Thursday, March 29, 2007
Posner: "Title VII is not a code of civility," Part XVII
Posner, Easterbrook, & Evans released a telling opinion yesterday discussing the differences, as they see it, between conduct that is merely offensive and conduct that rises to the level of sexual harassment. Plaintiff, a school bus driver, alleged a litany of sex-related misconduct at the workplace. Examples included her manager watching pornography in his office, calling a female employee a "fat-ass," and describing an incident in which his male cat "raped" his female cat. That's not sexual harassment, said Posner. "The fact that one's co-workers [sic -- here it was the manager] do or say things that offend one, however deeply, does not amount to harassment if one is not within the target area of the offending conduct -- if, for example, the speech or conduct is offensive to women and one is a man, or offensive to whites and one is black." The conduct alleged in this case, the court found, "had only a tangential intersection with the plaintiff":
When the manager called one of the woman drivers a "fat ass," he may have been using a term that he would not have used of a man, but what if anything was he saying about the plaintiff, either directly or indirectly? And what if a male coworker [sic] is believed (apparently mistakenly in this case, but that is unimportant) to be watching pornography on his office computer? It wasn't any of the plaintiff's business what the manager was looking at on his computer. It is not as if pornographic pictures were exhibited on the walls of the workplace or emailed to the plaintiff. The relation between the manager's watching pornography on his own screen and the plaintiff's working environment was almost as attenuated as if she had learned that he watches pornography on his computer at home. [citation omitted]
The case is Yuknis v. First Student, Inc., ___ F.3d ___, 2007 WL 912121, (7th Cir. March 28, 2007). Comments are welcome.