II.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review the district court's decision to grant summary judgment de novo. See Robi v. Reed, 173 F.3d 736, 739 (9th Cir.), cert. denied - U.S. , 120 S.Ct. 375, 145 L.Ed.2d 293 (1999). In reviewing an order denying or granting summary judgment, we. must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the substantive law. See id.

III

[1] Title VII prohibits employers from discriminating against an employee because that employee "has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). A postal employee may bring suit under § 2000e-3(a) pursuant to 42 U.S.C. § 2000e-16. See Ayon v. Sampson, 547 F.2d 446, 450 (9th Cir.1976).

[2-4] To make out a prima facie case of retaliation, an employee must show that (1) he engaged in a protected activity; (2) his employer subjected him to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse action. See Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir.1994). If a plaintiff has asserted a prima facie retaliation claim, the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason for its decision. Id. at 1464-1465. If the defendant articulates such a reason, the plaintiff bears the ultimate burden of demonstrating that the reason was merely a pretext for a discriminatory motive. Ibid

[5, 6] The parties do not contest that Ray engaged in protected activities when he complained of the treatment of women at the Willits Post Office both informally and formally with the EEOC.3 The heart of this dispute is whether Ray suffered cognizable adverse employment actions. Ray asserts that he suffered from changes in workplace policy and pay, as well as from a hostile work environment. We first examine the definition of an adverse employment action. We then discuss whether the changes in workplace policy and pay constitute adverse employment actions, and whether Ray has established a causal link between his protected activities and those adverse employment actions. Finally, we examine whether Ray's allegation that he was subjected to a hostile work environment in retaliation for engaging in protected activity is cognizable under the anti-retaliation provisions of Title VII.

IV

The circuits are currently split as to what constitutes an adverse employment action. Although we have yet to articulate a rule defining the contours of an adverse employment action, our prior cases situate us with those circuits that define adverse employment action broadly. Other circuits that define adverse employment action broadly are the First, Seventh, Tenth, Eleventh and D.C. Circuits. An intertmediate position is held by the Second and Third Circuits. The most restrictive view of adverse employment actions is held by the Fifth and Eighth Circuits. Below, we set forth the Ninth Circuit's position within this split, and explain the case law in the other circuits. Then, we examine what guidelines we should follow in analyzing whether an action constitutes an adverse employment action.

[7] We have found that a wide array of disadvantageous changes in the workplace constitute adverse employment actions. While "mere ostracism" by co-workers does not constitute an adverse employment action, see Strother v. Southern California Permanente Medical Group, 79 F.3d 859, 869 (9th Cir.1996), a lateral transfer does. In Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir.1987), we held that "[t]ransfers of job duties and undeserved performance ratings, if proven, would constitute 'adverse employment decisions." The Yartzoff decision was in line with our earlier decision in St. John v. Employment Development Dept., 642 F.2d 273, 274 (9th Cir. 1981), where we held that a transfer to another job of the same pay and status may constitute an adverse employment action.⁴

Similarly, in Hashimoto v. Dalton, 118 F.3d 671, 676 (9th Cir.1997), we found that the dissemination of an unfavorable job reference was an adverse employment action "because it was a `personnel action' motivated by retaliatory animus." We so found even though the defendant proved that the poor job reference did not affect the prospective employer's decision not to hire the plaintiff: "That this unlawful personnel action turned out to be inconsequential goes to the issue of damages, not liability." Id.

In 'Strother', we examined the case of an employee who, after complaining of discrimination, was excluded from meetings, seminars and positions that would have made her eligible for salary increases, was denied secretarial support, and was given a more burdensome work schedule. 79 F.3d at 869. We determined that she had suffered from adverse employment actions. Id.

