                              In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 05-1310
YORLI P. HUFF,
                                                  Plaintiff-Appellant,
                                  v.

MICHAEL F. SHEAHAN,
in his official capacity as Sheriff
of Cook County,
                                                 Defendant-Appellee.
                          ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
              No. 97 C 4568—Joan B. Gottschall, Judge.
                          ____________
      ARGUED DECEMBER 1, 2006—DECIDED JULY 16, 2007
                          ____________


 Before EASTERBROOK, Chief Judge, and RIPPLE and
MANION, Circuit Judges.
  RIPPLE, Circuit Judge. Yorli Huff brought this action for
damages for race and sex discrimination that she claimed
to have suffered during her employment with the Sheriff’s
Department of Cook County, Illinois. She named various
defendants in their individual and personal capacities. A
jury trial resulted in a verdict in favor of all the defendants
on all claims. The district court later denied a Rule 59(e)
motion for a new trial and a renewed motion for judg-
2                                                 No. 05-1310

ment as a matter of law. Ms. Huff timely appealed the
denial of this motion and the underlying judgment against
her. She seeks review only of her Title VII claim against her
former employer, Cook County Sheriff Michael Sheahan
(“the Sheriff”). For the reasons stated in this opinion,
we reverse the judgment of the district court and remand
for further proceedings consistent with this opinion.


                              I
                     BACKGROUND
A. Facts
  Ms. Huff was employed by the Cook County Sheriff’s
Department and was assigned to the Metropolitan Enforce-
ment Group (“MEG”), a separate, multi-jurisdictional
narcotics task force staffed by personnel of multiple law
enforcement agencies including the Sheriff’s Department.
Ms. Huff began working in MEG in 1992 and remained
there until 1997. For a period of several years, while
detailed to MEG, Ms. Huff worked under the super-
vision of Andrew Douvris and Fred Guerra, who were
also Sheriff’s Department personnel.
  Ms. Huff alleged a variety of serious claims of discrimi-
nation on the part of her supervisors at MEG: using, on a
regular basis, racial and gender epithets in reference to
her and to other African-Americans;1 providing her


1
  Some of the testimony at trial suggested that Mr. Guerra and
Mr. Douvris used the terms “nigger” and “bitch” to refer to Ms.
Huff in the workplace, along with English and Spanish variants
and combinations. Mr. Douvris apparently said that “more black
                                                 (continued...)
No. 05-1310                                                   3

with inferior equipment and assignments; frustrating her
request for a transfer to another department; harassing her
by paging her and checking on her location at all times;
denying her requests to use flex-time benefits available to
others; isolating her from other African-Americans in the
office with explicit instructions that she not socialize
with them;2 and marginalizing her to such a degree that
she eventually lost her position in the Sheriff’s Department.
Ms. Huff claims that, during this time, she documented
some of the incidents, spoke to Mr. Guerra and Mr.
Douvris about the harassment and reported the discrimina-
tion to her MEG supervisor, all to no avail. She, and several
other employees assigned to MEG, stated that the Sheriff’s
Department never informed them about proper proce-
dures for reporting harassment; she also testified that,
when she did learn of the procedures, she availed herself
of these options and made a complaint to the Sheriff’s
equal employment opportunity officer. She stated that,
after her reports of the conduct, she was further harassed
by MEG staff members, including fellow employees.


1
  (...continued)
men should beat black women,” R.388-14 at 2647; see also R.388-
9 at 1579-80, and “black women need to be kept in their place,”
R.388-10 at 1939; see also R.388-7 at 1243. Mr. Douvris also
apparently spoke in stereotypical racial slang on some occasions
when recounting things said to him by Ms. Huff. He did not
exaggerate a stereotypical linguistic feature or accent of any
other race or ethnicity when referring to an officer of that
background. See R.388-7 at 1235-39.
2
  At trial, another MEG officer testified that Mr. Douvris
separated black agents because “being black, he thought that
they would be lazy together and they wouldn’t do any work.”
R.388-2 at 202; see also R.388-5 at 877.
4                                                  No. 05-1310

