and reasonable belief that he is opposing an unlaw-
ful practice.” Hamner, 224 F.3d at 706–07 (emphasis added).
“The objective reasonableness of the [plaintiff’s] belief is not
assessed by examining whether the conduct was persistent
or severe enough to be unlawful, but merely whether it falls
into the category of conduct prohibited by the statute.”
Magyar v. St. Joseph Reg’l Med. Ctr., 544 F.3d 766, 771 (7th Cir.
2008). That determination requires us to ask whether the
complained-of conduct entailed a motive that Title VII
prohibits. See id.; Hamm, 332 F.3d at 1066; Spearman v. Ford
Motor Corp., 231 F.3d 1080, 1086 n.5 (7th Cir. 2000); Hamner,
224 F.3d at 707.
As we’ve already explained, although Lord’s complaints
concerned workplace banter and conduct that had sexual
overtones, no evidence suggests that he was harassed be-
cause of his sex. Without evidence of a prohibited motive,
Lord’s belief that he was complaining about sexual harass-
ment, though perhaps sincere, was objectively unreasonable.
10 No. 13-3788
Hamner, 224 F.3d at 707–08. Accordingly, Lord’s retaliation
claim fails for lack of evidence that he engaged in protected
activity.
But even if we assume that Lord’s complaints about
workplace harassment were protected activity, he has not
shown that he was fired because of those complaints. A
retaliation claim requires proof of causation, which in this
context means but-for causation. Univ. of Tex. Sw. Med. Ctr. v.
Nassar, 133 S. Ct. 2517, 2534 (2013); see also Hobgood v. Ill.
Gaming Bd., 731 F.3d 635, 643 (7th Cir. 2013). The parties
discuss the “direct” and “indirect” evidence of causation and
debate whether the record demonstrates a “convincing
mosaic” establishing retaliatory discharge, but we have
recently jettisoned that approach in favor of a more straight-
forward inquiry: Does the record contain sufficient evidence
to permit a reasonable fact finder to conclude that retaliatory
motive caused the discharge? Ortiz v. Werner Enters., Inc.,
No. 15-2574, 2016 WL 4411434, at *4 (7th Cir. Aug. 19, 2016)
(“Th[e] legal standard … is simply whether the evidence
would permit a reasonable factfinder to conclude that the
plaintiff’s race, ethnicity, sex, religion, or other proscribed
factor caused the discharge or other adverse employment
action.”).
Lord relies entirely on evidence of suspicious timing. He
was fired within two days of his complaint about Reimer’s
conduct and only one day after telling Kent that he was
“close to filing a complaint with the [Illinois Department of
Human Resources] and EEOC.” Suspicious timing by itself
will rarely support an inference of retaliation, but it may do
so “[w]hen an adverse employment action follows on the
close heels of protected expression and the plaintiff can
No. 13-3788 11
show the person who decided to impose the adverse action
knew of the protected conduct.” Culver, 416 F.3d at 546
(quoting Lalvani v. Cook County, 269 F.3d 785, 790 (7th Cir.
2001)). The record supports drawing the inference here.
Bohlen and Kopecky fired Lord two days after he talked to
Bohlen about Reimer. Kopecky was aware of Lord’s com-
plaint because Bohlen immediately forwarded it to him.
Our inquiry doesn’t end there, however. When confront-
ed with circumstantial evidence of a retaliatory motive, the
employer may show that the employee would have been
fired even absent his complaints about harassment. See
Culver, 416 F.3d at 547–48; see also Argyropoulos v. City of
Alton, 539 F.3d 724, 736 n.6 (7th Cir. 2008); Stone v. City of
Indianapolis Pub. Utils. Div., 281 F.3d 640, 643 (7th Cir. 2002);
McClendon v. Ind. Sugars, Inc., 108 F.3d 789, 797–99 (7th Cir.
