Meyers, Roman, Friedberg & Lewis has a Coronavirus Response Team. Contact Jon Hyman to help with how your business should
continue to respond to this national emergency.

Thursday, May 1, 2008

Further reflections on Reeves v. C.H. Robinson Worldwide

I've been thinking a lot about the Reeves case, because something about it just hasn't been sitting right with me. I think I've finally put my finger on it. When a female employee or women in general are not the target of the offensive conduct, finding that the harassment is "based on" sex because women are more likely to be offended by the conduct then men confuses the intent of the alleged harasser with whether the plaintiff welcomed the conduct.
To establish a prima facie case of sexual harassment, an employee must prove, among other factors, that the sexual harassment was unwelcome and that the harassment was based on sex. By injecting a gender's perceived sensitivities into the equation, the court makes the intent of the conduct irrelevant. In doing so, the Reeves court has essentially created a general code of workplace civility. As explained in Yukins v. First Student, Inc., another case in which a female employee claimed sexual harassment based on conduct that offended her but was not targeted at her:
More important still, the cat-rape anecdote and the "fat ass" comment are examples of comments that while they may, depending on their context, offend in respects relevant to Title VII, have only a tangential intersection with the plaintiff. When the manager called one of the woman drivers a "fat ass," he may have been using a term that he would not have used of a man, but what if anything was he saying about the plaintiff, either directly or indirectly? And what if a male coworker is believed ... to be watching pornography on his office computer? It wasn't any of the plaintiff's business what the manager was looking at on his computer. It is not as if pornographic pictures were exhibited on the walls of the work-place or emailed to the plaintiff. ... The relation between the manager's watching pornography on his own screen and the plaintiff's working environment was almost as attenuated as if she had learned that he watches pornography on his computer at home. ...
The American workplace would be a seething cauldron if workers could with impunity pepper their employer and eventually the EEOC and the courts with complaints of being offended by remarks and behaviors unrelated to the complainant except for his having overheard, or heard of, them. The pluralism of our society is mirrored in the workplace, creating endless occasions for offense. Civilized people refrain from words and conduct that offend the people around them, but not all workers are civilized all the time. Title VII is not a code of civility.