11th Circuit Orders Rehearing in Sexual Harassment Case

The Eleventh Circuit has granted rehearing en banc in a case that was a rare sexual harassment win that a panel had granted a plaintiff over a year ago, Reeves v. C.H. Robinson. The blog entry about it is here. The plaintiff was only one of two women who worked for the employer in Birmingham, and the only woman in the work area she was assigned to. According to her complaint, the men in the plant frequently referred to women in gendered an sexualized ways, for example, telling the plaintiff to "go help that bitch" in a particular location. The men also listened to a graphic radio program every day that referred to women in derogatory and sexualized ways constantly. She complained to coworkers and to supervisors, but nothing changed. She would be allowed to change the radio station, but it would soon be switched back to the program. The Eleventh Circuit found that even though the plaintiff was never called any of the gendered names or subject to unwelcome advances, she nonetheless had a valid sexual harassment claim, pointing out that this was consistent with the Circuit's racial harassment cases, which did not require that a plaintiff be a specific target of the harassing target, and it was consistent with other circuits. 

Along with its order granting rehearing, the Eleventh Circuit asked the parties to brief the following questions:

1. Whether the district court erred when it granted summary judgment in favor of C.H.
Robinson and against Reeves's complaint of a hostile work environment on the ground
Reeves was not harassed "because of" her sex, 42 U.S.C. § 2000e-2(a)(1)?
2. Whether Reeves's complaint of a hostile work environment should be evaluated as a
claim of disparate treatment or a claim of disparate impact?

The first question is essentially what the panel had answered "yes." The causation question can be very challenging in discrimination cases, and has resulted in a lot of judicial and scholarly discussion. It could be phrased in a couple of different ways, which is probably what the second question gets to: Were the harassers motivated by the plaintiff's sex--did they act this way because she was a woman rather than in spite of the fact that she was a woman; or was her experience of this environment more hostile because she was a woman.

That latter may sound like disparate impact, but I would suggest it's not. Here's what the argument would sound like. Both women and men were exposed to the same language, for example, the reference to women as "bitches." So if women experience that as hostile, "bitch" is a neutral term that impacts women negatively but not men. Thus, disparate impact.

But that assumes that "bitch" could be a neutral term (which the Seventh Circuit has actually held, but which I disagree with). It's gendered--and at the very least, it was gendered in this context where all those referred to as bitches were women and nearly all women were referred to that way. I can't believe that any court would say that the n-word is neutral but African Americans simply are more affected by it. The term itself has gendered (or for the n-word racial) content. It's much more analagous to sex-stereotyping, a form of disparate treatment, than it is disparate impact.

Finally, I can't see what difference it makes to call this disparate impact or disparate treatment--or what sense it makes. Both are prohibited by Title VII. And in the harassment context, courts don't often analyze the cases using those terms because they just don't fit quite right. We'll have to see what the Eleventh Circuit will do with it all.

In the meantime, I hope the court considers this excerpt from the Supreme Court's first sex harassment case, Meritor Savings Bank v. Vinson:

In concluding that so-called “hostile environment” ( i.e., non quid pro quo ) harassment violates Title VII, the EEOC drew upon a substantial body of judicial decisions and EEOC precedent holding that Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult. . . . Rogers v. EEOC, 454 F.2d 234 (CA5 1971), cert. denied, 406 U.S. 957 (1972), was apparently the first case to recognize a cause of action based upon a discriminatory work environment. In Rogers, the Court of Appeals for the Fifth Circuit held that a Hispanic complainant could establish a Title VII violation by demonstrating that her employer created an offensive work environment for employees by giving discriminatory service to its Hispanic clientele. The court explained that an employee's protections under Title VII extend beyond the economic aspects of employment:

“[T]he phrase ‘terms, conditions or privileges of employment’ in [Title VII] is an expansive concept which sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination.... One can readily envision working environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers....” 454 F.2d, at 238.

Courts applied this principle to harassment based on race, . . . religion, . . . and national origin . . . . Nothing in Title VII suggests that a hostile environment based on discriminatory sexual harassment should not be likewise prohibited. The Guidelines thus appropriately drew from, and were fully consistent with, the existing case law.

Hat tip: Aly Palmer

MM