1997). If High Voltage can make that showing, then the
alleged “retaliatory motive, even if unchallenged, was not a
but-for cause of [Lord’s] harm.” Stone, 281 F.3d at 643. Of
course, an employer’s proffered justifications are always
susceptible to attack, and Lord can avoid summary judg-
ment if a material factual dispute exists on the question of
pretext. Argyropoulos, 539 F.3d at 736. “Summary judgment
is appropriate only if a reasonable fact finder would be
compelled to believe [High Voltage’s] explanation.” Culver,
416 F.3d at 547.
As we’ve noted, the relevant personnel records list sever-
al nonretaliatory reasons for High Voltage’s decision to fire
Lord. These include his failure to immediately report allega-
tions of harassment to Bohlen and Kent, as they had in-
structed him to do; his fixation on his coworkers’ “perfor-
mance, timeliness, and conduct”; and insubordination (the
12 No. 13-3788
testy email in response to Kent’s mistaken disciplinary
write-up).
Lord has no evidence that calls these reasons into ques-
tion. “Pretext involves more than just faulty reasoning or
mistaken judgment on the part of the employer; it is [a] ‘lie,
specifically a phony reason for some action.’” Argyropoulos,
539 F.3d at 736 (quoting Sublett v. John Wiley & Sons, Inc.,
463 F.3d 731, 737 (7th Cir. 2006)). We have repeatedly em-
phasized that when “assessing a plaintiff’s claim that an
employer’s explanation is pretextual, we do not … second-
guess[] an employer’s facially legitimate business decisions.”
Id. (internal quotation marks omitted). An employer’s rea-
sons for firing an employee can be “foolish or trivial or even
baseless,’’ as long as they are “honestly believed.” Culver,
416 F.3d at 547 (quoting Hartley v. Wis. Bell, Inc., 124 F.3d
887, 890 (7th Cir. 1997)).
Rather than casting doubt on the sincerity of High Volt-
age’s reasons for firing him, Lord merely quibbles with the
wisdom of his employer’s decision. For example, he chal-
lenges Bohlen’s determination that he waited too long to
notify human resources about Reimer’s conduct. He notes
that he reported the Reimer incidents just 12 days after they
began and only 2 days after the latest one. He does not
dispute, however, that Bohlen and Kopecky had instructed
him to report any such incidents immediately and that he
failed to follow these instructions. Likewise Lord questions
the company’s judgment that it was “inappropriate” for him
to respond to the mistaken disciplinary write-up by threat-
ening to file a lawsuit rather than first trying to resolve the
misunderstanding. Whether this particular justification was
wise or warranted is beside the point. What matters is
No. 13-3788 13
whether Bohlen and Kopecky honestly believed it. Lord has
no evidence that they did not.
Finally, Lord argues that a reasonable jury could draw an
inference of pretext from the company’s shifting explanation
of its reasons for firing him. “As a general rule, a reasonable
trier of fact can infer pretext from an employer’s shifting or
inconsistent explanations for the challenged employment
decision.” Castro, 786 F.3d at 577. The problem for Lord is
that the record doesn’t support his contention that High
Voltage’s explanation has shifted. He makes much of the fact
that High Voltage fired him for several different reasons.
That’s not indicative of pretext. Employment decisions often
rest on multiple grounds. See id.
Lord also points to minor semantic variations between
Bohlen’s deposition testimony and the written personnel
report documenting the reasons for the decision to fire him.
In substance, however, Bohlen’s testimony is entirely con-
sistent with the written report: Both indicate that Lord was
fired for insubordination and his failure to immediately
bring allegations of harassment directly to his manager or
human resources. See Schuster v. Lucent Techs., Inc., 327 F.3d
569, 577 (7th Cir. 2003) (emphasizing that the employer’s
explanation “must actually be shifting and inconsistent to
permit an inference of mendacity”); Rand v. CF Indus., Inc.,
42 F.3d 1139, 1146 (7th Cir. 1994) (holding that there was no
evidence of pretext where the employer’s proffered reasons
for firing the plaintiff were consistent “in substance if not
word choice”).