  Ms. Huff also sought a transfer to another unit and,
although the Sheriff’s chief of police approved her request,
Mr. Douvris apparently blocked it. She was assigned to
desk duty, and, in August 1997, her MEG supervisors
removed her from that office; she returned to an office of
the Sheriff’s Department. She learned that the Sheriff had
no alternate assignment for her, at which point her em-
ployment with the Sheriff ended.
  Despite being subject to a distinct command structure
within MEG, all Sheriff’s Department personnel assigned
there apparently continued to be subject to the Sheriff’s
chain of command and personnel rules; notably, the Sheriff
was obligated by contract3 to determine “work-place
rules of conduct” applicable to his employees detailed to
MEG and, “if necessary, [to] institute disciplinary actions
for [his] employees.” Plaintiff’s Ex.8 at 2. Mr. Guerra and
Mr. Douvris ultimately were disciplined in Sheriff’s
Department disciplinary proceedings for their use of the
racial slurs set forth in Ms. Huff’s 1997 report. Mr. Douvris
was demoted in rank from commander to sergeant. Mr.
Guerra was removed from MEG and placed on patrol for
the Sheriff’s Department.4


3
   Although the contract is reproduced only in part in the record
on appeal, it appears to have been an intergovernmental
agreement between Cook County and the Village of Broadview
“as Implementing Agency on behalf of the Metropolitan Group
of Cook County.” Plaintiff’s Ex.8 at 5. The portions of the
short agreement included in the record define the responsibili-
ties of the parties in administering the joint program.
4
  Following an investigation and the final report of the Inspec-
tor General of the Sheriff’s Department, the Sheriff made his
                                                  (continued...)
No. 05-1310                                                     5

B. District Court Proceedings
    1. Pretrial Proceedings
  Ms. Huff brought this action in the district court for the
Northern District of Illinois. Her complaint set forth a
variety of claims, including Title VII disparate treatment
and hostile work environment harassment claims against
her employer, the Sheriff. 42 U.S.C. § 2000e et seq. It also
set forth claims under 42 U.S.C. §§ 1981 and 1983 against
the Sheriff in his official capacity and against Mr. Guerra
and Mr. Douvris in their personal capacities.5
  The parties engaged in lengthy discovery and, in 2001, all
remaining defendants moved for summary judgment. The


4
   (...continued)
own decisions regarding these intermediate levels of disciplin-
ary action. Because both officers are merit-protected employees,
the Sheriff also forwarded a formal complaint against the
officers to the Merit Protection Board, which alone had the
right to take more severe action up to and including termina-
tion. The Inspector General’s report and the Sheriff’s decision to
take disciplinary action and to seek further disciplinary action
demonstrate that the Sheriff’s Department retained certain
disciplinary authority over officers assigned to MEG such that
actions taken by officers in the course of their duties at MEG
subjected them to possible disciplinary action by the Sheriff.
Indeed, the Sheriff supported the introduction of the reports
into evidence as part of his affirmative defense, and the fact of
disciplinary action by the Sheriff was among the limited
purposes for which the district court deemed the documents
admissible. See R.388-1 at 61-68.
5
  Certain claims were dismissed on the defendants’ motion
under Rule 12(b)(6), including the § 1983 claims against the
Sheriff and Title VII claims against Mr. Guerra and Mr. Douvris.
6                                                 No. 05-1310

district court granted the motions in part and denied them
in part. First, the court granted summary judgment to all
defendants on the § 1981 claims, based on its conclusion
that Ms. Huff, as an at-will employee, could not state a
claim under § 1981. The district court also entered judg-
ment for Mr. Guerra on one of the § 1983 claims after
concluding that the record did not support the allega-
tion that he had created a hostile work environment. In
this ruling, the district court relied on the absence of
evidence that the slurs admittedly used by Mr. Guerra ever
had been used in a language understandable to Ms. Huff
and in her presence.6 However, the disparate treatment
claims, alleging that Mr. Guerra denied her the opportunity
to act as group supervisor, denied flex-time, paged her
excessively, denied leads on cases, evaluated her unfairly
and restricted her break-time reading materials, were
allowed to stand.
  As to Mr. Douvris, the court granted summary judg-
ment on Ms. Huff’s § 1983 disparate treatment claim that
alleged that he had assigned Ms. Huff an inferior vehicle
as time-barred. It denied summary judgment on her
claim that he wrongfully had denied Ms. Huff’s requested
transfer and that he had ordered her not to socialize
with J.D. Lewis, the unit’s other African-American staff
member. The court also denied summary judgment on
Ms. Huff’s § 1983 hostile work environment claim against
Mr. Douvris. Finally, the district court held that Ms. Huff
had created a genuine factual issue as to the Sheriff’s



6
  Mr. Guerra apparently used racial slurs in Spanish, which Ms.
Huff did not understand. See R.143 at 14; see also R.388-16 at
3271-73.
No. 05-1310                                                 7

liability under Title VII for any harassment Ms. Huff had
suffered at MEG.


