Wednesday, April 30, 2008

Is exposure to generalized offensive comments enought to create a hostile environment?

Yesterday, we examined Reeves v. C.H. Robinson Worldwide in discussing whether an employer has an obligation to ban the use of radios in the workplace to prevent harassment. Today, we'll look at the other interesting aspect of the case, whether conduct that is offensive to women, but not targeted at them, constitutes sexual harassment.

Reeves alleged that the following sexually offensive language permeated the work environment each and every day for nearly 3 years. Notably, Reeves did not allege that any of the offending conduct was directed at her specifically. Instead, it appears that she was subjected to the same crude language as her male co-workers.

For example, one of Reeves's co-workers frequently used sexually crude language that offended her, including:

  • Often using the phrase "f**ing bitch" or "f***ing whore" after hanging up the phone.
  • Once calling the only other female employee in the office a "bitch" after she had left the room, and he once remarked that she had "a big ass."
  • Telling frequent sexual jokes, including one for which the punch-line was "f**k your sister and your mother is a whore."
  • Once calling another female a "c**t."

A different co-worker also offended Reeves with the use of sexually crude language. Reeves overheard that employee talk about:

  • "Getting off" in reference to masturbation.
  • A song that referenced "women’s teeth on a man's d**k."
  • An experience in a hotel with naked women.

The branch manager, who was Reeves’s direct supervisor, also made comments that offended Reeves.

  • He once referred to a former female co-worker as a "lazy, good-for-nothing bitch."
  • Another time he asked Reeves to "talk to that stupid bitch on line four," referring to a female customer.
  • He once said, referring to the only female employee other than Reeves, "[s]he may be a bitch, but she can read."
  • On another occasion he said of the same employee, "[s]he's got a big one," referring to her buttocks.

In hostile work environment cases, the conduct is actionable if it "because of" sex or "based on" sex. To satisfy the "based on" element, a plaintiff must essentially show "that similarly situated persons not of [her] sex were treated differently and better." According to the Court:

The specific question that faces us here is whether harassment in the form of offensive language can be "based on" the plaintiff's membership in a protected group even when the plaintiff was not the target of the language and other employees were equally exposed to the language.

The Court concluded that Reeves could pursue her sexual harassment claim because the alleged conduct was "based on" sex:

The language in the CHRW office included the "sex specific" words "bitch," "whore," and "c**t" that ... may be more degrading to women than men. The subject matter of the conversations and jokes that allegedly permeated the office on a daily basis included male and female sexual anatomy, masturbation, and female pornography, all of which was discussed in a manner that was similarly more degrading to women than men. The radio programming that Reeves claims was also similar. Therefore, even if such language was used indiscriminately in the office such that men and women were equally exposed to the language, the language had a discriminatory effect on Reeves because of its degrading nature.

Thus, the Court was not persuaded that Reeves's equal exposure to the offensive conduct mitigated against a finding of a hostile environment. It concluded that the conduct was "based on" sex because the sex specific words "may be more degrading to women than men."

This holding may take sexual harassment law in a new direction. Indeed, in the 6th Circuit (which includes Ohio), "based on sex" has an entirely different meaning. According to Williams v. GMC:

[H]arassing behavior that is not sexually explicit but is directed at women and motivated by discriminatory animus against women satisfies the "based on sex" requirement. ... The conduct underlying a sexual harassment claim need not be overtly sexual in nature. Any unequal treatment of an employee that would not occur but for the employee's gender may, if sufficiently severe or pervasive ... constitute a hostile environment in violation of Title VII. The myriad instances in which Williams was ostracized, when others were not, combined with the gender-specific epithets used, such as "slut" and "f***ing women," create an inference, sufficient to survive summary judgment, that her gender was the motivating impulse for her co-workers' behavior.

The key difference between Reeves and Williams is that in Williams, the plaintiff claimed that she was specifically ostracized on account of her gender, and used the use of gender-specific epithets in the workplace as evidence of the sex-based animus. In Reeves, there was no claim of ostracism, and the only evidence of unlawful conduct was the epithets to which all employees, male and female, were exposed.

Reeves also bases its decision on a degree of sexual relativism. In other words, even though the conduct was not directed at Reeves, or even women in general, it was nevertheless "based on" sex because women, as the gentler gender, would be more prone to be offended by such conduct. Such a rule will require employers to act as morality police to protect the fairer sex from any exposure to words that might offend their delicate nature. I have no doubt that the woman noted in the Reeves decision who was directly called a "c**t" has a viable sexual harassment claim. I have grave concerns, though, whether Ms. Reeves should enjoy the same right.

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