In short, the record contains no evidence from which a
reasonable jury could infer that High Voltage’s reasons for
firing Lord were pretextual. So even assuming that Lord’s
14 No. 13-3788
complaints about workplace harassment were protected
activity, he is unable to establish but-for causation. The
retaliation claim fails as a matter of law.
AFFIRMED.
No. 13‐3788 15
ROVNER, Circuit Judge, concurring in part, dissenting in
part. I concur in the judgment as to the decision affirming
the grant of summary judgment on Lord’s claim of discrimi‐
nation under Title VII because I agree that he has failed to
meet his burden as to that claim.
I respectfully dissent as to the grant of summary judg‐
ment on the retaliation claim. The majority opinion holds
that even if an employer discharges an employee for failing
to report harassment, that employee cannot allege retaliation
if the employer required him to report such instances imme‐
diately and he reported it days later. That holding will en‐
courage employers to place unreasonable time and manner
restrictions on the reporting of harassment. If an employee
fails to adhere to those employer‐imposed restrictions, the
employer can then terminate that employee for reporting
that harassment with no recourse for that employee to Title
VII retaliation protections. It places handcuffs on Title VII
retaliation claims, with the employers holding the keys.
As the majority recognizes, Lord could survive summary
judgment by demonstrating that he engaged in protected
employment activity, that he suffered an adverse action, and
that the protected activity was the cause of that adverse em‐
ployment action. Castro v. DeVry Univ., Inc., 786 F.3d 559, 564
(7th Cir. 2015). At all times in such a case, the fundamental
question remains: could a reasonable trier of fact infer that
Lord would have kept his job if he had not reported the ha‐
rassment? Id.; Ortiz v. Werner Enterprises, Inc., ___ F.3d ___,
2016 WL 4411434, at *3 (7th Cir. Aug. 19, 2016). The difficult
link in many cases is the establishment of a causal relation‐
16 No. 13‐3788
ship between the reporting of the harassment and the termi‐
nation of employment. Here, we have no such obstacle. The
defendants have conceded that Lord was terminated
because he complained of harassment. Specifically, the de‐
fendants assert that Lord was terminated for “insubordina‐
tion for ‘his failure to follow through on the directives given
to him in his performance goals report’ including the direc‐
tives to raise his complaints [of harassment] immediately.”
Defendant‐Appellee Brief at 22. Therefore, Lord was termi‐
nated based on his report of the harassment to his employer.
In a typical case, that would be the end of the analysis. The
plaintiff would have presented evidence of a retaliation
claim sufficient to survive summary judgment.
But the defendants argue that the termination does not
constitute retaliation because Lord failed to comply with the
directive to report harassment immediately and the failure to
do so constituted insubordination. The majority upholds
summary judgment on two grounds: first, that Lord’s com‐
plaints were not about protected activity; and second, that
even assuming Lord’s complaints about workplace harass‐
ment were protected activity, the employer established that
Lord was fired for a non‐retaliatory reason in that he failed
to immediately report allegations of harassment to Bohlen and
Kent as he was instructed to do.
I.
The latter holding, that an employer could terminate an
employee for reporting harassment two days after it
occurred rather than immediately, would allow employers
to avoid the retaliation protections of Title VII by imposing
No. 13‐3788 17
restrictive reporting requirements internally. As the majority
points out, Lord reported the Reimer incidents just 12 days
after they began and two days after the latest incident with
Reimer. But Bohlen and Kopecky had instructed him to re‐
port any such incidents immediately and he had failed to do
so. Therefore, by imposing restrictions on the time and man‐
ner that an employee must report allegations of harassment,
the employer was able to characterize the report of harass‐
ment as a violation of its rules and terminate the employee
on that basis. The majority portrays that as a legitimate busi‐
ness decision and a non‐retaliatory reason for the firing, but
that characterization represents a profound and dangerous
step that would severely undermine the protections of Title
VII.
