Lisa L. OCHELTREE, Plaintiff-Appellee, v. SCOLLON PRODUCTIONS, INCORPORATED, Defendant-Appellant, 308 F.3d 351

Reversed and remanded with instructions by published opinion. Judge WILLIAMS wrote the opinion, in which Judge NIEMEYER joined. Judge MICHAEL, wrote an opinion dissenting in part and concurring in the judgment in part. OPINION WILLIAMS, Circuit Judge. Lisa L. Ocheltree filed this action against her employer, Scollon Productions, Incorporated (Scollon Productions), alleging sexual harassment under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e (West 1994 & Supp.2001). Following a jury trial, Ocheltree was awarded a substantial amount in compensatory and punitive damages.

Scollon Productions appeals the district court’s denial - of its motion for judgment as a matter of law. Because we agree that “there is no legally sufficient evidentiary basis” for the jury’s verdict, Fed.R.Civ.P. 50(a)(1), we reverse and remand with instructions for the district court to enter judgment in favor of Scollon Productions. I. A. Scollon Productions is in the business of creating costumes for various characters and mascots, such as the South Carolina Gamecock mascot. Bill Scollon (Scollon) began the company 31 years ago and is the President, and Ellery Locklear is the Vice-President.

The company currently employs approximately 50 people and is operated from a plant that is located in White Rock, South Carolina. Ocheltree was employed in' the production shop of the plant from February 1994 until her discharge in August 1995. Ocheltree testified to numerous incidents of offensive behavior during her employment at Scollon Productions. According to Ocheltree, some of the primarily male staff engaged in open conversations about sex, made comments about the sexual habits of others on the staff, used foul, vulgar, and profane language, and told sexually-oriented jokes.

Ocheltree also testified about specific incidents that occurred during her employment, including an incident when she witnessed employees pretending to perform oral sex and other sexual acts on a mannequin, another incident when employees showed Ocheltree a picture of pierced male genitalia and asked her what she thought about it, and finally, an incident when a co-worker sang her a song in which the lyrics were “come to me, oh baby, come to me, your breath smells like cum to me.” (J.A. at 114-15.) According to Ocheltree’s testimony, the shop supervisor, Harold Hirsch, showed a photograph of a nude woman around the shop and engaged in several sexually explicit conversations with Ocheltree’s male coworkers.

Brian Hodge, a former employee of Scollon Productions, corroborated portions of Ocheltree’s testimony, stating that there was a good deal of “vulgar language and vulgar attitude throughout the shop,” and that this type of conduct happened “every day.” (J.A. at 199-200, 204.) He also testified to overhearing employees discuss sexual acts and witnessed employees simulate sexually explicit acts on mannequins. Hodge stated that Hirsch was often present during these discussions and conduct, had participated in some of the discussions, and had once made a sexually explicit comment.

Hodge testified that he recalled a safety meeting attended by Hirsch wherein Ocheltree let it be known that she was offended by the conduct and that she wanted the language and the conduct to stop immediately. Hodge testified that he “speculated” that the men engaged in some of the behavior to “bother[ ]” Ochel-tree, and that the behavior got worse after Ocheltree complained. (J.A. at 202-03.) According to Ocheltree, she attempted to speak to Scollon and Locklear about the work environment on different occasions, but she was never given the opportunity to meet with either.

On at least one occasion, Scollon told her that he did not have time to meet with her and instructed her to speak to Locklear. On another occasion, when Locklear was on the telephone, Ocheltree wrote him a note stating that she needed to speak with him, but she did not indicate what she needed to speak with him about. Locklear testified that after he concluded his conversation, he attempted to speak to Ocheltree about the note, but he could not find her because she was not at her work station.

He made no further attempts to follow up with her; nor did Ocheltree make any further attempts to speak with Locklear or Scollon. In 1995, after approximately 18 months with Scol-lon Productions, Ocheltree was discharged for excessive absenteeism, excessive use of the telephone during working hours, and because her husband had threatened physical violence against Locklear. B. On April 25, 1996, Ocheltree filed a complaint against Scollon Productions in the United States District Court of South Carolina, alleging sexual harassment and violations of South Carolina state law.

Following a report and recommendation by a magistrate judge, the district court granted Scollon Productions’s motion for

summary judgment on all claims. In his report and recommendation, the magistrate judge found that there was no basis for imposing liability on Scollon Productions because neither Scollon nor Locklear, who were the only two members of the corporation active in day-to-day management, were aware of or should have known of the offending activity. The district court concluded that Ocheltree failed to object to the finding that neither Scollon nor Lock-lear knew of the offending activity, adopted the magistrate judge’s recommendation, and granted

summary judgment to Scollon Productions. Ocheltree filed a pro se appeal with this court. Following briefing on the appeal, the Supreme Court issued its opinions in Burlington Indus. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), which held that an employer is vicariously liable for a hostile work environment created by a supervisor, subject to an affirmative defense that allows the employer to avoid strict liability for one employee’s sexual harassment of another.