These cases place the Ninth Circuit in accord with the First, Seventh, Tenth, Eleventh and D.C. Circuits. These Circuits all take an expansive view of the type of actions that can be considered adverse employment actions. See Wyatt v. City of Boston, 35 F.3d 13, 15-16 (1st Cir.1994) (adverse employment actions include "demotions, disadvantageous transfers or assignments, refusals to promote, unwarranted negative job evaluations and toleration of harassment by other employees"); Knox v. Indiana, 93 F.3d 1327, 1334 (7th Cir.1996) (employer can be liable for retaliation if it permits "actions like moving the person from a spacious, brightly lit office to a dingy closet, depriving the person of previously available support services ... or cutting off challenging assignments"); Corneveaux v. CUNA Mutual Ins. Group, 76 F.3d 1498, 1507 (10th Cir.1996) (employee demonstrated adverse employment action under the ADEA by showing that her employer "required her to go through several hoops in order to obtain her severance benefits"); Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir.1996) (malicious prosecution, by former employer can be adverse employment action); Wideman v. Wal-MartStores, Inc., 141 F.3d 1453, 1456 (11th Cir.1998) (adverse employment actions include an employer requiring plaintiff to work without lunch break, giving her a one-day suspension, soliciting other employees for negative statements about her, changing her schedule without notification, making negative comments about her, and needlessly delaying authorization for medical treatment); Passer v. American Chemical Soc., 935 F.2d 322, 330-331 (D.C.Cir.1991) (employer's cancellation of a public event honoring an employee can constitute adverse employment action under the ADEA, which has an anti-retaliation provision parallel to that in Title VII).

The Second and Third circuits hold an intermediate position within the circuit split. They have held that an adverse action is something that materially affects the terms and conditions of employment. See Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir.1997) ("retaliatory conduct must be serious and tangible enough to alter an employee's compensation, terms, conditions, or privileges of employment ... to constitute [an] `adverse employment action'"); Torres v. Pisano, 116 F.3d 625, 640 (2nd Cir.1997) (to show an adverse employment action employee must demonstrate "a materially adverse change in the terms and conditions of employment") (quoting McKenney v. New York City Off-Track Betting Corp., 903 F.Supp. 619, 623 (S,D.N.Y.1995)).

The Fifth and Eighth Circuits, adopting the most restrictive test, hold that only "ultimate employment actions" such as hiring, firing, promoting and demoting constitute actionable adverse employment actions. See Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir.1997) (only "ultimate employment decisions" can be adverse employment decisions); Legerderber v. Stangler, 122 F.3d 1142, 1144 (8th Cir.1997) (transfer involving only minor changes in working conditions and no reduction in pay or benefits is not an adverse employment action).

The Government urges us to turn from our precedent, and to adopt the Fifth and Eighth Circuit rule that only "ultimate employment actions" such as hiring, firing, promoting and demoting constitute actionable adverse employment actions.5 But we cannot square such a rule with our prior decisions. Actions that we consider adverse employment actions, such as the lateral transfers in Yartzoff and St. John, the unfavorable reference that had no effect on a prospective employer's hiring decisions in Hashimoto, and the imposition of a more burdensome work schedule in Strother are not ultimate employment actions, Nor, for that matter, does the test adopted by the Second and Third Circuits comport with our precedent. While some actions that we consider to be adverse (such as disadvantageous transfers or changes in work schedule) do "materially affect the terms and conditions of employment," others (such as an unfavorable reference not affecting an employee's job prospects) do not.

[8,9] The EEOC has interpreted "adverse employment action" to mean "any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." EEOC Compliance Manual Section 8, "Retaliation," T8008 (1998). Although EEOC Guidelines are not binding on the courts, they "constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance." Meritor Savings Bank v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91 L.Ed.2d 499 (1986) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)); see also Gutierrez v. Municipal Court, 838 F.2d 1031, 1049 (9th Cir.1988). We find the EEOC test to be consistent with our prior holdings, and with the holdings in the First, Seventh, Tenth, Eleventh and D.C. Circuits.

[10] The EEOC test covers lateral transfers, unfavorable job references, and changes in work schedules. These actions are all reasonably likely to deter employees from engaging in protected activity. Nonetheless, it does not cover every offensive utterance by co-workers, because offensive statements by co-workers do not reasonably deter employees from engaging in protected activity.

