Wednesday, January 20, 2010
Last 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.