The majority’s holding is problematic on a number of
levels. By allowing an employer to utilize restrictions of the
timing and manner of reporting harassment in order to
avoid a claim of retaliation, the holding undermines Title VII
and fundamentally restricts the ability of an employee to
report harassment. The employer in this case required “im‐
mediate” reporting, as is clear in its brief to this court in
which it states: “Plaintiff rhetorically ponders without any
context, ‘What is considered timely?’ In this matter, the an‐
swer is ‘immediately.’” Defendant‐Appellee Brief at 57. Ac‐
cordingly, under the employer’s policy, if an employee fails
to report harassment at the time in which it occurs, delaying
even for a day, then the act of reporting that harassment can
be a basis for termination that is not redressible under Title
VII. Such a rule would have a profound, chilling effect on
the reporting of harassment. Although the employer justifies
18 No. 13‐3788
the provision by stating that Lord had a pattern of delaying
reporting and using the claim of harassment at opportune
times, the holding is not limited to the facts in this case. It
would allow employers to include in every employee hand‐
book restrictions on the time and manner in which an em‐
ployee can report harassment, thus providing a “free pass”
in any subsequent retaliation claim if the employee fails to
report the harassment in accordance with those employer‐
initiated rules. It will pretermit the protection from retalia‐
tion in Title VII.
Such a restrictive timeliness requirement is not present in
Title VII, which allows an employee to file a charge within
180 to 300 days after the last incident of harassment. See 42
USC §2000e‐5(e)(1). The employer’s ad hoc imposition of a
restrictive timeliness provision will now preclude Title VII
relief for retaliation for all but the most immediate of com‐
plaints. Moreover, the adverse impact of such a holding will
be more pronounced in the context of harassment allegations
due to the nature of such discriminatory conduct. Harass‐
ment in the workplace is often traumatic, embarrassing, off‐
putting, and/or ambiguous. It is not at all unusual for em‐
ployees to wait to report incidents for reasons that are too
numerous to exhaustively list but are wide‐ranging, includ‐
ing a desire to ignore it and hope it is not repeated, a reluc‐
tance to rock the boat and risk alienating co‐workers or
bosses, a fear of adverse consequences that are difficult to
prove in court but nonetheless real to the employee, a failure
to appreciate the impropriety of the behavior and the right to
complain, or just a reaction of denial and a reluctance to face
a difficult situation. See, e.g., Magyar v. Saint Joseph Regʹl
No. 13‐3788 19
Med. Ctr., 544 F.3d 766, 768 (7th Cir. 2008) (in discussing why
a complaint was not made immediately by a complainant,
“[s]he explained that ‘I was hoping it was just a one‐time oc‐
currence, and I didnʹt—I didnʹt really—that was my first real
job and I really didnʹt know what to do. And I had to check
to see, you know, like what are the exact standards in the
work force. And then I knew once he did that the second
time that I had to talk to her because it was not a one‐time
occurrence.’”) Traumatized employees routinely take at least
some time to come to terms with the harassment and garner
the courage to report it. And employees often face pressure
to “get along” and not report complaints. Here, Lord faced
such pressure. When Lord was given the performance goal
of immediately notifying Chad Kent if any harassment oc‐
curred, he was also reminded at that time that the company
was a place filled with “creative individuals” and that “hu‐
mor is a common method of communication within the com‐
pany.” He was told that if someone crossed the line he
should tell them to stop and if they continued he should in‐
form Kent immediately. He understood the point of that
conversation to be that he needed to learn how to take a joke.
When he subsequently went to Kent the day after the first
incident with Reimer, Kent told him that he was concerning
himself with others too much and that he did not want to
hear anything about Reimer. Lord’s experience is similar to
that faced by countless harassed employees, who are either
explicitly cautioned not to report or who encounter implicit
pressure to conform to the culture of the workplace which
includes tolerance for such behavior. With a policy requiring
immediate reporting, those employees who fail to recognize
20 No. 13‐3788
and report the harassment immediately will face a dilemma
—report it nonetheless and possibly face termination with
no recourse to Title VII retaliation protections, or not report
it at all and possibly face continued harassment. The protec‐
tion against retaliation for the reporting will have dis‐
appeared for those employees a day after the harassment.
