Wednesday, January 20, 2010

Eleventh Circuit Affirms En Banc that Harrassment Need Not Target the Plaintiff Personally

GavelLast Spring, the 11th Circuit issued a decision that reversed summary judgment granted for an employer (discussed here), a result that was particularly surprising because there were no allegations of touching and the plaintiff herself was not called names. The court voted last June to rehear the case, and today affirmed the panel decision in what appears to be a unanimous decision. *Warning the following description contains offensive language and description of behaviors that also may be offensive*

Taking the evidence in the light most favorable to the plaintiff, the court found that a reasonable jury could find that the workplace was hostile to women because they were women, satisfying the disparate treatment model of discrimination, the model the court reaffirmed was required in the 11th circuit as the theoretical basis for sexual harassment to constitute sex discrimination. The court chronicled the allegations, noting in particular, the general profanity and particularly sexualized profanity that was constantly used . That was not all,

Reeves . . . also identified a substantial corpus of gender-derogatory language addressed specifically to women as a group in the workplace. Her coworkers used such language to refer to or to insult individual females with whom they spoke on the phone or who worked in a separate area of the branch. Although not speaking to Reeves specifically, Reeves said that her male co-workers referred to individuals in the workplace as “bitch,” “fucking bitch,” “fucking whore,” “crack whore,” and “cunt.”

And unlike the Seventh Circuit, which has held that "bitch" is not necessarily gendered, this court explained why that language suggests hostility to women even when it is used against both genders.

gender-specific terms cannot give rise to a cognizable Title VII claim if used in a context that plainly has no reference to gender. Thus, for example, were a frustrated sales representative to shout “Son-of-a-bitch! They lost that truck,” the term would bear no reference to gender. In contrast, however, when a co-worker calls a female employee a “bitch,” the word is gender-derogatory. As we observed in [a prior case], the terms “bitch” and “slut” are “more degrading to women than to men.” . . .  The original definition of the term “bitch” is “the female of the dog.” Webster’s Third New International Dictionary 222 (2002). The term’s secondary meanings are likewise gender- specific: “a lewd or immoral woman” or “a malicious, spiteful, and domineering woman.” Id. Calling a female colleague a “bitch” is firmly rooted in gender. It is humiliating and degrading based on sex. . . .

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. Like “bitch,” “whore” is traditionally used to refer only to women. The dictionary defines “whore” in terms of gender as “a woman who practices unlawful sexual commerce.” Webster’s Third New International Dictionary 2612. “Cunt,” referring to a woman’s vagina, is the essence of a gender-specific slur. . . . But even accepting that Reeves’s co-workers sometimes used the terms “bitch” and “whore” to refer to men, this usage may not make the epithets any the less offensive to women on account of gender. It is undeniable that the terms “bitch” and “whore” have gender-specific meanings. Calling a man a “bitch” belittles him precisely because it belittles women. It implies that the male object of ridicule is a lesser man and feminine, and may not belong in the workplace. Indeed, it insults the man by comparing him to a woman, and, thereby, could be taken as humiliating to women as a group as well.

The court also joined the Second, Fourth, and Seventh Circuits in holding that slurs need not be directed at the plaintiff specifically to constitute an environment hostile to her. Exposing her to hostility to her group was enough. Moreover, she complained, and the employer did not stop the harassment. That action was directed at her specifically.

Overall, this is a very thoughtful and thorough opinion, and comes to what I think is the right outcome.

MM

http://lawprofessors.typepad.com/laborprof_blog/2010/01/eleventh-circuit-affirms-en-banc-that-harrassment-need-not-target-the-plaintiff-personally.html

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Comments

Radical femninism is equivalent to an extremist hate group and has given rise to a whole range of injustices and attacks on civil liberties in the disingenous guise of equality.

For those interested read the following as examples, you will not find these issues discussed in the feminist media. If people are ending up dead because of bias unquestioned propaganda then in a day of human rights and civil liberties, I think someone should speak up for the dead men and the injustices even if others wont:

i) An article from a feminist in sexual harassment, in particular the paragraph

http://www.wendymcelroy.com/talks/feecon02.html

“Second, it is important to hammer in the toll of human misery that has been inflicted upon those who are accused of sexual harassment. Universities, in particular. At universities, those accused have no presumption of innocence…that is something they must prove to committees that often have the power to ruin their lives. They have no right to face their accuser or to question witnesses, no right to a lawyer or even, necessarily, to know the exact charges being brought against them. And the charges can be brought for nothing more than assigning the wrong homework, telling the wrong joke, asking female students tough questions or not asking them enough questions.

Daphne Patai is very good at driving home the savagery of sexual harassment laws and policies. One third of her book, part II, is entitled “Typifying Tales.” There she offers real life stories. For example…one case…a very over-weight and by all accounts a very popular, competent professor responded to a taunt shouted out in class by a female student. She rudely commented on the extreme ’size’ of his chest: in response, he observed that she had no such problem. A witch-hunt of sexual harassment charges ensued. It was so extreme that the professor committed suicide. In a press release, the university’s main concern was that the professor’s death would not discourage other similarly “abused” women from “speaking out.”
ii) A book named Heterophobia: Sexual Harassment and the Future of Feminism by Daphne Patai. You can read extracts here:

http://books.google.co.uk/books?id=31lrESwfKXUC&dq=heterophobia+sexual+harassment+and+future+of+feminism&printsec=frontcover&source=bn&hl=en&ei=qDZSS_PjFKb20gSIsrizDQ&sa=X&oi=book_result&ct=result&resnum=4&ved=0CBIQ6AEwAw#v=onepage&q=&f=false

ii) A memo (again by a woman) from the cato institute entitled feminist jurispudence – http://www.cato.org/pubs/pas/pa-256.html

Posted by: truthnotdogma | Jan 24, 2010 11:21:21 AM

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