Faragher, 524 U.S. at 808, 118 S.Ct. 2275; Ellerth, 524 U.S. at 765, 118 S.Ct. 2257. Based upon Faragher and Ellerth, we vacated the district court’s judgment as to the hostile work environment claim and remanded. Ocheltree v. Scollon, 161 F.3d 3, 1998 WL 482783 (4th Cir. Aug.11, 1998). We affirmed the district court’s dismissal of Ocheltree’s state law claims because Ocheltree faded to preserve those issues on appeal. Id. Upon remand, Scollon Productions filed three separate motions for

summary judgment, each of which was denied by the district court. After the jury returned a special verdict in favor of Ocheltree for $7,280.00 in compensatory damages and $400,000 in punitive damages, Scollon Productions filed a motion for judgment as a matter of law, requesting the district court to set aside the jury verdict, or, in the alternative to reduce the damages award based upon the statutory cap on punitive and compensatory damages in 42 U.S.C.A. § 1981a(b)(3) (West 1994 & Supp.2001).

The district court denied the motion to set aside the jury verdict but reduced the punitive and compensatory damages award to a total of $50,000 pursuant to § 1981a(b)(3)(A). Scollon Productions filed a timely notice of appeal. II. We review de novo a district court’s denial of a Rule 50 motion for judgment as a matter of law, viewing the evidence in the light most favorable to the non-moving party. See, e.g., Chaudhry v. Gallerizzo, 174 F.3d 394, 404-05 (4th Cir.1999).

A court should render judgment as a matter of law when “a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.” Fed. R. Civ. Proc. 50(a); see also Weisgram v. Marley Co., 528 U.S. 440, 448, 120 S.Ct. 1011, 145 L.Ed.2d 958 (2000). “While we are compelled to accord the utmost respect to jury verdicts and tread gingerly in reviewing them, we are not a rubber stamp convened merely to endorse the conclusions of the jury, but rather have a duty to reverse the jury verdict[ ] if the evidence cannot support it.” Price v.

City of Charlotte, 93 F.3d 1241, 1250 (4th Cir.1996) (internal citations omitted). “Judgment as a matter of law is proper when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment.” Id. at 1249 (internal quotation marks omitted). Title VII makes it an “unlawful employment practice for an employer ... to fail or refuse to hire or to discharge ... or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex.” 42 U.S.C.A. § 2000e-2(a)(l).

Because the workplace environment is one of the “terms, conditions, or privileges of employment,” see Meritor Savs. Bank v. Vinson, 477 U.S. 57, 64-67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), Title VII creates a cause of action in favor of persons forced to work in a hostile workplace, see id. at 66, 106 S.Ct. 2399 (establishing “that a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment”).

To establish sexual harassment based upon a hostile or abusive work environment, a plaintiff is required to prove four elements: “(1) the subject conduct was unwelcome; (2) it was based on the sex of the plaintiff; (3) it was sufficiently severe or pervasive to alter the plaintiffs conditions of employment and to create an abusive work environment; and (4) it was imputable on some factual basis to the employer.” Spicer v. Virginia, 66 F.3d 705, 710 (4th Cir.1995) (en banc); Brown v. Perry, 184 F.3d 388, 393 (4th Cir.1999).

Scollon Productions contends that the evidence was insufficient with respect to elements (2), (3), and (4). We need only address elements (2) and (3). A. “Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at ‘discriminat [ion] ... because of ... sex.’ ” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). In evaluating the “because of’ prong, this court has noted that Title VII was not intended to reach “dirty jokes or sexually-based profanity spoken by a male supervisor to other male employees.” Hopkins v.

Baltimore Gas & Elec. Co., 77 F.3d 745, 749 (4th Cir.1996). We have further explained “that in prohibiting sex discrimination solely on the basis of whether the employee is a man or a woman, Title VII does not reach discrimination based on other reasons, such as the employee’s sexual behavior, prudery, or vulnerability.” Id. at 751; see also McWilliams v.

Fairfax County Bd. of Supervisors, 72 F.3d 1191, 1196 (4th Cir.1996) (refusing to recognize a Title VII hostile work environment claim for discrimination “ ‘because of [the harasser’s] vulgarity and insensitivity and meanness of spirit”), abrogated on other grounds by Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). As we held in Hopkins, the critical issue in evaluating Title VII’s “because of’ prong is: “[W]ould the complaining employee have suffered the harassment had he or she been of a different gender?” Hopkins, 77 F.3d at 750 (quoting Bundy v.

Jackson, 641 F.2d 934, 942 n. 7 (D.C.Cir.1981)); cf. Harris v. Forklift Sys., Inc., 510 U.S. 17, 25, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (Ginsburg, J., concurring) (“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.”). With respect to the vast majority of offensive conduct upon which Ocheltree relies, the uneontested evidence demonstrates conclusively that Ocheltree would have been exposed to the same atmosphere had she been male.

Of the cata-logued offensive behavior, only three incidents were directed toward Ocheltree — the vulgar song, the body-piercing magazine, and the sexual acts with the mannequin. The remainder of the conduct occurred in group settings as part of the male workers’ daily bantering toward one another and was overheard or witnessed by Ocheltree. Cf. Hopkins, 77 F.3d at 754 (“several of the incidents upon which Hopkins relies occurred in group settings”); White v. Federal Express Corp., 939 F.2d 157, 160 (4th Cir.1991) (“Most of the racist incidents detailed ... were not directed against plaintiff_”).

