Monday, April 28, 2008
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.