In addition, the nature of such violations also renders this
type of policy particularly pernicious. In order for harass‐
ment to be actionable as a hostile work environment, it must
be severe or pervasive. Boss v. Castro, 816 F.3d 910, 920 (7th
Cir. 2016); Lambert v. Peri Formworks Sys., Inc., 723 F.3d 863,
866 (7th Cir. 2013). The pervasive nature of harassment often
becomes apparent only over time, as incidents that appeared
to be minor or isolated are repeated or escalate; yet an em‐
ployee who identifies such a pattern over time, will be fear‐
ful of reporting the earlier incidents because the delayed re‐
porting of those incidents will itself be a dischargeable of‐
fense. The policy upheld by the majority today as a legiti‐
mate, non‐retaliatory business decision would effectively
eliminate retaliation claims where harassment occurs over a
period of time and is not recognized as such with the first
instance of harassment. By failing to report that first incident
of harassment immediately, the employee would be in viola‐
tion of the policy and could be fired with impunity for that
infraction if the employee later chose to report that pattern of
adverse conduct. It provides the employer with an end‐run
around the Title VII retaliation provision. This result would
severely undermine the goal of Title VII to encourage report‐
ing of discrimination and eradicate such conduct from the
workplace.
No. 13‐3788 21
Moreover, such a ruling is unnecessary to protect any
legitimate interests of employers. The timing of the
employee’s complaints of harassment has always been rele‐
vant in Title VII litigation in analyzing the appropriateness
of the employer’s response. The caselaw is clear that an em‐
ployer faced with allegations that an employee was harassed
may assert that the employee failed to timely report the ha‐
rassment and that the employer responded promptly when
informed. See, e.g., Lambert, 723 F.3d at 867 (“If the employer
has established a set of procedures for reporting complaints
about harassment, the complainant ordinarily should follow
that policy in order to provide notice sufficient for the em‐
ployer to be held responsible … .”). The majority’s decision,
however, would impose a much more grave consequence to
the employee’s failure to report harassment promptly
enough. Instead of considering such timing as relevant in
examining the viability of the claim of harassment, the tim‐
ing of the reporting can now be the basis for rejecting a retal‐
iation claim outright where the employer concededly dis‐
charges the employee for reporting the harassment. An em‐
ployer seeking to limit its liability for retaliation need only
ensure that the employees are subjected to time and manner
restrictions on their reporting of claims of discrimination.
Because such an interpretation is inconsistent with Title VII
and subverts the employee’s ability to report harassment, we
should reject it. Flowers v. Columbia College Chicago, 397 F.3d
532, 534 (7th Cir. 2005) (“[i]f a gaffe on a technical issue al‐
lowed the employer to show the worker the door, the anti‐
retaliation provision would be diluted to the point of use‐
22 No. 13‐3788
lessness.”) Lord should be allowed to proceed on the retalia‐
tion claim.
II.
The alternative basis for rejecting the retaliation claim is
also problematic. The majority opinion holds that Lord’s
complaints about his co‐workers did not amount to
protected activity because they did not concern the type of
conduct that Title VII prohibits. The majority states that:
although Lord’s complaints concerned work‐
place banter and conduct that had sexual
overtones, no evidence suggests that he was
harassed because of his sex … [and] [w]ithout
evidence of a prohibited motive, Lord’s belief
that he was complaining about sexual
harassment, though perhaps sincere, was ob‐
jectively unreasonable. Hamner, 224 F.3d at
707‐08.