Moreover, the uncontested evidence demonstrated that the men’s behavior did not begin or change as of the date Ocheltree began working with Scollon Productions but had been ongoing before she came to work for Scollon Productions. (J.A. at 241-42); cf. Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir.1993) (court may consider “the lexicon of obscenity that pervaded the environment of the workplace both before and after the plaintiffs introduction into its environs” (internal quotation marks omitted)).

Additionally, setting aside the incidents involving the mannequin and the vulgar song, there was no evidence demonstrating that the offensive behavior that occurred in Ocheltree’s presence was gender-related. The discussions certainly were sexually explicit, including the discussion regarding the body-piercing magazine, and while they were generally degrading, humiliating, and even insulting, they were not aimed solely at females in any way.

Compare Oncale, 523 U.S. at 80, 118 S.Ct. 998 (“We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations.”); Lack v. Wal-Mart, rnc., 240 F.3d 255, 258 (4th Cir.2001) (overturning a jury verdict for lack of evidence supporting the “because of’ prong where the supervisor regularly told sexually explicit jokes, used sexually vulgar language, and generally had an “unabashed taste for lewd humor”), with Smith v.

First Union Nat’l Bank, 202 F.3d 234, 242 (4th Cir.2000) (“A work environment consumed by remarks that intimidate, ridicule, and maliciously demean the status of women can create an environment that is as hostile as an environment that contains unwanted sexual advances.”). Ocheltree conceded that the conduct was equally offensive both to men and women. Two of Ocheltree’s male coworkers, Steve Zouras and John Riddle, complained to management about the other workers’ behavior. Cf.

Lack, 240 F.3d at 262 (“Lack fails to come to grips with the fact that female employees (including his original co-plaintiff Susan Willis) also lodged similar complaints regarding Bragg’s behavior. This fact undercuts Lack’s claim to a substantial extent.”); id. (“In its totality, the evidence compels the conclusion that Bragg was just an indiscriminately vulgar and offensive supervisor, obnoxious to men and women alike.”).

Ocheltree testified that there was never any suggestion that she engage in sexual relations with anyone at the plant, that she was not frightened by any of the behavior, that nobody touched her in a sexual or threatening manner, and that none of the comments were related in any manner to her appearance. (J.A. at 147); cf. Hartsell v. Duplex Prod., Inc., 123 F.3d 766, 773 (4th Cir.1997) (“There is no allegation that Hartsell was inappropriately touched, propositioned, flirted with, taunted, or even ogled.”).

Also of significance is the fact that the vulgarities alleged here, including “mother f-r,” “faggot,” “d—k head,” “p-ssy,” “blow job,” and “ass,” (J.A. at 35-36), are not “unambiguous [gender] epithet[s],” Spriggs v. Diamond Auto Glass, Inc., 242 F.3d 179, 185 (4th Cir.2001), such that it would be reasonable to assume that they were animated by gender bias. The dissent disputes this final point, claiming that many of the sexually-explicit conversations portray women as “sexually subordinate” to men. Post at 370.

We cannot agree that the evidence supports such a characterization; the conversations simply depict — in graphic and crude terms — heterosexual sex, including oral sex. Indeed, the conversations depict the sexual prowess of females at least to the same extent as they do males. To demonstrate that the harassment was directed at her because of her gender, Ocheltree relies upon the testimony of Hodge, in which he stated that he believed the men acted the way they did to “bother” Ocheltree. (J.A. at 202.) Hodge conceded, however, that his testimony regarding the motivation for the conduct was pure speculation.

Additionally, even if the alleged harassers were intending to bother Ocheltree, there is no evidence that those participating in the offensive conduct were attempting to bother her because of her gender. On the evidence presented, the jury would not be permitted to make the inferential leap that Ocheltree’s gender motivated the men’s offensive behavior.

As noted above, the uncontroverted evidence demonstrated that the men engaged in the same type of behavior before Ochel-tree began working at Scollon Productions, continued to engage in the behavior around the other men while Ocheltree worked there, and that several other men found the behavior equally offensive. Hodge also testified that the behavior worsened after Ocheltree complained about the behavior at a meeting, which Ocheltree contends is evidence that the sexually explicit behavior was motivated by gender.

Notably lacking, however, was evidence demonstrating that after Ochel-tree complained, the offensive behavior worsened only toward her, as opposed to worsening toward all employees. Indeed, from Hodge’s testimony, one can only conclude that the behavior worsened for all employees and was equally offensive to men and women alike.

Accordingly, giving Ocheltree the benefit of all permissible inferences, none of the offensive behavior catalogued by Ocheltree was directed at her because of her gender, save the vulgar song and the simulated sex with the mannequin, which arguably could be construed as gender-related harassment, in that both could be perceived as particularly demeaning towards women or as veiled sexual propositions. Assuming, without deciding, that these two incidents constitute gender-related harassment, we next consider whether the incidents were so severe or pervasive as to have altered the terms of Ocheltree’s employment. B.

In analyzing the third element of a hostile work environment claim, this court has emphasized that “[n]ot all sexual harassment that is directed at an individual because of his or her sex is actionable.” Hartsell, 123 F.3d at 772 (internal quotation marks omitted). “The occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers would be neither pervasive nor offensive enough to be actionable. The workplace that is actionable is the one that is hellish.” Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir.1997) (internal quotation marks and citation omitted).