  2. The Jury Instructions
   The parties proceeded to trial on the remaining § 1983
claims against the individual defendants, including the
hostile work environment claim against Mr. Douvris and
the Title VII hostile work environment claim against the
Sheriff. The jury instruction conference was protracted
and is difficult to follow on the record before us. The Title
VII instruction that is the subject of this appeal was a
particular source of conflict between the parties. The
parties submitted multiple rounds of proposed Title VII
instructions, some of which appear only by transcript
reference in the record on appeal. For present purposes,
it will suffice to note that Ms. Huff consistently main-
tained an objection to the Sheriff’s proposed Title VII
harassment jury instruction. Specifically, Ms. Huff insisted
that, before the Ellerth/Faragher affirmative defense could be
presented to the jury, the jury first had to be asked whether
Ms. Huff had proved that the harassment she suffered
culminated in a tangible employment action. See Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v.
City of Boca Raton, 524 U.S. 775, 807-08 (1998). Ms. Huff
contended that, if she had proved a tangible employment
action, the Ellerth/Faragher defense was not available to the
Sheriff and that a proper instruction would so indicate.
  At the Sheriff’s urging, the district court rejected Ms.
Huff’s repeated contention that the absence of a tangible
employment action was a necessary precursor to the
jury’s consideration of the Sheriff’s affirmative defense. See
R.388-13 at 2324. The court reasoned that hostile work
environment claims essentially state that, because of the
8                                                  No. 05-1310

harassment, employment conditions became so unbear-
able that they were equivalent to a tangible action. The
question of whether the work environment resulted in a
tangible action, it determined, unnecessarily muddled
the burdens in a hostile work environment claim with
claims that allege an independently actionable adverse
employment action. Instead, the court concluded that the
availability of an instruction on Ellerth/Faragher turned only
on the supervisory level of the harasser, and whether,
because that person was so high within the employer’s
structure, the victim effectively would have had no re-
course. The court concluded—indeed, made a determina-
tion of law—that Mr. Douvris and Mr. Guerra were not
such high-level employees, and, therefore, the affirmative
defense was available to the Sheriff.7 Id. at 2324. Ms. Huff’s
counsel again objected for the record and, to preserve her
objection, filed a subsequent motion for judgment as a
matter of law that the affirmative defense was unavail-




7
  On the objection of Mr. Douvris’ counsel, his name, originally
part of plaintiff’s proposed hostile work environment Title VII
jury instruction, was stricken by the court. The court ruled that
Ms. Huff could rely on any evidence relating to the severity
and pervasiveness of any harassment while at MEG. Counsel
for the Sheriff objected that this opened new liability for the
Sheriff that was closed by the summary judgment ruling in
favor of Mr. Guerra on the hostile work environment claim. This
argument is not pressed on appeal, and, therefore, we shall
consider claims in the context of the environment of MEG as a
whole, not simply the harassment for which Mr. Douvris is
alleged to be responsible.
No. 05-1310                                                 9

able on the facts.8
  Ultimately, on the Title VII claim, the court instructed the
jury on the elements of the claim, largely drawn from the
Sheriff’s proposed instruction. After stating the elements,
the instruction directed the jury:
      If you find [that] the plaintiff proved each of the six
    elements of her claim, then you should consider
    whether the defendant Cook County Sheriff’s Depart-
    ment has proved the following affirmative defense:
      Did the defendant Cook County Sheriff’s Department
    prove by a preponderance of the evidence that it had
    policies that prohibit discrimination on the basis of race
    and gender, and procedures that allow employees to
    report discriminatory treatment, but the plaintiff
    unreasonably failed to take advantage of those preven-
    tative or corrective opportunities?
      If you find that the evidence established the affirma-
    tive defense put forth by defendant Cook County
    Sheriff’s Department, you should cease deliberation on
    the issue of hostile work environment and sign a
    verdict form in favor of defendant Cook County
    Sheriff’s Department on that claim.
      If you find that defendant has not proved its affirma-
    tive defense, you should sign a verdict form in favor
    of plaintiff Huff on her hostile work environment
    claim.




8
  That motion also raised a series of objections that Ms. Huff
repeats in this appeal, but that were not raised previously in
the jury instruction proceedings before the district court.
10                                                   No. 05-1310

R.349 at 31-32; see also R.390-1 at 4414-15.9 There was no
mention of tangible employment actions in the Title VII
instruction. The jury returned its verdict for all defen-
dants on all claims.


