1. FEATURE STORY:
SEXUAL HARASSMENT CLAIM SURVIVES, DESPITE THE FACT THAT OFFENSIVE LANGUAGE TARGETED OTHERS
A warning to employers who allow their employees to use blue language and engage in sexually offensive banter with impunity: A federal circuit court recently allowed a female employee to proceed with her sexual harassment claim despite the fact that the offensive language used by her co-workers did not specifically refer to her.
The employee alleged that she worked in an environment in which her male co-workers regularly used terms such as "b*tch" and "wh*re" to refer to other female employees and to female customers. On top of that, her co-workers listened to a sexually charged morning radio program every day.
The employee's sexual harassment claim was dismissed by a lower court, which ruled that the co-workers' conduct was not "based on" the employee's sex. On appeal, the 11th Circuit Court (Alabama, Florida, Georgia) considered whether harassment in the form of offensive language could be "based on" the employee's gender even when she was not the target of the language and other employees were equally exposed to the language.
The court answered in the affirmative. It looked to some of its older rulings in making its decision. First, it followed previous rulings that allowed the use of racial epithets that weren't used directly in reference to the employee to support a racially hostile environment claim. "It is well established that racially offensive language need not be targeted at the plaintiff in order to support a Title VII hostile work environment claim," said the court.
Second, it cited a 2007 decision that acknowledged that the use of sex-specific profanity, e.g., b*tch, tr*mp, and sl*t, is more degrading to women than men, and, thus, could be used to evaluate a sexual harassment claim. "[E]ven 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 [the female employee] because of its degrading nature."
The court also held that the employee satisfied the "severe or pervasive" standard for proving the existence of an illegal hostile environment. While none of the incidents standing alone are severe enough to be actionable, the daily exposure to the language and radio program was evidence of pervasive conduct. (Reeves v. C.H. Robinson Worldwide, Inc., 11th Cir., No. 07-10270, 2008)
This case deals a blow to employers who try to explain away alleged harassment by arguing that the conduct was not based on the complaining employee's gender because the employee was not the target of the conduct and all employees were equally exposed to the conduct. Lessons to be learned: An employee does not have to be the target of offensive language in order to have a valid harassment claim, and a workforce that is equally exposed to offensive language does not automatically mean employees are equally affected.
Do your supervisors understand when offensive behavior has crossed the line from inappropriate to illegal, and, thus, when they need to step in and put a stop to it? Make sure they do by signing them up for AHI's Preventing Sexual Harassment supervisor training webinar, scheduled for June 11.
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