## Facts

- Marguerite Hicks, a Black woman, was hired as a security guard at a Denver plant; she was the only Black woman in the security force and one of two Black guards among about thirty employees.
- Security guards patrolled the plant using a monitored “walking the keys” system requiring timed activation of keys at numerous checkpoints, radio checks, and daily log entries.
- New guards served a ninety-day probationary period during which they could be discharged without cause.
- Hicks alleged that during probation she experienced a workplace atmosphere in which racial slurs and jokes were tolerated and Black employees were treated adversely.
- Hicks alleged sexual harassment by a coworker, including unwanted physical touching and sexually threatening or suggestive remarks (including grabbing her buttocks and breasts and statements implying pursuit).
- Gates asserted Hicks was not harassed and was terminated solely for unsatisfactory performance, including failing to complete required patrol checks, inaccuracies in “walking the keys,” and falsified or improper log entries.
- Hicks claimed her discharge was retaliation for complaining internally and filing an EEOC charge.

## Issues

1. Whether Hicks proved actionable racial harassment under Title VII and 42 U.S.C. § 1981 based on conduct sufficiently severe or pervasive to alter employment conditions.
2. Whether Hicks proved sexual harassment under Title VII, including whether the evidence supported a hostile work environment (as distinct from quid pro quo harassment).
3. Whether Hicks’s discharge was unlawful retaliation for protected activity (complaints/EEOC filing) or was based on legitimate performance reasons.

## Decision

- The Tenth Circuit affirmed the judgment for Gates on the racial harassment claims, deferring to the district court’s factual findings and concluding the proven incidents did not meet the actionable threshold on this record.
- The court reversed in part and remanded aspects of the sexual-harassment claim, holding the district court did not adequately analyze the hostile-environment theory and the significance of unwanted sexual touching and remarks.
- The court affirmed the district court’s rejection of the retaliation claim, holding the trial court could credit Gates’s performance-based explanation and that Hicks did not show clear error in the credibility determinations.
- The case was remanded for further proceedings consistent with the appellate court’s clarified hostile-environment framework.

## Legal Principles

- Title VII and § 1981 reach discriminatory harassment that affects the “terms, conditions, or privileges of employment”; harassment is actionable when sufficiently severe or pervasive to create an abusive working environment.
- Sexual harassment claims require separating quid pro quo harassment (job benefits/detriments conditioned on sexual demands) from hostile-environment harassment (discriminatory intimidation, ridicule, or insult permeating the workplace).
- Unwanted sexual touching and sexually threatening or suggestive comments, if credited, can be sufficiently severe to support a hostile-environment finding even without a discrete employment action tied to sexual demands.
- For coworker harassment, employer liability may attach if the employer knew or should have known of the harassment and failed to take prompt, appropriate remedial action; the adequacy of notice and response is fact-dependent.
- Title VII retaliation follows a burden-shifting framework: (1) prima facie case (protected activity, adverse action, causal connection); (2) employer’s legitimate, non-retaliatory reason; (3) plaintiff’s showing of pretext and retaliatory motive.
- Appellate review generally defers to district-court factfinding and credibility determinations absent clear error, including findings about performance-based reasons for discharge.

## Conclusion

The Tenth Circuit largely upheld the employer’s judgment on racial harassment and retaliation based on the district court’s factual findings, but remanded the sexual-harassment claim to ensure the alleged unwanted sexual touching and remarks were evaluated under the correct hostile-environment standards and employer-liability rules.


Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987)