When presented in other Title VII cases with the type of isolated, scattered incidents that are at issue here, we repeatedly have held that the conduct was not sufficiently severe or pervasive as a matter of law. See, e.g., Hartsell, 123 F.3d at 773 (“But the claims propounded by Hartsell — even assuming them all to be true — are so trivial, so isolated, and so far from the paradigmatic case of sexual harassment, that

summary judgment was clearly appropriate.”); Hopkins, 77 F.3d at 754 (listing cases involving infrequent, isolated incidents in which we have held that harassment was not severe or pervasive as a matter of law). Thus, we have no difficulty concluding that the two arguably gender-related incidents directed at Ochel-tree during the year and a half that she was employed at Scollon Productions were not severe or pervasive for purposes of Title VII.

Having failed to introduce sufficient evidence establishing the third element of Ocheltree’s hostile work environment claim, the claim is not cognizable as a matter of law. Accordingly, the district court erred by refusing to grant judgment as a matter of law in favor of Scollon Productions. C. The dissent agrees that the gender-based conduct identified in Part A is insufficient, as a matter of law, to create a hostile or abusive work environment under this circuit’s jurisprudence. Post at 366.

The dissent further agrees “that much of the sexual talk Ocheltree heard — vulgar though it may be — cannot be seen as disproportionately demeaning to women.” Post at 373-74. The dissent concludes, however, that “Oeheltree’s coworkers’ constant descriptions of their sexual exploits, including their near-obsessive interest in discussions of oral sex,” post at 374, constitute gender-based harassment and that, upon considering these conversations, the evidence was sufficient to support the jury’s verdict. In so concluding, the dissent relies principally upon the shock value of the salacious conduct.

However well-intentioned the dissent’s analysis may be, it ignores or substantially discounts controlling circuit and Supreme Court Title VII jurisprudence and relies upon a number of flawed premises, warranting a somewhat extended response. The crux of the dissent’s analysis relies on the premise that “[cjourts have ... recognized that harassing conduct can be ‘because of sex’ even when the conduct ‘is not directed at a particular individual or group of individuals, but is disproportionately more offensive or demeaning to one sex.’ ” Post at 372 (quoting Robinson v.

Jacksonville Shipyards, Inc., 760 F.Supp. 1486, 1522-23 (M.D.Fla.1991)). It then states that a Title VII plaintiff can demonstrate that conduct is gender-based by showing that the “environment was more hostile to her because of her sex than it would have been to a man.” Post at 373. Despite the dissent’s protestations to the contrary, such an analytical framework defines “discrimination] ... because of ... sex” exclusively by reference to the potential unintended effects of offensive conduct on a particular gender, without regard to the motivation for, or intent underlying, the offensive conduct.

Whatever merit this approach might have, it is diametrically opposed to the construction that has been given to the phrase “discriminat [ion] ... because of ... sex” throughout Title VII sexual harassment jurisprudence. Oncale, 523 U.S. at 79, 80, 118 S.Ct. 998 (examining the question of what “discrimination] ... because of ... sex” means and focusing on the harasser’s motivation for the offensive conduct, and thus reaffirming that the critical issue is discriminatory intent); Lack, 240 F.3d at 261 (asking whether offensive comments were “animated by Bragg’s hostility to Lack as a man”); Smith v.

First Union Nat’l Bank, 202 F.3d 234, 242 (4th Cir.2000) (“An employee is harassed or otherwise discriminated against ‘because of his or her gender if, ‘but for’ the employee’s gender, he or she would not have been the victim of the discrimination.”) (citing Wrightson v. Pizza Hut of America, Inc., 99 F.3d 138, 142 (4th Cir.1996)); Succar v. Dade Co. Sch. Bd., 229 F.3d 1343, 1345 (11th Cir.2000) (reiterating that harassment is “because of’ gender only when the harassment is motivated by gender); Green v. Administrators of the Tulane Educ.

Fund, 284 F.3d 642, 659 (5th Cir.2002) (approving a jury instruction that stated that jury must find that gender was the “but for” cause of the harassing conduct); Williams v. General Motors, Corp., 187 F.3d 553, 565 (6th Cir.1999) (ruling that a plaintiff must show that “but for the fact of her sex, she would not have been the object of harassment” (citation omitted)); see also DeClue v. Central Illinois Light Co., 223 F.3d 434, 437 (7th Cir.2000) (discussing distinction between sexual harassment hostile work environment claim and a sexual discrimination disparate impact claim); Gillming v.

Simmons Indus., 91 F.3d 1168, 1171-72 (8th Cir.1996) (affirming a jury instruction that required the jury to find that the harassing acts were intentional and motivated by gender); EEOC Comp. Manual (CCH) § 615.2(b)(3) (1987) (“[T]he crucial inquiry is whether the harasser treats a member or members of one sex differently from members of the other sex.”); see generally David S. Schwartz, When is Sex Because of Sex? The Causation Problem in Sexual Harassment Law, 150 U. Pa.

L.Rev. 1697, 1772-74 (2002) (concluding that use of an “effects” test or a disparate impact test, as opposed to a motivation test, is improper when evaluating a sexual harassment claim). Moreover, the dissent fails to explain persuasively how its analysis comports with that set forth in Lack, wherein we explicitly rejected the argument that sexually explicit jokes and sexually vulgar language directed at, and offensive to, both genders constitute discrimination because of sex.