Majority Op. at 9‐10. Although the majority relies on Hamner
v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 707‐
08 (7th Cir. 2000), that decision does not command the major‐
ity’s conclusion. We recognized in Hamner that, although an
employee must possess a subjective belief that he opposed
an unlawful employment practice and that belief must be
objectively reasonable, that employee may succeed on a re‐
taliation claim even if the challenged practice does not actu‐
ally violate Title VII, as where the degree of discrimination
did not rise to the level in which it affected the terms and
conditions of employment. Id. at 706‐07. Objective reason‐
ableness means only that the complaint must involve dis‐
No. 13‐3788 23
crimination that is prohibited by Title VII. Id. at 707; Magyar
v. Saint Joseph Reg’l Med. Ctr., 544 F.3d 766, 771 (7th Cir.
2008)(“[t]he objective reasonableness of the belief is not
assessed by examining whether the conduct was persistent
or severe enough to be unlawful, but merely whether it falls
into the category of conduct prohibited by the statute.”)
Hamner claimed discrimination based on his homosexuality,
but because sexual orientation is not yet a classification pro‐
tected under Title VII, his sincere belief that he opposed an
unlawful practice could not be objectively reasonable.
Hamner, 224 F.3d at 707. Lord faces no such legal obstacle to
his claim. There is no allegation that the harassment in this
case was based on Lord’s sexual orientation at all, and no
allegation that he was targeted because he was homosexual,
heterosexual or bisexual. The allegations here allow the in‐
ference that Lord was subjected to unwanted grabbing be‐
cause Reimer was attracted to him as a man or that the
harasser believed that such touching would be particularly
discomfiting to him as a male and would not have been pur‐
sued if he were female, not that the actions were based on
Lord’s own sexual orientation. That stands in contrast to the
allegations in Hamner, in which Hamner alleged discrimina‐
tion against him because he is gay and based on the
harasser’s “homophobia.”
We held in Hamner that the allegations “must concern
‘the type of activity that, under some circumstances, sup‐
ports a charge of sexual harassment.’” Id. at 707, quoting
Holland v. Jefferson Nat. Life Ins. Co., 883 F.2d 1307, 1315 (7th
Cir. 1989). That is all that is needed to satisfy the objective
reasonableness component. In cases in which that compo‐
24 No. 13‐3788
nent has been lacking, such as Hamner, the allegations them‐
selves precluded coverage under Title VII, whether because
the claim was frivolous in that the allegations did not even
suggest discrimination, the allegations were defamatory or
malicious, or, as discussed, the allegations regarded a cate‐
gory such as sexual orientation that is not yet protected un‐
der Title VII. See, e.g. Hatmaker v. Memorial Med. Ctr, 619 F.3d
741, 746 (7th Cir. 2010) (“[n]one of the statements that
Hatmaker [the plaintiff] made to the investigator ... such as a
complaint about Stafford’s reference to his divorces or to the
fact that his boss let him use the boss’s bathroom, was sug‐
gestive of sex discrimination”); Mattson v. Caterpillar, Inc.,
359 F.3d 885, 892 (7th Cir. 2004) (allegations made in bad
faith motivated by an expressed desire to get Cone fired, and
alleging only that one of Cone’s breasts touched his arm dur‐
ing a conversation and one instance in which Cone reached
around the plaintiff to get a clipboard but did not touch him,
held to be objectively and subjectively unreasonable).
The “type of activity” opposed here is well‐established as
a type of activity which supports a charge of sexual harass‐
ment. Lord alleged the following incidents:
– On July 18, 2007, Reimer poked Lord in the
buttocks as he was walking by Lord who was
putting coins in a vending machine; Lord told
Reimer that it “was extremely gay” and told
him not to do it again, and Reimer retorted that
Lord “liked it;”
– On July 23, 2007, Reimer walked by Lord,
made a comment about bending over, and then
No. 13‐3788 25
slapped Lord’s right buttock as he was passing
him; a female co‐worker who was present at
the time looked surprised; Lord stated “What
the hell, Nick?;” Lord chastised Reimer who
responded by laughing and telling Lord that
Lord liked it;
– Two days later, Reimer walked up behind
Lord and slapped Lord’s buttocks very hard;
Lord again chastised Reimer but Reimer
laughed it off;
– On July 27, 2007, while Lord was writing on a
white board, Reimer grabbed Lord in between
his legs and buttocks, leaving Lord shocked
and angry; Lord again told Reimer to stop and
asked what he would do if a co‐worker com‐
plained of his conduct to Human Resources;
Reimer replied that he would kill that person.