    3. Post-trial Proceedings
  Ms. Huff filed a motion for a new trial on the Title VII
harassment claim. She argued that she had been prej-
udiced by erroneous jury instructions. In that motion,
Ms. Huff restated and expanded the objections that she
had made in her March 5th motion for judgment as a
matter of law. She included her objection that the instruc-
tion given failed to recognize that, when hostile work
environment harassment leads to a tangible employment
action, the Ellerth/Faragher defense becomes unavailable.
See R.353, 359 at 9-11.
 On January 26, 2005, the district court denied that
motion. The court concluded that Ms. Huff had
     failed to prove that Douvris and Guerra were super-
     visors of Huff within the Sheriff’s Department. All
     the evidence indicated that they were supervisors of
     Huff within MEG, a separate governmental entity,
     although they were employees of the Sheriff’s Depart-
     ment and detailed by the Sheriff’s Department to
     MEG. Because there was no evidence that the alleged



9
   We set forth the affirmative defense instruction in its entirety
to assist the reader in understanding the context in which the
issue before us arose in the district court. Our setting out the
instruction does not indicate our approval of its content as a
correct statement of the law. See infra at 11-12 & n.13.
No. 05-1310                                              11

    harassers were supervisory employees within the
    Sheriff’s Department, the Sheriff was entitled to have
    the jury instructed on its affirmative Ellerth defense.
R.381 at 2. Ms. Huff timely appealed the judgment entered
against her on this claim and the denial of her motion for a
new trial to this court.


                            II
                      DISCUSSION
   On appeal, Ms. Huff contends that the jury instruction
is fraught with legal error and that the errors were suffi-
ciently prejudicial to warrant reversal of the judgment
against her on the Title VII harassment claim. She raises
each of the claims of error presented in her new trial
motion, namely: (1) that the jury erroneously was in-
structed according to the negligence-based liability stan-
dard applicable to co-worker harassment claims; (2) that
the jury could have applied the affirmative defense with-
out first finding that no tangible employment action
occurred; and (3) that the phrasing of the affirmative de-
fense instruction itself erroneously lowered the Sheriff’s
burden below the standards established by the Supreme
Court. Ms. Huff now adds that the instruction also stated
incorrectly that she must prove that the harassment
she suffered was both severe and pervasive. The multiple
rounds of proposed instructions and the shifting posi-
tions of the parties create difficult questions of waiver
and forfeiture on the majority of Ms. Huff’s challenges to
the Title VII instruction. As the record makes clear and the
Sheriff acknowledges, however, Ms. Huff adequately
preserved her objection to the inclusion of the affirmative
defense without an accompanying inquiry into whether the
12                                                 No. 05-1310

harassment resulted in a tangible employment action.
Because we agree with Ms. Huff that this portion of the
instruction did not apprise the jury of the applicable law
and that the error was prejudicial, we need not untangle
the confusion that attends the district court’s rulings on
her other contentions.


A. The Affirmative Defense Instruction
   We review jury instructions de novo to determine
whether, taken as a whole, they correctly and completely
informed the jury of the applicable law. Schmitz v. Canadian
Pac. Ry. Co., 454 F.3d 678, 681-82 (7th Cir. 2006); see also
Boyd v. Illinois State Police, 384 F.3d 888, 894 (7th Cir. 2004).
We defer to the district court’s phrasing of an instruction
that accurately states the law, Schmitz, 454 F.3d at 682;
however, we shall reverse when the instructions “misstate
the law or fail to convey the relevant legal principles in
full” and when those shortcomings confuse or mislead
the jury and prejudice the objecting litigant. Byrd v.
Illinois Dep’t of Pub. Health, 423 F.3d 696, 705 (7th Cir.
2005). We review a district court’s decision on a motion
for a new trial for an abuse of discretion. Schobert v. Illinois
Dep’t of Transp., 304 F.3d 725, 729 (7th Cir. 2002). However,
if the district court committed legal error in instructing
the jury, the decision to deny the new trial was itself an
abuse of discretion. See Almonacid v. United States, 476 F.3d
518, 521 (7th Cir. 2007), cert. denied, 75 U.S.L.W. 3637 (U.S.
June 18, 2007) (No. 06-1525), (noting that a court cate-
gorically abuses its discretion when a decision rests on
legal error).
  In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998),
and Faragher v. City of Boca Raton, 524 U.S. 775 (1998),
No. 05-1310                                                13

decided the same day, the Supreme Court considered the
contours of employer liability under Title VII for work-
place harassment by supervisors. In Ellerth, the Court
began with the statutory text, which makes it unlawful for
an employer to discriminate based on sex, race or other
protected characteristics and defines an employer to
include its “agent[s].” 42 U.S.C. §§ 2000e-2(a)(1), 2000e(b).
Noting the general principle that agency liability will attach
when an agent commits a tort within the scope of his
employment, the Court concluded that harassment is not
generally such an act. Burlington Indus., 524 U.S. at 756-57.
The Court further noted that an employer can also be
liable, consistent with principles of agency law, for acts
outside the scope of employment when committed by a
servant who was “aided in accomplishing the tort by the
existence of the agency relation.” Id. at 758 (quoting
Restatement of Agency § 219(2)(d)). To be aided in the
agency relation, the Court continued, meant more than
simply that the existence of an employment relation-
ship provided the proximity and regular contact that
facilitated harassment. That rule would be too broad, the
Court concluded, because it would obliterate the distinc-
tion between employer liability for coworker harassment
and for supervisor harassment recognized in the regula-
tions and the case law. Id. at 760.
  Although the Court declined to define with precision
when this standard—that a supervisor was aided in
accomplishing the tort by the agency relation—would be
satisfied, the Court held that, at minimum, it was satis-
fied in that class of cases in which a supervisor “takes a
tangible employment action against the subordinate.” Id.
Such a rule was appropriate because “[w]hen a supervisor
makes a tangible employment decision, there is assurance
14                                                 No. 05-1310

the injury could not have been inflicted absent the agency
relation.” Id. at 761-62. A supervisor whose harassment
of a subordinate culminates in a tangible employment
action has acted as an agent of the employer and thus has
created liability for the employer. Id. at 762.
  The Supreme Court then announced the following rule:
     An employer is subject to vicarious liability to a victim-
     ized employee for an actionable hostile environment
     created by a supervisor with immediate (or succes-
     sively higher) authority over the employee. When no
     tangible employment action is taken, a defending employer
     may raise an affirmative defense to liability or damages,
     subject to proof by a preponderance of the evidence, see
     Fed. Rule Civ. Proc. 8(c). The defense comprises two
     necessary elements: (a) that the employer exercised
     reasonable care to prevent and correct promptly any
     sexually harassing behavior, and (b) that the plain-
     tiff employee unreasonably failed to take advantage of
     any preventive or corrective opportunities provided by
     the employer or to avoid harm otherwise. . . . No
     affirmative defense is available, however, when the supervi-
     sor’s harassment culminates in a tangible employment
     action, such as discharge, demotion, or undesirable
     reassignment.
Id. at 765 (emphasis added); Faragher, 524 U.S. at 807-08
(emphasis added). In Faragher, the Court noted that this
approach appropriately held employers liable for cer-
tain specific misuses of supervisory authority; at the same
time, however, it encourages all parties involved to take
appropriate steps to avoid harm, consistent with the
purposes of the statute. 524 U.S. at 805-06. In both Ellerth
and Faragher, however, the Supreme Court explicitly
No. 05-1310                                                15

conditioned the availability of the affirmative defense on
the absence of a tangible employment action.
   In recent years, the Supreme Court has confirmed that
the presence or absence of a tangible employment action
is the critical issue in determining whether, in a supervi-
sory harassment claim, an employer may raise the Ellerth/
Faragher affirmative defense. See Pennsylvania State Police
v. Suders, 542 U.S. 129, 143, 148-50 (2004) (holding that
constructive discharge was not a “tangible employment
action” within the meaning of Ellerth and Faragher unless
it was precipitated by some official act of the enterprise
for which it was a certainty that the harassing supervisor
was “aided by the agency relation”). Our own cases
consistently have applied this standard. See, e.g., Jackson v.
County of Racine, 474 F.3d 493, 501 (7th Cir. 2007) (noting
that liability is “strict” when the supervisor harassment is
accompanied by an official action such “as discharge,
demotion, or undesirable reassignment”); Robinson v.
Sappington, 351 F.3d 317, 337 (7th Cir. 2003) (holding that,
when a constructive discharge was precipitated by the
official action of a transfer to what the employee claimed
would be an unbearable situation, no affirmative defense
was available).
  In Ms. Huff’s case, at the instruction conference, the
district court ruled that the absence of a tangible em-
ployment action is not a necessary precondition to the
availability of an affirmative defense. That view cannot
be reconciled, as a matter of law, with the standard set
forth in Ellerth and Faragher and elaborated upon in Suders.
On the contrary, if Ms. Huff can demonstrate that a super-
visor’s harassment culminated in a tangible employment
action, the Sheriff may not raise an affirmative defense; his
16                                                     No. 05-1310

liability will be strict.10
  We note that the record contains evidence that would
support submitting potential tangible employment actions
to the jury, including denial of case leads critical to career
advancement and denial of a transfer.11 We also note that,
at trial, the Sheriff repeatedly contended that Mr. Guerra
and Mr. Douvris did not supervise Ms. Huff for the
Sheriff’s Department, and that, therefore, Ms. Huff could



10
  At oral argument, counsel for the Sheriff told this court that
the Sheriff did not concede error in the instruction. However,
we do not discern from his brief to this court any concrete
suggestion that the Ellerth/Faragher defense correctly was
presented to the jury or that, for any other reason, Ms. Huff was
not entitled to a jury instruction that couched her claims in the
context of the standards for supervisor harassment culminat-
ing in a tangible employment action.
11
  See Herrnreiter v. Chicago Hous. Auth., 315 F.3d 742, 744 (7th
Cir. 2002) (collecting cases in which the standard for a tangible
employment action is satisfied by “a nominally lateral transfer
with no change in financial terms,” which simultaneously
“significantly reduces the employee’s career prospects by
preventing him from using the skills in which he is trained
and experienced, so that . . . his career is likely to be stunted,” or
by other official action that “change[s the employee’s job] in a
way that injures his career,” even if unaccompanied by a
transfer); Molnar v. Booth, 229 F.3d 593, 600 (7th Cir. 2000)
(holding that removing resources necessary for the plaintiff-
employee to do her job constituted a tangible employment
action).
  Under this precedent, either of these actions could satisfy
the tangible employment action. Both are decisions within the
scope of the individual defendants’ supervisory authority.
No. 05-1310                                                    17

only establish the Sheriff’s liability by satisfying the more
rigorous burdens applicable in claims of co-worker harass-
ment. This argument is not one the Sheriff has pressed to
this court on appeal. In any event, we note that the Sheriff’s
claim in the district court that the individual defendants
were not supervisors for the Sheriff as a matter of law
lacks support in the record before us.12 If the individual
defendants indeed were authorized to take tangible
employment actions against Ms. Huff, affecting her employ-
ment relationship with the Sheriff, this authority in and of
itself is sufficient evidence from which a jury could con-
clude that Mr. Guerra and Mr. Douvris were supervising
Ms. Huff on behalf of the Sheriff’s Department. As the
Supreme Court has noted, tangible employment actions fall
within the special province of the supervisor. Burlington
Indus., 524 U.S. at 762; see also Parkins v. Civil Constructors of
Illinois, Inc., 163 F.3d 1027, 1034 (7th Cir. 1998) (“[T]he
essence of supervisory status is the authority to affect the
terms and conditions of the victim’s employment.”).
Ms. Huff, therefore, was entitled to an instruction that
properly placed the elements of a supervisory harass-
ment claim before the jury.




12
   In ruling on the post-trial motion, the district court con-
cluded that none of the evidence demonstrated that the individ-
ual defendants were supervisors for the Sheriff. The district
court went on to conclude that because the defendants were
not supervisors, the affirmative defense was available. This
is incorrect. The affirmative defense comes into play, as Ellerth
makes clear, when the employer would otherwise be held
vicariously liable for supervisor harassment. See generally
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 758-65 (1998).
18                                                No. 05-1310

B. Prejudice
  With regard to the affirmative defense in the Title VII
instruction, the Sheriff submits that any error in the jury
instruction was harmless. The harmlessness is evident,
the Sheriff continues, because the verdicts rendered in
favor of the individual defendants on the § 1983 hostile
work environment claims conclusively demonstrate that
the jury decided that no harassment in fact had occurred.
The jury similarly must have concluded that a failure
of proof of harassment was dispositive on Ms. Huff’s
Title VII claim as well, and, therefore could not have
reached the issue of the affirmative defense, whether or
not erroneously presented. We now examine the Sheriff’s
claim that the § 1983 verdict tells us all we need to know
about the jury’s consideration of the Title VII claim.
  We have stated, as the Sheriff concedes, that because
the Constitution prohibits intentional discrimination by
state actors, § 1983 relief is available to a plaintiff claiming
a hostile work environment only when she can demon-
strate that the defendant acted with discriminatory intent.
Trautvetter v. Quick, 916 F.2d 1140, 1149 (7th Cir. 1990); see
also Valentine v. City of Chicago, 452 F.3d 670, 683 (7th Cir.
2006) (noting the requirement of intentional discrimina-
tion). The same is not true of a Title VII plaintiff claiming
hostile work environment harassment. See King v. Bd. of
Regents of Univ. of Wisconsin Sys., 898 F.2d 533, 537-38 (7th
Cir. 1990) (“One difference between sexual harassment
under equal protection and under Title VII, however, is
that the defendant must intend to harass under equal
protection . . . but not under Title VII, where the inquiry is
solely from the plaintiff’s perspective.” (internal citation
omitted)); Bohen v. City of East Chicago, Indiana, 799 F.2d
1180, 1187 (7th Cir. 1986) (“[T]he ultimate inquiry [in a
No. 05-1310                                                 19

§ 1983 hostile work environment equal protection claim] is
whether the sexual harassment constitutes intentional
discrimination. This focus differs from the inquiry under
Title VII as to whether the sexual harassment altered the
conditions of the victim’s employment.”); see generally
Valentine, 452 F.3d 670, 677-85 (examining Title VII and
§ 1983 claims separately and considering discriminatory
intent only in the context of the § 1983 claim).
   Of course, “[s]exual harassment under Title VII presup-
poses intentional conduct.” Burlington Indus., 524 U.S. at
756. But the supposition that harassing conduct is inten-
tional in the tort liability sense, as opposed to negligent,
does not mean that a hostile work environment is action-
able under Title VII only when the perpetrator acts with a
purpose to discriminate. Indeed, this court has acknowl-
edged that sexual harassment may be actionable under
Title VII by a plaintiff who was not the direct target of
workplace conduct if the plaintiff is within the protected
class the conduct targets generally. See, e.g., Yuknis v. First
Student, Inc., 481 F.3d 552, 554 (7th Cir. 2007) (noting that
there need not be “an intention of causing distress or
offense” and that women in a workplace may state a claim
for harassment even though “[t]he darts were aimed
elsewhere, and hit the women by accident”). This distinc-
tion could be of paramount importance in Ms. Huff’s own
case, where certain of her allegations of harassment could
be read as lacking discriminatory intent and evincing a kind
of extreme workplace “insensitivity.” Id. For example, Ms.
Huff claims that explicit racially and sexually charged
language was directed to her, or was used in her presence
but directed at others. The jury might have interpreted
20                                                   No. 05-1310

this conduct as sufficiently severe and pervasive13 to have
created an actionable hostile work environment. How-
ever, the jury may have concluded that the basis for the
behavior was stupidity and uncouthness on the part of
the individual defendants—sufficient for Title VII lia-
bility, but not evincing the discriminatory intent re-
quired for liability under § 1983.
  The Sheriff accepts that this difference in the elements
of the two types of claims would prevent us, in the ordi-
nary case, from viewing a general verdict for a defendant
on a § 1983 sexual harassment claim as dispositive on a
Title VII claim. Nonetheless, the Sheriff claims that, in this
case, the § 1983 hostile work environment jury instruc-
tion actually given contained a fortuitous error: It omitted
the element of intent. Whatever value the Sheriff’s con-
tention might have in a case where the intent element truly
was omitted from the instruction, we conclude that it is
unsupported by the record.
   In examining the impact of a jury instruction, it is
firmly established that we must evaluate the instructions
given to the jury in their entirety. Schmitz, 454 F.3d at 681-
82. The district court began the instructions by explaining
that Ms. Huff had alleged both disparate treatment and


13
  The district court instructed the jury that conduct must be
severe and pervasive to give rise to an actionable hostile work
environment. Although we do not reach this error in our
disposition of this case to avoid issues of waiver, we note for the
sake of clarity that the use of the conjunctive misstates the
legal standard for harassment. See Cerros v. Steel Techs., Inc.,
398 F.3d 944, 950 (7th Cir. 2005) (“We reiterate now that con-
duct that is either pervasive or severe may give rise to a hostile
work environment.” (emphasis in original)).
No. 05-1310                                                  21

hostile work environment claims under § 1983. The court
then read aloud the first substantive legal instruction,
which stated:
      To establish a claim under Section 1983 against defen-
    dants Guerra and Douvris, plaintiffs must establish by a
    preponderance of the evidence each of the following
    six elements:
      First. That the conduct complained of was committed
    by a person acting under color of state law.
      Second. That plaintiffs are members of a protected
    class.
      Third. That defendants treated plaintiffs differently
    from similarly-situated agents who were not members
    of a protected class.
     Fourth. That plaintiff sustained an “adverse employ-
    ment action” as a result of being treated differently.
      Fifth. That in treating plaintiffs differently, defendants
    acted with discriminatory intent.
      Sixth. That defendants’ acts were the proximate cause
    of the adverse employment action or subjected plaintiffs
    to a hostile work environment and consequent damages
    sustained by the plaintiffs.
      I’ll now examine each of these elements in more detail for
    you.
R.390-1 at 4401-02 (emphasis added). The district court then
proceeded to discuss the relevant legal definitions of each
of the above terms. See id. at 4402-03 (“When I say members
of a protected class, I mean . . . . When I say similarly-
situated agents, I mean . . . .”). Within this discussion, the
court defined discriminatory intent: “When I say acted
22                                             No. 05-1310

with discriminatory intent, I mean that plaintiffs must
show that defendant Guerra and/or defendant Douvris
intentionally and purposefully engaged in the misconduct
alleged by plaintiffs because of plaintiffs’ membership in a
protected class.” Id. at 4403. The court then defined the
concept of proximate cause, after which it proceeded to
state the following instruction:
       To prove her hostile environment claim under
     Section 1983, plaintiff Huff must prove each of the
     following elements:
        1. That she was continuously and repeatedly
           subjected to racially and/or sexually offensive
           acts or statements or for different treatment
           based on race and/or sex. For purposes of a
           Section 1983 hostile work environment claim,
           conduct that only amounts to ordinary socializ-
           ing in the workplace, such as occasional horse-
           play, sexual flirtation, sporadic or occasional
           use of abusive language, does not constitute a
           hostile work environment.
        2. That such treatment or acts or statements
           were unwelcome and not invited or solicited
           by the employee[’s] own acts or statements.
        3. That such treatment or such acts or statements
           resulted in a work environment that was per-
           meated with discriminatory intimidation,
           ridicule, or insult of sufficient severity or
           pervasiveness that it materially altered the
           conditions of plaintiff[’s] employment.
        4. That a reasonable person would have found
           the workplace to be hostile. For purposes of a
           Section 1983 hostile work environment claim,
No. 05-1310                                                     23

              in determining whether a hostile work environ-
              ment existed, you must consider the evidence
              from the perspective of a reasonable person.
              This is an objective standard and requires you
              to look at the evidence from the perspective of
              a reasonable person’s reaction to a similar
              environment under similar circumstances.
        5. That plaintiff personally experienced the work-
           place as hostile.
        And 6. That some act contributing to the hostile
        environment occurred after June 26, 1995.
R.390-1 at 4403-05. The Sheriff invites the attention of this
court only to this final portion of the instruction. He is
correct that this particular portion of the instruction says
nothing about intent.
  Reading the § 1983 instructions as a whole, however,
we think a reasonable jury would have understood that this
section merely defined the element of hostile work environ-
ment as one piece of plaintiff’s burden to establish liability
under § 1983. The court’s full § 1983 instruction clearly did
require the jury to find that the defendants acted with
discriminatory intent. Therefore, absent a special verdict14
on either the Title VII or the § 1983 claims, we do not know
that the jury’s verdict on each claim rested on a single
conclusion that Ms. Huff failed to demonstrate a hostile


14
   In closing, we note that the Sheriff would have been in a better
position to argue an absence of prejudice had the parties in-
sisted upon special interrogatories. Special interrogatories are
particularly advisable in cases such as this, where multiple
complicated and interrelated claims are submitted to a jury after
a five week trial.
24                                            No. 05-1310

work environment. The jury may have concluded, operat-
ing within the instructions given, that the work-
ing environment to which Ms. Huff was subjected was
actionably hostile, but that the individual defendants
were not liable under § 1983 because they had not acted
with discriminatory intent. Accordingly, we cannot read
the jury’s verdict on the § 1983 claim as embodying a
conclusion that Ms. Huff was not harassed. Therefore, in
determining the Sheriff’s Title VII liability, the jury may
have reached and relied on the Sheriff’s affirmative de-
fense. That defense, as we have noted, was not available to
the Sheriff if Ms. Huff proved her claims that her harass-
ment culminated in a tangible employment action.
  The error in submitting the issue to the jury without the
accompanying predicate inquiry of whether there was a
tangible employment action, therefore, did prejudice
Ms. Huff’s claims.


                       Conclusion
  Because we have concluded that the district court
committed reversible error in instructing the jury on the
affirmative defense portion of Ms. Huff’s Title VII claim,
we reverse the judgment of the district court and remand
for further proceedings consistent with this opinion.
Ms. Huff may recover her costs in this court.
                                REVERSED and REMANDED
No. 05-1310                                          25

A true Copy:
      Teste:

                     _____________________________
                     Clerk of the United States Court of
                       Appeals for the Seventh Circuit




               USCA-02-C-0072—7-16-07
