Monday, April 28, 2008

11th Circuit Sexual Harassment Case

Scales In a rare reversal of summary judgment for the defendant, the Eleventh Circuit issued a decision today in Reeves v. C.H. Robinson Worldwide, a sexual harassment case. As the court stated,

We must determine whether daily exposure to language and radio programming that are particularly offensive to women but not targeted at the plaintiff are sufficient to satisfy the “based on” and “severe or pervasive” elements of a hostile work environment claim. Because Reeves satisfied the “based on” element and a jury could reasonably conclude that the conduct at issue was sufficiently pervasive to support a hostile work environment claim, we reverse the entry of summary judgment in CHRW’s favor.

The plaintiff was the only woman who worked in her area. Her coworkers used gendered and sexually explicit language every day, and listened to a radio program

that was played every morning on the stereo in the office. Discussions of the following material on the show offended her: (1) breast size of female celebrities and Playboy Playmates; (2) sexual arousal and women’s nipples as indications thereof; (3) masturbation, both in general and with animals; (4) erotic dreams; (5) ejaculation; and (6) female pornography. Advertisements for or including the following material that were aired during the program also offended her: (1) sexual favors; (2) a bikini contest that instructed women to wear their most perverse bikinis; (3) a statement that a woman was found in bed with three elves and a candy cane; and (4) a drug called Proton that promised to increase sexual performance, please a partner, and make the user a “sexual tyrannosaurus rex.” When Reeves complained about the radio programming, she was often told that she could play her own music or change the station. She testified, however, that if she did so the other employees would soon change the radio back to the offensive program.

The court found that the language and the radio program were more degrading to women than to men and so the environment was hostile to Reeves "based on" her sex. The court further found that the frequency and severity of the degrading comments were severe and pervasive enough to create a hostile environment. Thus, the court reversed summary judgment granted for the defendant and remanded for trial.

This type of hostile environment case is often difficult to get past summary judgment because if both men and women are exposed to the conduct equally, then it's hard to say that one sex is treated differently from the other. The Eleventh Circuit got it right when it looked not at whether the sexes were exposed equally but whether the environment would be perceived as a hostile one by one sex more than the other. One interesting fact, Chief Judge Edmondson, widely regarded as very conservative, joined in this opinion. This may be a case if interest convergence: the views of more conservative justices about exposing women to this kind of coarse conduct might converge with the views of justices who look at the issue as one of discrimination, allowing both sets to reach this result.


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The court erred, but I appreciate the understated way you put the fact that romantic paternalism may be behind the misguided support of some conservatives for rulings like this, which are judicial activism in its purest form.

The court's decision was inconsistent with two past Eleventh Circuit decisions: Baldwin v. Blue Cross, which defined sexual harassment as being a form of disparate TREATMENT -- not disparate IMPACT -- and Cross v. Alabama, which said that in the Eleventh Circuit (unlike, say, the Seventh Circuit), discriminatory INTENT is required for a Title VII sexual harassment claim.

In Cross v. Alabama, 49 F.3d 1490, 1507-08 (11th Cir. 1995), the Eleventh Circuit held that “the elements of the two causes of action [sexual harassment claims under Title VII and the Fourteenth Amendment] are the same” in the Eleventh Circuit (unlike some other circuits), meaning that a sexual harassment plaintiff “must prove discriminatory motive or purpose.”

The Supreme Court has made clear that the fact that a woman is adversely affected, and that an employer knows this, is not enough to satisfy this exacting standard of showing a discriminatory PURPOSE unless the employer intends to treat the female employee differently:

“Discriminatory purpose,’ however, implies more than intent as volition or intent as awareness of consequences. . .It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part “because of,” not merely “in spite of,” its adverse effects upon an identifiable group.” Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979)

Thus, for the plaintiff to prevail, she must show that her co-workers aimed offensive comments at her based on her sex (or broadcast the offensive comments specifically to annoy her based on her sex), not just that she was reasonably offended by them and that they were pervasive.

“Title VII does not prohibit profanity alone, however profane. It does not prohibit harassment alone, however severe and pervasive. Instead, Title VII prohibits discrimination, including harassment that discriminates based on a protected category such as sex. Because a claim of sexual harassment under Title VII is a claim of disparate treatment, in order to prevail a plaintiff must show that similarly situated persons not of her sex were treated differently and better.” Baldwin v. Blue Cross, 480 F.3d 1287, 1301-02 (11th Cir. 2007); see also Lyle v. Warner Bros., 132 P.3d 211 (Cal. 2006) (sexual jokes not aimed at plaintiff did not support her sexual harassment claim).

Posted by: Hans Bader | May 5, 2008 5:45:23 PM

Wow. This is very crazy

Posted by: Denise Benign | Jan 5, 2009 11:38:07 AM

I'm not sure that the reversal of summary judgment is rare, but I would offer two observations. First, the Fifth Circuit case relied upon by the Supreme Court is binding on the Eleventh Circuit. Second, it makes a significant difference if a case is a disparate treatment or disparate impact case. Unlike a disparate treatment claim, a disparate impact claim does not provide for either a jury trial or an award of compensatory or punitive damages.

Posted by: William Deveney | Jun 4, 2009 6:06:17 AM

For the 11th Circuit to over turn a summary judgment granted in favor of an employer is EXTREMELY rare. Even in the most egregious circumstances, the 11th Circuit finds no harassment occured. If you look at 11th Circuit precedent, short of repeated rape, sexual harassment does not exist in the 11th Circuit.

Posted by: Mozelle Sims | Sep 9, 2009 8:46:59 AM

It appears that short of being repeatedly raped on a conference room table while the board of directors cheers the action on waiving a policy for which they all have signed saying "WE SUPPORT SEXUAL HARASSMENT", there is no such thing as sexual harassment in the 11th Circuit. Just look at the case law and the incidents of physical threats, repeated touching, etc., that the 11th Circuit has found NOT to be sexual harassment. Until the 11th Circuit's rulings are appealed to the Supreme Court (and the Supreme Court agrees to hear them), women in the 11th Circuit will not be afforded the same protection under the Civil Rights Act and precedents intepreting that law that they would have been afforded if they lived in a state other than Alabama, Georgia or Florida. To say the "conservative" judges of the 11th Circuit are not activitist judges, legislating from the bench, just isn't true when it comes to employer liability for harassment. Essentially, through its rulings, the 11th Circuit has said that certain provisions of the law, in particular provisions of the Civil Rights Act, and precendents set by the Supreme Court with respect to that law, can simply be ignored as the law of the land in favor of an 11th Circuit world where no laws against sexual harassment exist!

Posted by: Ronny Davis | Sep 9, 2009 9:41:06 AM