It is well‐established that “unwanted physical conduct
falls on the more severe side for purposes of sexual harass‐
ment.” Magyar, 544 F.3d at 771. In evaluating the severity of
harassment:
‘[o]n one side lie sexual assaults; other physical
contact, whether amorous or hostile, for which
there is no consent express or implied; unin‐
vited sexual solicitations; intimidating words
or acts; obscene language or gestures; porno‐
graphic pictures. On the other side lies the oc‐
casional vulgar banter, tinged with sexual in‐
nuendo, of coarse or boorish workers ... .’
26 No. 13‐3788
Patton v. Keystone RV Co., 455 F.3d 812, 816 (7th Cir. 2006),
quoting Baskerville v. Culligan Intl. Co., 50 F.3d 428, 430 (7th
Cir. 1995); Magyar, 544 F.3d at 772.
Thus, the type of conduct alleged here falls well within
the range of conduct prohibited under Title VII, and in fact is
on the more serious side of the spectrum. That the harasser
was male rather than female does not remove the
harassment from ”the type of activity that, under some cir‐
cumstances, supports a charge of sexual harassment.” The
Supreme Court, in Oncale v. Sundowner Offshore Services, Inc.,
523 U.S. 75, 79 (1998), explicitly held that same‐sex harass‐
ment claims are not excluded from the coverage of Title VII.
As the majority notes, the Oncale Court recognized multiple
ways in which same‐sex harassment could be actionable,
such as: where the plaintiff could demonstrate that the
harasser was homosexual and therefore it would be reason‐
able to assume the implicit proposals of sexual activity
would not be made to someone of the other sex; where the
harasser was motivated by general hostility to persons of the
plaintiff’s gender in the workplace; or where the harasser
treated members of both sexes differently in the workplace.
As the Court noted, “’[t]he critical issue, Title VII’s text indi‐
cates, is whether members of one sex are exposed to disad‐
vantageous terms or conditions of employment to which
members of the other sex are not exposed.’” Oncale, 523 U.S.
at 80, quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 25
(1993)(Ginsburg, J., concurring). Therefore, the unwanted
sexual contact by a person of the same gender is the type of
activity that, under some circumstances, may support a Title
VII claim. In fact, the Oncale Court acknowledged that con‐
No. 13‐3788 27
duct such as occurred here could constitute harassment in an
office environment, noting that “[a] professional football
player’s working environment is not severely or pervasively
abusive, for example, if the coach smacks him on the but‐
tocks as he heads onto the field—even if the same behavior
would reasonably be experienced as abusive by the coach’s
secretary (male or female) back at the office.” Id. at 81.
Nor is protection lost merely because an employee does
not succeed on the merits of his charge or because he fails to
draft a complaint that states an effective legal claim. Mattson,
359 F.3d at 892; Fine v. Ryan Intl. Airlines, 305 F.3d 746, 752
(7th Cir. 2002). It is, as we said, a “low bar” for receiving Ti‐
tle VII protection, and properly so. Mattson, 359 F.3d at 892.
We have stated the standard numerous times, which is that
“[i]t is improper to retaliate against anyone for claiming a
violation of Title VII unless that claim is ‘completely ground‐
less.’” Fine, 305 F.3d at 752, quoting McDonnell v. Cisneros, 84
F.3d 256, 259 (7th Cir. 1996); Mattson, 359 F.3d at 891 (“the
claims must not be utterly baseless”); Dey v. Colt Constr. &
Dev. Co., 28 F.3d 1446, 1458 (7th Cir. 1994)(claims must not
be utterly baseless). “[A] groundless claim is one resting on
facts that no reasonable person possibly could have
construed as a case of discrimination.” Fine, 305 F.3d at 752.