As we stated in Hashimoto, the severity of an action's ultimate impact (such as loss of pay or status) "goes to the issue of damages, not liability." 118 F.3d at 676. Instead of focusing on the ultimate effects of each employment action, the EEOC test focuses on the deterrent effects. In so doing, it effectuates the letter and the purpose of Title VII. According to 42 U.S.C. § 2000e-3(a), it is unlawful "for an employer to discriminate" against an employee in retaliation for engaging in protected activity. This provision does not limit what type of discrimination is covered, nor does it prescribe a minimum level of severity for actionable discrimination. See Knox 93 F.3d at 1334 ("There is nothing in the law of retaliation that restricts the type of retaliatory act that might be visited upon an employee who seeks to invoke her rights by filing a com plaint."). We agree with the D.C. Circuit, which noted in Passer that:

Because the EEOC standard is consistent with our prior case law and effectuates the language and purpose of Title VII, we adopt it, and hold that an action is cognizable as an adverse employment action if it is reasonably likely to deter employees from engaging in protected activity.⁶

We now turn to the question of whether the actions alleged by Ray constitute adverse employment actions under this standard, whether Ray has provided sufficient evidence of a causal link between his protected activities and the adverse employment actions, and whether he can overcome the USPS' proffered nondiscriminatory reasons for the actions.

V

[111] Ray claims that, in retaliation for his complaints, his supervisors eliminated the Employee Involvement program, eliminated the flexible start-time policy, instituted lockdown procedures, and reduced his workload and his pay — disproportionately to the reductions faced by other employees.⁷

We conclude that all four qualify as adverse employment actions. The actions decreased Ray's pay, decreased the amount of time that he had to complete the same amount of work, and decreased his ability to influence workplace policy, and thus were reasonably likely to deter Ray or other employees from complaining about discrimination in the workplace.

[12] We also find that Ray has established a causal link between his protected activity and the employment actions by demonstrating that each action was implemented close on the heels of his complaints. That an employer's actions were caused by an employee's engagement in protected activities may be inferred from "proximity in time between the protected action and the allegedly retaliatory employment decision." Yartzoff, 809 F.2d at 1371.

[13] What remains, therefore, is an examination of whether Ray has produced sufficient evidence supporting his contention that the nondiscriminatory reasons proffered by the Postal Service are pretexts for retaliation. We find that he has. The USPS alleges that Carey and Briggs eliminated flexible starting times because of an increase in the amount of mail and because of later delivery of the mail to the post office. However, it is undisputed that Postmaster Carey announced publicly that he was instituting the fixed start time in response to Ray's complaints. Furthermore, the USPS' assertion is belied by the fact that even after the policy change several of the postal carriers continued to arrive at work early with official sanction.

The Postal Service also asserts that Carey instituted the lockdown procedures in response to a death threat, not for retaliatory reasons. Ray contends that this is false, and points to the fact that his supervisors continued the lockdown even after the postal inspector had stated definitively that there was no death threat. Also supervisory employees continued to say publicly that Ray had made a threat when they knew that that was not the case. We are sensitive to the Postal Service's desire to protect its employees and customers from violence, and nothing should prevent management from taking precautionary steps. Certainly, locking the doors ensured that unauthorized persons could not enter the building, and thus enhanced security. Nonetheless, a lockdown such as that implemented by the postal service seems unlikely to prevent harm from a disgruntled employee working inside the building, nor would the lockdown stop a violent postal employee from entering the post office, since an employee would probably open the door from inside for any coworker; indeed, if anything, the lockdown ensured that employees would find it more difficult to leave. Although the reasons for the lockdown present a close question, we conclude that Ray has raised a genuine issue of material fact, and that there is sufficient evidence to survive summary judgment on this claim.

Finally, the USPS claims that the reduction in Ray's pay was part of across-the-board cuts, and was nondiscriminatory. However, Ray has sufficiently rebutted this assertion by demonstrating that he suffered the greatest loss in pay.

We therefore hold that, viewing the evidence in the light most favorable to Ray, the district court erred in granting summary judgment on the retaliation. claim.

VI

[14] We now examine whether Ray's allegation that he was subjected to a hostile work environment is cognizable under the anti-retaliation provisions of Title VII. We have not previously decided whether a hostile work environment may be the basis for a retaliation claim under Title VII. See Gregory v. Widnall, 153 F.3d 1071, 1075 (9th Cir.1998). However, the Second, Seventh and Tenth Circuits have held that an employer may be liable for a retaliation-based hostile work environment. See Richardson v. New York State Dept of Correctional Serv., 180 F.3d 426, 446 (2nd Cir.1999) ("co-worker harassment, if sufficiently severe, may constitute adverse employment action so as to satisfy the second prong of the retaliation prima facie case"); Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 886 (7th Cir.1998) ("retaliation can take the form of a hostile work environment"); Gunnell v. Utah Valley State College, 152 F.3d 1253, 1264 (10th Cir.1998) ("co-worker hostility or retaliatory harassment, if sufficiently severe, may constitute `adverse employment action' for purposes of a retaliation claim").