Lack, 240 F.3d at 258 (addressing a set of sexually vulgar remarks comparable to the type and number of those at issue here); see also Hopkins, 77 F.3d at 749 (stating that Title VII does not reach “dirty jokes or sexually-based profanity spoken by a male supervisor to other male employees.”). In so holding, we relied on the fact that Lack had not introduced any evidence, comparative or otherwise, of gender-based discrimination.

Lack, 240 F.3d at 262 (“Lack, however, failed to offer such evidence — or any other basis for a jury to conclude that Bragg’s conduct was not just sexually tinged harassment, but was instead harassment because of sex.”). Accordingly, far from being “a logical extension” of Title VII principles, the dissent’s analysis sharply diverges from well established case law in the Supreme Court and in virtually every circuit, including this one.

We do not dispute, of course, that sexually explicit banter can, in some circumstances, constitute gender-based discrimination, but the inquiry is always whether “but for” the plaintiffs gender, the harassment would not have occurred — not whether “but for” the plaintiffs gender, she would have felt discriminated against, irrespective of the harasser’s motivation.

Ocheltree has presented no legally sufficient evidence demonstrating that her gender motivated the men’s sexually explicit conduct and conversations (save, perhaps, the mannequin and vulgar song incidents discussed above, supra at 358); i.e., no evidence demonstrating that she would not have been exposed to the same offensive behavior had she been male. Thus, she has not proven that the sexually explicit behavior upon which the dissent relies constitutes genderbased discrimination.

The dissent’s contrary conclusion is premised not only upon an improper analytical framework but also upon an overly rigid view regarding the significance of the fact that the offensive discussions were sexual in content.

The dissent would have us adopt a rule that conversations between males about their heterosexual activities in the presence of a female virtually always constitute sex-based harassment because, according to the dissent’s characterization, these conversations depict women as “sexually subordinate to men.” As the Court stated in Oncale, however, “[w]e have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations.” Oncale, 523 U.S. at 80, 118 S.Ct. 998; see also id. at 81, 118 S.Ct. 998 (“[Title VII] does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex.”).

Rather, the motivation for the harassment must be evaluated in light of “the social context in which particular behavior occurs and is experienced by its target.” Id. at 81, 118 S.Ct. 998. Here, an examination of the relevant context involves an acknowledgment that the offensive conduct took place in a costume production shop where public access is controlled, not a church office, retail shop, bank, or professional office.

In fact, were we to adopt the dissent’s rhetoric and hold that harassment inevitably is because of sex whenever “a workplace is suffused with representations of women as sexual objects,” one wonders how any business that deals routinely with sexually explicit content would escape Title VII liability. Also incorrect is the assumption pervading the dissent that women are more insulted and demeaned by sexual banter about heterosexual sex, and particularly discussions of oral sex, than are men. This assumption is paternalistic and contrary to Title VII itself.

The Fifth Circuit has cautioned against formulating Title VII jurisprudence against the backdrop of such outdated stereotypes, stating: A hostile environment claim embodies a series of criteria that express extremely insensitive conduct against women, conduct so egregious as to alter the conditions of employment and destroy their equal opportunity in the workplace. Any lesser standard of liability, couched in terms of conduct that sporadically ■ wounds or offends but does not hinder a female employee’s performance, would not serve the goal of equality.

In fact, a less onerous standard of liability would attempt to insulate women from everyday insults as if they remained models of Victorian reticence. A lesser standard of liability would mandate not equality but preference for women: it would create incentives for employers to bend over backwards in women’s favor for fear of lawsuits. Now that most American women are working outside the home, in a broad range of occupations and with ever-increasing responsibility, it seems perverse to claim that they need the protection of a preferential standard.

The careful, heightened phrasing of a hostile environment claim, enforceable where working conditions have palpably deteriorated because of sexually hostile conduct, aims to enforce equality, not preference. DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 593 (5th Cir.1995). Similarly, feminist literature recognizes that eliminating sexual content in the workplace is not a viable or valuable goal of hostile work environment jurisprudence and that working women can be, and usually are, as comfortable as are men with sexually explicit conduct and conversations.

Vicki Schultz, Reconceptualizing Sexual Harassment, 107 Yale L.J. 1683, 1794 (1998) (“Sexuality should not be conceptualized solely as a sphere of gender domination, but also as a potential arena of women’s empowerment.”); id. at 1791-92 (“[FJeminism receives a bad rap when workers are fired in the name of a feminist-inspired cause of action for merely talking about sex.... [SJuch firings may sow the seeds of backlash against protecting women from genuinely harmful forms of hostile work environment harassment.”); Barbara Gutek, Sex and the Workplace: The Impact of Sexual Behavior and Harassment on Women, Men, and Organizations 143 tbl.2 (1985) (showing that, even though 28% of a random sample of women working in male-dominated workplaces experienced frequent sexual talk or joking, a very minor percentage of those sampled considered sexual harassment to be a major problem at work); Ellen Carol DuBois & Linda Gordon, Seeking Ecstasy on the Battlefield: Danger and Pleasure in Nineteenth-Century Feminist Sexual Thought, in Pleasure and Danger: Exploring Female Sexuality 31, 32-39 (Carol S.

