In an apparent re-run of Reeves v. C.H. Robinson Worldwide, Inc., 525 F.3d 1139 (11th Cir. 2008), the same employer finds itself on the griddle again for sex harassment — this time in Cleveland, Ohio — with the Sixth Circuit reversing summary judgment on the same grounds as the Eleventh. The Second Circuit, meanwhile, gives us “sex stereotyping” of a different stripe: a male commissioner firing another male, allegedly because the commissioner believed that men were habitual sex harassers.
Gallagher v. C. H. Robinson Worldwide, Inc., No. 08-3337 (6th Cir. May 22, 2009) This case presents a case of harassment directed not a particular woman employee, but — rather — an environment inimical to women generally. In the Eleventh Circuit’s Reeves‘ case (reported here April 28, 2008), the same employer argued that Title VII requires that — to show that harassment is “because of sex” — the offending behavior be targeted at an employee. The suggestion is that if an office or workshop of nearly all men would behave the same way, whether or not female employees were present, then such behavior is not “because of sex.” The argument did not succeed in the Eleventh Circuit (it reversed summary judgment), and the Sixth Circuit takes the same tack here.
Office life in the Cleveland, Ohio branch — according to the summary judgment record — was suffused with male arrested-development behavior: referring to women as “whores,” “sluts,” “bitches” etc.; pornography displayed on the desks; “co-workers traded sexual jokes and engaged in graphic discussions about their sexual liaisons.” One manager refereed to the plaintiff “as a ‘heifer’ with ‘milking udders,’ and ‘moo’ed when she walked by his desk.” There was only one physical incident over four months, and women as well as men engaged in the behavior.
The panel holds that it was not necessary for the plaintiff to show that she specifically victimized by the conduct:
“[M]ost of the complained of harassment just summarized – both conduct directed at Gallagher and indiscriminate conduct – is explicitly sexual and patently degrading of women. The natural effect of exposure to such offensive conduct is embarrassment, humiliation and degradation, irrespective of the harasser’s motivation – especially and all the more so if the captive recipient of the harassment is a woman. In connection with such evidence, it is hardly necessary for Gallagher to otherwise show that the conduct evinces anti-female animus; it is obvious. Hence, even though members of both sexes were exposed to the offensive conduct in the Cleveland
office, considering the nature of the patently degrading and anti-female nature of the harassment, it stands to reason that women would suffer, as a result of the exposure, greater disadvantage in the terms and conditions of their employment than men.”
The panel also reverses the district court’s holding that the alleged behavior was not severe or pervasive:
“The district court emphasized that most of the offensive conduct was not directed at Gallagher. This is not an irrelevant consideration, but the district court appears to have ignored the fact that, due to the configuration of the Cleveland workplace, it was practically impossible for Gallagher to avoid her co-workers’ offensive conduct. Whether the offensive conduct was intentionally directed specifically at Gallagher or not, the fact remains that she had no means of escaping her co-workers’ loud insulting language and degrading conversations; she was unavoidably exposed to it. Her complaints to co-workers and her supervisor were not only ignored, but actually tended to exacerbate the harassment.”
The panel finds a genuine issue of material fact concerning objective and subjective offensiveness, rejecting the district court’s conclusion that the employee was not prevented from doing her job:
“Moreover, the district court also erred in requiring evidence that Gallagher’s work performance suffered measurably as a result of the harassment. The court placed inordinate weight on Gallagher’s testimony that she was able to meet her daily and weekly quotas and that her work performance was rated average to above average. In finding that Gallagher failed to present any evidence that the harassment unreasonably interfered with her work, the court ignored her testimony that, from day one in the Cleveland office, she was ‘horrified’ by the loudness, constant swearing and vulgar language, and that she ‘left there every day crying.’ Considering Gallagher’s description of the offensive conduct to which she was exposed, her reaction can hardly be dismissed as implausible, unreasonable, exaggerated or hypersensitive.”
And in spite of the employee’s failure to use all of the vehicles provided by the comapany’s anti-harassment policy, the panel holds that there was enough evidence in the record to impute liability to the employer for both co-worker and supervisory harassment:
“Here, it is undisputed that Gallagher reported much of the harassing conduct to her supervisor Quast. Further, according to Gallagher’s deposition testimony, Quast witnessed much of the harassing conduct and participated in some. The facts substantiate a finding the Quast knew or should have known of the offensive conduct and of Gallagher’s objection to it. Yet, in the absence of evidence that this knowledge extended higher up in the chain of management, the question is whether Quast’s knowledge is properly imputed to C.H. Robinson.”
Finally, the panel reverses and remands an Ohio state-law common-law claim for failing to provide a safe work
environment free from sexual harassment under Kerans v. Porter Paint Co., 575 N.E.2d 428 (Ohio 1991).
Sassaman v. Gamache, No. 07-2721 (2d Cir. May 22, 2009): A male employee Sassaman, who had previously enjoyed a friendly coffee-break relationship with a female subordinate (Brant), saw things curdle when she was promoted over him. Events spiraled and Sassaman eventually found himself accused by Brant of sex harassment and stalking. The record is apparently in dispute over the truth of the allegations, but the commissioner who ordered Sassaman’s termination may have tipped his hand in the final, fateful meeting:
“On March 21, 2005, Gamache informed Sassaman by telephone that he would be terminated unless he chose to resign. According to Sassaman’s deposition testimony, Gamache defended his decision by explaining, ‘I really don’t have any choice. Michelle [Brant] knows a lot of attorneys; I’m afraid she’ll sue me. And besides you probably did what she said you did because you’re male and nobody would believe you anyway.'”
The panel reverses summary judgment, finding that this very statement supports an inference of sex bias:
“Construing the facts at issue in the light most favorable to Sassaman, as we must under controlling authority, the alleged sex stereotyping is more overt: Gamache appears to have defended his decision to credit Brant’s allegations of sexual harassment by pointing to the propensity of men, as a group, to sexually harass women. When employment decisions are based on invidious sex stereotypes, a reasonable jury could infer the existence of discriminatory intent.”
The panel allows that from other vantage points, the commissioner’s statement could be construed neutrally, but that construction of an ambiguous comment was up to the jury. It also observes that fear of future litigation may be a legitimate reason to fire an employee, but that “fear of a lawsuit does not justify an employer’s reliance on sex stereotypes to resolve allegations of sexual harassment, discriminating against the accused employee in the process. To be sure, Title VII requires employers to take claims of sexual harassment seriously. . . . It also requires that, in the course of investigating such claims, employers do not presume male employees to be ‘guilty until proven innocent’ based on invidious sex stereotypes.”
The case comes as a bit of shock (to me anyway) because of the ordinary latitude courts grant employers to take protective measures against sex harassment. To indulge in my own stereotyping here, I take for granted that many other managers believe (but would likely never utter, as this one did) that men are the aggressors in male-female relations, and more prone to harassment. The point of this case, though, is that the employer must reach its decision untainted by such a presumption. Crediting the record here, the commissioner’s decision against Sassaman was no better than using racial or national origin stereotypes to wrap up an accusation of theft or assault. A useful precedent, therefore, for anyone falsely accused in the workplace for gender, racial or other reasons.