We agree with our sister circuits. Harassment is obviously actionable when based on race and gender. Harassment as retaliation for engaging in protected activity should be no different — it is the paradigm of "adverse treatment that is based on retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." EEOC Compliance Manual  ¶ 8008.

[15,16] Harassment is actionable only if it is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). It must be both objectively and subjectively offensive. See Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). To determine whether an environment is sufficiently hostile, we look to the totality of the circumstances, including the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. (quoting Harris, 510 U.S. at 23, 114 S.Ct. 367).

Not every insult or harassing comment will constitute a hostile work environment. In Gregory v. Widnall, we rejected a claim of a hostile work environment based on "[a] single drawing of a monkey on a memo circulated by senior NCO's, accompanied by the verbal explanation that it was intended to remind officers not to `get the monkey off their back' by passing their responsibilities to others." 153 F.3d at 1074-75; see also Strother, 79 F.3d at 869 ("mere ostracism in the workplace is not enough to show an adverse employment decision").

[17] Repeated derogatory or humiliating statements, however, can constitute a hostile work environment. In Hacienda Hotel, for example, we found that the plaintiffs had demonstrated sufficiently "severe or pervasive" harassment by demonstrating that one supervisor "repeatedly engaged in vulgarities, made sexual remarks, and requested sexual favors" while another supervisor "frequently witnessed, laughed at, or herself made these types of comments." 881 F.2d at 1515. And in Draper v. Coeur Rochester Inc., 147 F.3d 1104, 1109 (9th Cir.1998), we found that the appellant's allegations that her supervisor had regularly made sexual remarks about her throughout her employment, and that he laughed at her complaints to him, raised a genuine factual issue regarding a hostile work environment.

[18] Here, after Ray made his complaint about the treatment of women at the Willits Post Office, he was targeted for verbal abuse related to those complaints for a period lasting over one and half years. His supervisors regularly yelled at him during staff meetings; they called him a "liar," a "troublemaker," and a "rabble rouser," and told him to "shut up." Additionally, Ray was subjected to a number of pranks, and was falsely accused of misconduct.

Not only did his supervisors make it harder for Ray to complete his own tasks, they made Ray an object lesson about the perils of complaining about sexual harassment in the workplace. Carey and Briggs made it clear to the other staff members that disadvantageous changes in management style were due to Ray's complaints. Carey linked the change to a fixed starting time to Ray's letter to Carey's supervisor. He canceled the Employee Involvement meetings in response to Ray's complaints. Carey and Briggs also fostered animus in other employees whose working conditions were affected. Other employees began to distance themselves from Ray, and some stopped talking to him. In November of 1995, the difficulties at work rose to such a level that Ray took stress leave from his job.

We conclude that Ray has presented evidence that is, for purposes of summary judgment, sufficient to raise a genuine issue of fact as to whether he was subjected to a hostile work environment. We therefore hold that the district court erred in granting summary judgment on the hostile work environment-based retaliation claim.

VII

For the foregoing reasons, we REVERSE the district court grant of summary judgment and REMAND for a trial on the merits of Ray's retaliation claim.

Postscript:

The 9th Circuit panel did not pursue the most explosive aspect of this controversy. The USPS accused me of a verbal death threat upon their personnel, which was quickly adjudged to be false, but which they continued to publicize. This action was in violation of California statutory law, which prohibits false charges of threatening homicide. Thus as an additional aspect of the hostile work environment, my superiors had unlawfully slandered my reputation. In my view, had the USPS appealed the judgment from the U.S. District Court of Appeals, Sacramento, which was bound by the 9th Circuit precedent to rule in my favor, they would have faced a national scandal in the U.S. Supreme Court. You can't get more hostile than falsely accusing an employee of threatening to kill you. Consequently, the USPS settled on my terms, leaving the precedent in place. It has since been referenced hundreds of times in defense of otherwise legally helpless workers who had the courage to oppose punitive corporate and bureaucratic power.

Footnotes: