—noting that employer will not usually be liable under respondeat superior for employee's racial harassment because it "would be the rare case where racial harassment... could be thought by the author of the harassment to help the employer's business

"The probative value of other discriminatory acts depends... on the nature of the discrimination charged."

Consistent with this principle, an employer who has reason to know that one of his employees is being harassed in the workplace by others on grounds of race, sex, religion, or national origin, and does nothing about it, is blame-worthy.

Pervasive sexual harassment can suffice to create constructive notice, but it is only when the incidents are "so egregious, numerous, and concentrated as to add up to a campaign of harassment that the employer will be culpable for failure to discover what is going on."

"[W] hen a coworker engages in harassing conduct, an employer is liable only if `management-level employees knew, or in the exercise of reasonable care should have known, about the campaign of harassment.'"

—is unwilling to do so in this case because that would confer a "discrimination bonus" on defendant by allowing it to pay plaintiff less than it would have paid her if it had never discriminated against her in the first place.

If, indeed, the cases did not rest, at least implicitly, on the notion that such harassment falls outside the scope of employment, their liability issues would have turned simply on the application of the scope-of-employment rule.

—finding that evidence of racial epithets was admissible under rule 403 to show racially hostile work environment

This understanding, that the employer is directly not derivatively liable, and the underlying "knew or should have known" standard, are consistent with the law in other circuits.

Whether to deduct unemployment compensation from an award of back pay is within the discretion of the trial court.