Vance ed., Pandora Press 1992) (discussing how 19th-century “social purity” feminists’ emphasis on sexuality as a realm of danger and oppression for women replicated sexist and classist tendencies within wider society to separate women into those deserving of protection and those deserving of condemnation); cf. Carlin Meyer, Sex, Sin and Women’s Liberation, 72 Tex.

L.Rev. 1097, 1119-20 (1994) (noting that, in the context of pornography regulation, “Ij'Judges, juries, and most members of the public are likely to find most explicit and ‘deviant’ sexual depictions repell[e]nt and view as degrading not only sexual portrayals that descriptively, humorously, playfully, or ironically depict subordinated women, but also those that are explicitly intended to challenge that subordination”).

Because we view all facts and inferences in favor of Ocheltree, we have not relied on evidence regarding Ocheltree’s participation in the offensive conduct, which, for the most part, she generally denied, to evaluate the sufficiency of the evidence to support the jury’s verdict. Nevertheless, to place in context the dissent’s description of the environment at Scollon Productions, we note there is substantial evidence that Ocheltree does not fit the dissent’s model of femininity.

Several witnesses testified that they heard Ocheltree talk about her “pet name” for her husband’s penis and other sexual matters. (J.A. at 239-40, 278.) These witnesses also testified that Ocheltree brought a picture of herself to work in which she was dressed in a bikini and asked a co-worker if he thought it was sexy. One coworker testified that Ochel-tree brought a picture into work of a wall upon which her husband had written her name in urine.

The coworker also testified about an occasion when two other workers were discussing whether to “use six or eight inch domes” to construct the head of one of the costumes, and Ocheltree “volunteer[ed] that she was not interested in six or eight inches because she had twelve inches waiting for her at home.” (J.A. at 240, 343.) With respect to the body-piercing book, a coworker testified that Ocheltree voluntarily looked at the book “by herself’ while on break. (J.A. at 343.) This evidence would suggest that Ocheltree was not any more sensitive to vulgarity than some of her male counterparts.

Thus, in concluding that “a reasonable woman” would be more offended and demeaned by sexually explicit conversations than a man, the dissent adopts the very stereotypes that Title VII was designed to eradicate. In sum, the dissent misapprehends the controlling law, ignores the context in which the offensive behavior took place, and attempts to transmute Title VII into a neo-Victorian chivalry code designed to protect what the dissent imagines to be the tender sensitivities of contemporary women. Such a requirement of preferential and paternalistic treatment would be a strange

interpretation of statutory language that demands equality. For the above-stated reasons, we are constrained to reject the dissent’s overly broad conception of when harassment constitutes “dis-criminat[ion] ... because of ... sex” in a hostile work environment claim. D. Finally, in response to the dissent’s repeated assertions that we have not given proper deference to the jury’s verdict, it bears mention that the jury should not have been given the opportunity to consider Ocheltree’s claim because, as a matter of law, the evidence of sexual harassment was insufficient to submit the claim to the jury.

The fact that the claim was improperly submitted to the jury does not allow us, as the dissent suggests, to affirm the jury’s verdict on the basis of evidence that is legally insufficient to support the verdict. Our holding in this regard is neither novel nor exceptional; we consistently have granted judgment as a matter of law when presented in other Title VII cases with conduct of the type alleged by Ocheltree.

See, e.g., Lack, 240 F.3d at 258, 262 (overturning a jury verdict on similar evidence presented here); Hartsell, 123 F.3d at 768-69, 772-73 (concluding that Hartsell was not entitled to proceed to trial when coworker referred to Hartsell as a “minivan driving mommy,” and made comments such as “[W]hy don’t you go home and fetch your husband’s slippers like a good little wife, that’s exactly what my wife is going to do for me,” and “We’ve made every female in this office cry like a baby. We will do the same to you.”); Dwyer v.

Smith, 867 F.2d 184, 187-88 (4th Cir.1989) (affirming directed verdict in Title VII case despite evidence that female police officer was subjected to pornographic material placed in her station mailbox and to fellow officers’ sexually explicit conversations); Hopkins, 77 F.3d at 751 (noting that “because of ... sex in Title VII does not mean because of the victim’s ... vulnerability to sexually-focused speech or conduct” (internal quotation marks omitted)); see also Baskerville v.

Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir.1995) (“The concept of sexual harassment is designed to protect working women from the kind of male attentions that can make the workplace hellish for women.... It is not designed to purge the workplace of vulgarity”)- To the extent the dissent would have us employ a more lenient standard due to the extremely distasteful nature of the facts of this case, we agree that there exists “a profound difference in our respective approaches to reviewing a jury verdict.” Post at 380. III.

Regardless of how repulsive we find the behavior to have been during and before Ocheltree’s employment with Scollon Productions, we are compelled to conclude that the conduct does not give rise to an actionable claim for sexual harassment under Title VII.

As we stated in Hopkins: “While we do not approve of [the plaintiffs co-worker’s] apparent willingness to offend and provoke employees with his ambiguously sexual innuendoes, Title VII was not designed to create a federal remedy for all offensive language and conduct in the workplace.... ” Hopkins, 77 F.3d at 754. “There perhaps ‘ought to be a law against’ ... puerile and repulsive workplace behavior ... in order to protect the victims against its indignities and debilitations, but ...

Title VII is not that law.” Id. at 752 (quoting McWilliams, 72 F.3d at 1196). “Ultimately ... our role as courts is limited to faithfully interpreting the statutes enacted by the Congress and signed into law by the President,” Wrightson, 99 F.3d at 144, and Title VII was not enacted as a workplace code for “gentlemanly conduct” or chivalry. Thus, we conclude that the district court erred by denying Scollon Productions’s motion for judgment as a matter of law, and we reverse and remand for the district court to enter judgment in favor of Scollon Productions. REVERSED AND REMANDED WITH INSTRUCTIONS. .

As an appeal from the denial of judgment as a matter of law, we view the facts and any inferences in the light most favorable to Ocheltree, the non-moving party. . To be entitled to the affirmative defense, the employer must first show that no adverse tangible employment action was taken. Faragher, 524 U.S. at 807, 118 S.Ct. 2275; Ellerth, 524 U.S. at 765, 118 S.Ct. 2257. If this preliminary requirement is met, then the company must prove that it exercised reasonable care in preventing and promptly correcting any sexually harassing behavior.

Faragher, 524 U.S. at 807, 118 S.Ct. 2275; Ellerth, 524 U.S. at 765, 118 S.Ct. 2257. It also must show that “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Faragher, 524 U.S. at 807, 118 S.Ct. 2275; Ellerth, 524 U.S. at 765, 118 S.Ct. 2257. . While Scollon Productions argues that the mannequin incident was not directed at Ocheltree, there was evidence suggesting that it was staged for her benefit and that, after she expressed her disgust, the men began laughing.

Thus, drawing all inferences in Ocheltree's favor, we accept that the incident was directed at Ocheltree. The dissent also points to an incident directed at Ocheltree by Locklear, in which Locklear allegedly stated that Ocheltree should "go home and be a housewife.” (J.A. at 129); post at 368. The dissent states, "[a] jury could reasonably see this as another piece of evidence suggesting that Ocheltree experienced harassment because of her sex.” Post at 368.

This suggestion is misplaced, in that Ocheltree's Title VII action was based upon alleged harassment by her coworkers in the shop and by Hirsch; she did not claim at trial or on appeal any harassment by Locklear or Scollon — Scollon's Vice President and President — and the jury did not find any such harassment. (J.A. at 444) (special verdict form stating "[qjuestions relating ONLY to action of Mrs. Ocheltree’s co-workers in the shop" (emphasis added)); (J.A. at 446 ("[qjuestions relating ONLY to the Actions of Harold Hirsch”)).

The dissent states that because Lock-lear was a corporate officer, his "actions are relevant to the ultimate question of whether Scollon Productions can be held liable to Ocheltree for the creation of a hostile work environment.” Post at 369 n. 3. Whether the subject conduct can be imputed to Scollon Productions, however, is a separate issue from whether Ocheltree experienced harassment because of her sex. In any event, consideration of Locklear’s comment would not materially alter our analysis, particularly in light of the context in which the comment was made.

Ocheltree testified, "He said, 'You always have an excuse, I don’t care if someone is dying in your family, you are not to be on the phone and you must be here at work.' He also told me that if I didn’t like it there that I ought to go home and be a housewife, that maybe I am not cut out to be here, to be at this job.” (J.A. at 129.) . The dissent points to testimony by Hodge and Ocheltree wherein each stated that the atmosphere seemed to become "increasingly coarse” throughout their employment at Scol-lon Productions. Post at 367 & n. 2.

As the dissent notes, however, Hodge began working at Scollon Productions "several months after Ocheltree began working there," post at 367; thus, neither Ocheltree nor Hodge could offer probative evidence regarding the atmosphere at Scollon Productions prior to Ocheltree's employment. Additionally, insofar as Hodge's and Ocheltree's testimony supports a finding that the atmosphere at Scollon Productions' became more crude during Ochel-tree’s employment than it was as of the date she was hired there is no evidence, however, that the behavior worsened or became more crude because of Ocheltree's gender.

See infra at 359. Without such evidence, the simple fact that the behavior worsened cannot support the jury's verdict. . The fact that some of the vulgarities are profane references to each gender’s various body parts does not render them inherently abusive or disparaging on account of gender. If that were true, sexually explicit conversations involving obscene terms would invariably constitute gender-related discrimination, a result that we have rejected. Lack v.

Wal-Mart, Inc., 240 F.3d 255, 262 n. 8 (4th Cir.2001) ("Facially sexual remarks must be evaluated according to their common usage— however vulgar the usage may be."). . In concluding that Hodge testified to a permissible "inference” instead of objectionable speculation, post at 371 n. 4, the dissent conveniently ignores the precise language used by Hodge. (J.A. at 202 ("Now, that is just speculation....”).) .

Because we conclude that the gender-based conduct was not sufficiently severe or pervasive for Ocheltree to establish a prima facie case of sexual harassment under Title VII, we do not reach the questions of whether the conduct could be imputed to Scollon Productions or whether Scollon Productions is entitled to operation of the Faragher/Ellerth affirmative defense. Faragher, 524 U.S. at 807, 118 S.Ct. 2275; Ellerth, 524 U.S. at 765, 118 S.Ct. 2257. . The dissent states that a detailed recitation of every aspect of the crude and offensive behavior that took place at Scollon is necessary to a proper analysis.