As we recognized in Fine, it is not unusual for a plaintiff to
make claims that appear legitimate on the surface, but
which, after discovery and a fuller inquiry, ultimately turn
out to lack merit. Id. Title VII precludes retaliation against a
plaintiff for making such a “grounded yet unsuccessful,
complaint.” Id. The question, then, is whether we can con‐
clude as a matter of law that Lord had no grounds for believ‐
28 No. 13‐3788
ing that the actions violated Title VII. Id.
The allegations by Lord easily surmount that low bar. In
asserting that Lord’s belief that he was complaining about
sexual harassment was objectively unreasonable, the major‐
ity pointed to the absence of evidence of a prohibited mo‐
tive. Yet that veers into litigating the viability of his harass‐
ment claim, rather than his retaliation claim. Lord alleges
unwanted touching, that was repeated, that was sexual in
nature, accompanied by sexually‐charged comments. The
actions and comments themselves raise the possibility that
the conduct was motivated by sexual attraction based on his
gender, and that is all that is needed.
In Fine, we cautioned in particular against confusing the
merits of the harassment claim with the merits of the retalia‐
tion claim. We rejected the contention that a plaintiff must
produce legally admissible objective evidence that he suf‐
fered unlawful discrimination to prevail. Fine, 305 F.3d at
752‐53. Such a standard “would require every retaliation
trial to include a mini‐trial on the underlying discrimination,
a standard … our circuit rejects.” Id. at 753. The inquiry into
whether Lord can establish a prohibited motive for the ha‐
rassing conduct would enmesh us into such a mini‐
trial—particularly in cases in which same sex harassment is
alleged. It bears repeating that the allegations are protected
activity if they concern “‘the type of activity that, under
some circumstances, supports a charge of sexual
harassment.’” Hamner, 224 F.3d at 707, quoting Holland, 883
F.2d at 1315. Oncale tells us that it is. Rather than hold that
under some circum‐stances—such as the ones identified in
No. 13‐3788 29
Oncale—Lord could prove that the conduct was sexual ha‐
rassment, the majority opinion rejects the claim because he
has failed to provide evidence of those circumstances. Lord
does not need to establish that he will succeed in that harass‐
ment action. Absent evidence that would establish a motive
that takes the action out of Title VII’s protections, such as a
motivation based on the plaintiff’s sexual orientation as in
Hamner, there is no basis to determine that the repeated un‐
wanted grabbing of intimate areas of the male body cannot
fall within the protections of Title VII. Lord had to demon‐
strate only that his belief that he was complaining about un‐
lawful discrimination was not “completely groundless.”
Leitgen v. Franciscan Skemp Healthcare, Inc., 630 F.3d 668, 674
(7th Cir. 2011). For our court to hold that a person subjected
to such conduct is completely groundless in believing that it
constitutes sexual harassment would create an extra ordi‐
nary burden. We should reject the imposition of that higher
bar, not only because of the corresponding mini‐trials that
will accompany it, but because it will fundamentally under‐
mine the Title VII protections against retaliation.
The two holdings in this appeal are even more troubling
in conjunction with each other. By imposing the requirement
that an employee present evidence of the motivation of the
harasser in order to proceed with a retaliation claim, but up‐
holding that the failure to complain immediately may be
grounds for termination, the court eviscerates the protection
against retaliation in Title VII. The employee must report
harassment immediately in order to retain the protection
against retaliatory termination, but if the employee reports
harassing conduct without first obtaining evidence of the
30 No. 13‐3788
harasser’s motivation—evidence that will often be difficult
to obtain—then the protection against retaliation is lost
nonetheless because the complaint will not be held to consti‐
tute protected activity. Those competing requirements will
swallow the protection against retaliation for countless
plaintiffs.
For the above reasons, I respectfully dissent from the por‐
tion of the decision affirming the grant of summary judg‐
ment as to the claim of retaliation, and concur in the judg‐
ment affirming the grant of summary judgment as to the
discrimination claim.