Wednesday, March 10, 2010
You may remember that the Eleventh Circuit issued a somewhat surprising decision recently on rehearing in a sexual harassment case, (noted here). That case involved a workplace saturated with graphic discussions of sex and derogatory language about women, although the plaintiff was never called names. That decision was surprising, particularly having following on the heels of a decision by a panel that found sexual touching of and suggestive language by a male supervisor directed at two male subordinates not to be harassment, granting summary judgment in favor of the employer (see the article by Alyson Palmer here). The panel had reversed summary judgment on retaliation and remanded for further proceedings.
Well, the Eleventh Circuit has now granted rehearing in that case, Corbitt v. Home Depot. After the C.H. Reeves case, I would foresee a reversal here on the sexual harrasment issue. The panel had issued one opinion last July (573 F.3d 1223), which it vacated and modified some of the language, but not the result, in December (589 F.3d 1136). The decision contained a dissent on the sexual harassment issue, saying essentially that had the harassment been by a male supervisor of female subordinates, it would have survived summary judgment.