Sexually hostile work environment was discrimination “based on sex”

Gallagher v C.H. Robinson Worldwide, Inc, ___F.3d____(6th Cir. May 22, 2009), is an important sexual harassment case because it demonstrates that a cause of action can be established even if the plaintiff is not the target of the sexual harassment.  Here, the plaintiff alleged her mostly male coworkers referred to females as “bitches,” “whores,” and worse; viewed sexually explicit pictures on their computers; and left pornographic magazines lying open on their desks. The court below  held this conduct was insufficient to support a finding of harassment based on sex because it was “indiscriminate” and did not occur because the plaintiff was a woman.
The Sixth Circuit reversed, reasoning  “it is hardly necessary for [the plaintiff] to otherwise show that the conduct evinces anti-female animus; it is obvious.”  The court below also erred in holding the alleged conduct was not so objectively severe and pervasive as to have unreasonably interfered with the plaintiff’s work performance. The district court seemingly disregarded the fact that the employee “could not avoid exposure to these offensive behaviors because they occurred in close proximity to her work station. The 8th Circuit reached a similar result in Reeves v C.H. Robinson Worldwide, ___F.3d___(8th Cir. 2008).

Mitchell H. Rubinstein