Ninth Circuit
Expands Behavior that
May Constitute Sexual Discrimination
In
a case with far-reaching implications for employers, the Ninth Circuit
Court of Appeals recently ruled that workplace abuse that does not involve
sexually explicit or sexually offensive comments can still constitute
sexual discrimination if the type, quantity, and effect of the abuse is different for women employees than for men. E.E.O.C.
v. National Education Association, No. 04-35029 (9th Cir. Sept. 2). The
court ruled that whether a "reasonable woman" was offended by the
conduct is the standard, even in situations where the behavior did not
involve sexual content. Thus, employers can be liable for a much
broader range of behaviors.
Abusive Manager Frequently Berated Female Employees
The
case was brought by three female employees of the Anchorage, Alaska
office of the National Education Association (NEA) - - a labor union. The
women sued claiming that the office's executive director created a
sex-based hostile work environment. The Equal Employment Opportunity
Commission (EEOC) filed a lawsuit on their behalf.
The
employees alleged that the Executive Director, Thomas Harvey, frequently
shouted at the female employees in a loud and hostile manner with little or
no provocation. The shouting was "frequent, profane and often
public."
The
conduct was often physically hostile. Harvey
regularly invaded the female employee's "personal space." Harvey would also
shake his fist or his fingers at the female employees. On one occasion, Harvey lunged across
the table at one of the plaintiffs. On another occasion, one of the
plaintiffs testified that he came up behind her, grabbed her shoulders and
yelled, "get back to your office." One of the employees filed a
police report about his behavior.
The
female employees were intimidated by the conduct. They felt physically
threatened and anxious. One of the female employees eventually resigned.
The
male employees in the office confirmed the conduct. One male employee
testified to the "general fear" of the women in the office.
There
was evidence that Harvey
was an "equal opportunity harasser" and also raised his voice
with the men. However, the men did not feel as anxious over the conduct or feel
physically threatened. One male employee described it more as a
"bantering back and forth."
There
was, however, no evidence that Harvey
ever made any sexually explicit or lewd comments or sexual overtures to the
female employees. There were no allegations that he made comments about
their bodies, sexual jokes or sexual epithets.
Lower Court Ruled for the Employer
The
women's claims were dismissed by the district court on summary judgment.
The district court held that there was no evidence that Harvey's conduct was "because of
"sex" within the meaning, and in violation, of Title VII. The
district court held that the "because of sex" element of a Title
VII sexual discrimination case required that the conduct be either of a sexual
nature or motivated by sexual animus.
The
district court recognized that Harvey's
conduct was rude and unpleasant, but held that there was no evidence that
any of the exchanges were motivated by "lust" or by "sexual
animus toward women as women." The district court also noted the fact
that there was not any evidence that Harvey
was trying to drive the women out of the organization. Thus, the district
court granted summary judgment for the employer.
The
women appealed, and the Ninth Circuit reversed.
Look at Different Effects on Women
The
Ninth Circuit ruled that the lower court erred in holding that there must
be behavior of a sexual nature or sexual animus to prevail on a sex-based
discrimination claim. "There is no legal requirement that hostile acts
be overtly-sexual or gender-specific in content, whether marked by
language, by sex or gender stereotypes, or by sexual overtures."
Critically,
the court held that the "ultimate question is whether [the] behavior
affected women more aversely than it affected men." This involves an
analysis of whether:
The behavior toward women versus men was qualitatively different.
- Using the
"reasonable woman" standard, was there a different effect –
both subjective and objective – on the women? Did the women
subjectively find the behavior more intimidating, and would a
reasonable woman do so? If so, the conduct in question treats women
differently, even if not facially sex- or gender-specific.
The behavior toward women versus men was quantitatively different.
- Were the women
more frequently exposed to harassing conduct then the men?
The
court noted that these are fact intensive questions that could, as here,
preclude summary judgment for employers. The court concluded that in this
case there was sufficient evidence for the case to go to a jury to
determine if the conduct was sex discrimination.
Expands Employer Liability
This
case may make it more difficult for employers to get their cases dismissed
- - especially frivolous ones. While the court said that some cases might
not survive summary judgment because the quantitative difference in
treatment of the sexes will be too slight, the question of the subjective
effect of the harassment may make the case more difficult to dispose of
pre-trial.
Critically,
employers need to take steps to make certain that abusive or bullying
behavior in the workplace is immediately dealt with. Managers should be
trained that abusive or hostile behavior can be a form of sexual
discrimination and can create liability for the company. While it should be
standard policy in the first place to nip abusive conduct in the bud, it is
now even more critical. Written policies should state that abusive conduct
is grounds for discipline or termination.
Employees
should know that:
- Harassment does
not have to be sexual in nature to be unlawful - - if the conduct has
a subjectively or objectively more adverse effect on women it could
create liability.
- The "equal
opportunity" harasser will not be tolerated in the workplace.
- Abusive workplace
behavior will result in discipline, up to, and including, termination.
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