Post at 367. It then goes on, however, to conclude that "much of" the detailed behavior cannot be viewed as gender-based discrimination in this case. Post at 373. Thus, one questions whether the detailed description genuinely is required for a proper legal analysis. .Title VII prohibits intentional sex discrimination as well as discrimination that has a disparate impact on a particular sex. Sexual harassment is a "distinct ... form” of intentional sex discrimination. DeClue v.

Central Illinois Light Co., 223 F.3d 434, 437 (7th Cir.2000); see also Ellerth, 524 U.S. at 756, 118 S.Ct. 2257 ("Sexual harassment under Title VII presupposes intentional conduct.”). Ocheltree litigated this case only as a sexual harassment case and not as a disparate impact case. DeClue, 223 F.3d at 437; supra at 354. .

By misapprehending the nature of the "discriminat[ion] ... because of ... sex" inquiry, the dissent incorrectly assumes that the question of whether Ocheltree "would have been exposed to the same atmosphere had she been male” is somehow distinct from the question of " 'whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.’ " Post at 373 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (Ginsburg, J., concurring)).

As the above-cited cases make clear, however, there is no material difference between the two questions; once the former has been answered in the negative, the latter necessarily also has been answered in the negative. Wrightson v. Pizza Hut of America, Inc., 99 F.3d 138, 142 (4th Cir.1996) ("An employee is harassed or otherwise discriminated against 'because of his or her sex if, 'but-for' the employee’s sex, he or she would not have been the victim of the discrimination.”); Hopkins, 77 F.3d at 750 (opinion of Niemeyer, J.) (citing Bundy v.

Jackson, 641 F.2d 934, 942 n. 7 (D.C.Cir.1981) ("the question is one of but-for causation: would the complaining employee have suffered the harassment had he or she been of a different gender”)). Nor can we accept credit for "committing] this court to a course” that focuses on the alleged harasser’s motivations rather than the unintended consequences of his actions. Post at 375.

To the contrary, this course long ago was set out by the Supreme Court and prior panels of this court, and it is our duty to apply the well-established analytical framework to the facts before us, regardless of how unsavory those facts may be. .

To the extent the dissent would have us rely exclusively on the effects of the offensive behavior that took place at Scollon Productions, it notably avoids discussing the lack of any allegation or evidence that Ocheltree's work or productivity was affected negatively by the conduct or that Ocheltree ever sought to be transferred to another area of Scollon Productions where other women worked.

In fact, she testified that, even with consideration of the offensive conduct, she "loved" her job. (J.A. at 114.) Also significant to any “effects'' inquiry is Ocheltree's failure to mention the ongoing harassment to Scollon or Locklear, particularly in light of her previous experience involving a complaint about offensive behavior. In June 1994, shortly after Ocheltree was hired, Steve Zouras, one of Ocheltree's coworkers, reported to Scollon that another employee had told a sexually explicit joke to Ocheltree and that she was offended by the joke.

Locklear asked Ocheltree about the incident, and she confirmed it. The offending employee immediately was fired. Ocheltree acknowledged that, from Scollon and Lock-lear's handling of this complaint, she was aware that Scollon or Locklear would redress her grievance if notified of the behavior. Ocheltree testified that she saw Scollon once a week in the production shop and Locklear more than once a week. Yet, Ocheltree never notified either that the offensive behavior was continuing or worsening.

Supra at 354-55 (noting that Ocheltree indicated a desire to speak with Scollon and Locklear but never informed either about the nature of her complaint). .The dissent asserts that it does not suggest that conversations about heterosexual behavior are automatically demeaning to women but that the "tone” and "tenor” of the conversations must be evaluated to determine whether gender-based discrimination exists.

Nevertheless, it cites only the frequency and the sexual content of the conversations in support of its conclusion that many of the discussions that took place at Scollon Productions constituted gender-based harassment. Post at 374. The dissent seems to suggest a rule whereby a reviewing court would affirm a finding of gender-based discrimination once a certain number of conversations about heterosexual behavior occur in the workplace in the presence of a female. Thus, Title VII would become a workplace code for "gentlemanly conduct" in the presence of women. .

This fact is significant to a proper contextual analysis because in an environment, like the production shop where public access is controlled offensive behavior among the workers may be more prevalent than it otherwise would be in an environment easily accessible by the public. We do not hold or intimate, as the dissent suggests, that "women in blue collar jobs must put up with conduct that women who work in banks or professional offices need not tolerate.” Post at 378 n. 8. .

The dissent also fails to explain why, if women are inevitably demeaned by conversations about heterosexual sex, men would not have felt equally demeaned or harassed by the graphic conversations about homosexual sex that took place at Scollon Productions. . Ocheltree testified that she told her husband about the offensive conduct, and he told her "well, it is a male atmosphere, just suck it up.” (J.A. at 114, 154.) She also testified that she used the "f — " word, but not "in a sexual way." (J.A. at 130.) .

Insofar as we conclude that Ocheltree failed to establish the essential elements of a sexual harassment claim, we likewise reverse the district court's denial of Scollon Productions’s motion to set aside the jury's award of punitive damages.