A big win for harassment victims is issued today in the Eleventh Circuit, unanimously vacating summary judgment and returning for trial a Title VII claim that generalized hostility to women (such as raunchy talk and pornography in the workplace) may create a hostile work environment, even if not specifically targeted at a particular woman employee.
Over a year ago, a panel of the Eleventh Circuit reversed summary judgment in a sex harassment case involving conduct not necessarily targeted at the plaintiff, but hostile to women generally (write-up here). The full court then vacated that ruling for rehearing en banc. Today, the full court upholds the original outcome, but with a new opinion.
Reeves v. C.H. Robinson Worldwide, Inc., No. 07-10270 (11th Cir. Jan. 20, 2010): The opinion begins with a disclaimer -- "We recite the profane language that allegedly permeated this workplace exactly as it was spoken in order to present and properly examine the social context in which it arose. We do not explicate this vulgar language lightly, but only because its full consideration is essential to measure whether these words and this conduct could be read as having created 'an environment that a reasonable person would find hostile or abusive.'"
The opinion then proceeds to trowel on three years' worth of epithets and foulness. Plaintiff, one of only two female employee in a male workplace (and a retired Merchant Marine, to boot), endured every variation on the F- and C-words, graphic descriptions of sexual behavior, public displays of pornography and other vile behavior. Some of it was targeted at the female employees, but much of it was generalized. A notable instance was that the men often tuned their radio to a morning shock-jock:
"Nearly every day, Reeves's co-workers tuned the office radio to a crude morning show. Reeves claimed that this program featured, among other things, regular discussions of women's anatomy, a graphic discussion of how women's nipples harden in the cold, and conversations about the size of women's breasts. It also once advertised a 'perverse' bikini contest. On one occasion, Reeves's coworker Darryl Harris displayed a pornographic image of a fully naked woman with her legs spread, exposing her vagina, on his computer screen. Her co-workers also regularly sang songs about gender-derogatory topics."
Reeves also testified that "she objected frequently to the crude language, conduct, and radio station to her co-workers. Much of the time, she identified only a generally vulgar and offensive working environment. On occasion, however, she complained about gender-specific offensive behavior, too." Complaints allegedly were futile against the onslaught and the plaintiff eventually resigned.
After ascertaining that the case should be analyzed under a disparate treatment rubric, and canvasing the law in this area, the full court states the principle that resolves the case:
"Evidence that co-workers aimed their insults at a protected group may give rise to the inference of an intent to discriminate on the basis of sex, even when those insults are not directed at the individual employee. A jury could infer the requisite intent to discriminate when that employee complained to her employer about the humiliating and degrading nature of the commentary about women as a group and the conduct persisted unabated.
* * * *
"If the environment portrayed by Reeves at C.H. Robinson had just involved a generally vulgar workplace whose indiscriminate insults and sexually-laden conversation did not focus on the gender of the victim, we would face a very different case. However, a substantial portion of the words and conduct alleged in this case may reasonably be read as gender-specific, derogatory, and humiliating. This evidence, measured against the aforementioned principles, is sufficient to afford the inference that the offending conduct was based on the sex of the employee.
"A jury reasonably could find on this record that a meaningful portion of the allegedly offensive conduct in the office contributed to conditions that were humiliating and degrading to women on account of their gender, and therefore may have created a discriminatorily abusive working environment. The terms 'whore,' 'bitch,' and 'cunt,' the vulgar discussions of women's breasts, nipples, and buttocks, and the pornographic image of a woman in the office were each targeted at Reeves's gender."
The morning shock-jock drew this (footnote) response from the court:
"We do not accord too much weight to the morning radio show. Like so much of the workplace conduct, the morning radio show, which Reeves compared to a Howard Stern show, also aired general, indiscriminate vulgarity and profanity. Nevertheless, Reeves's account of the contents of the show may be relevant in some ways: Reeves also claims to have repeatedly heard gender-specific, derogatory comments about women's anatomy; the commentary may have been subjectively or objectively offensive; and the branch manager's and co-workers' refusal to respond to her repeated complaints may yield an inference about their intent to discriminate. We add that, while the F.M. broadcast station that featured the morning show is subject to F.C.C. controls for obscene language, see 47 C.F.R. § 73.4165 (regulation of broadcasting obscenity on the radio); FCC v. Pacifica Found., 438 U.S. 726, 737-38 (1978) (F.C.C. has the power to regulate profanity over the radio), the show's commentary need not have been obscene to be considered as part of the Title VII calculus"
Finally, in an argument simply too cute to be taken seriously, the employer argued that because the same antics and high-spirited behavior occurred before the plaintiff arrived, it could not perforce have been motivated by sex. "Here, Reeves claims that her conditions of employment were humiliating and degrading in a way that the conditions of her male co-workers' employment were not. It is no answer to say that the workplace
may have been vulgar and sexually degrading before Reeves arrived. Once Ingrid Reeves entered her workplace, the discriminatory conduct became actionable under the law. Congress has determined that Reeves had a right not to suffer conditions in the workplace that were disparately humiliating, abusive, or degrading."
So good show for the plaintiffs!