One recurring issue in hostile work environment cases is whether the employer can escape liability by arguing that the racist or sexist remarks/conduct were indiscriminately spread throughout the entire workplace, and were not aimed directly at the plaintiff.
The Eleventh Circuit, in a powerfully written en banc decision issued today, held that it was reversible error for the district court to grant summary judgment to the employer in a sexual harassment/hostile work environment case. Even though most of the sexist remarks were not directed at the plaintiff, and even though some of the sexist terms were directed specifically at men, the en banc court held that it was sufficient to set forth facts for a jury to resolve as to the hostile work environment claim.
Some excerpts follow:
http://www.ca11.uscourts.gov/opinions/ops/200710270op2.pdf
Reeves v. C.H. Robinson Worldwide, Inc., No. 07-10270 (11th Cir. Jan. 20, 2010).Before DUBINA, Chief Judge, TJOFLAT, EDMONDSON, BIRCH, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON, and PRYOR, Circuit Judges.
MARCUS, Circuit Judge:
. . . . Reeves resigned from her position at C.H. Robinson on March 24, 2004. On February 23, 2006, she filed a complaint against C.H. Robinson in the United States District Court for the Northern District of Alabama, alleging that she had been subjected to a hostile work environment in violation of Title VII. On December 11, 2006, the district court granted C.H. Robinson’s motion for summary judgment. In so doing, the court held that the offensive conduct was not motivated by Reeves’s sex, because the derogatory language in the office was not directed at her in particular. The district court reasoned that because the language was used and the radio program was played in the presence of all employees, “both men and women were afforded like treatment,” and Reeves was not “intentionally singled out for adverse treatment because of her sex.” Ingrid Reeves v. C.H. Robinson Worldwide, No. 2:06-CV-358-IPJ, Slip Op. at 19-20 (N.D. Ala. Dec. 11, 2006) (quotation marks and citation omitted).
Reeves appealed and a panel of this Court reversed the district court’s judgment, holding, among other things, that Reeves had presented a jury question about whether the offensive conduct was based on her sex. Reeves v. C.H. Robinson Worldwide, Inc., 525 F.3d 1139, 1148 (11th Cir. 2008). On May 29, 2009, we vacated this opinion and granted rehearing en banc. Reeves v. C.H. Robinson Worldwide, Inc., 569 F.3d 1290, 1290-91 (11th Cir. 2009).
. . . . In a case like this, where both gender-specific and general, indiscriminate vulgarity allegedly pervaded the workplace, we reaffirm the bedrock principle that not all objectionable conduct or language amounts to discrimination under Title VII. Although gender-specific language that imposes a change in the terms or conditions of employment based on sex will violate Title VII, general vulgarity or references to sex that are indiscriminate in nature will not, standing alone, generally be actionable. Title VII is not a “general civility code.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (quoting Oncale, 523 U.S. at 80). . . .
. . . . Nevertheless, a member of a protected group cannot be forced to endure pervasive, derogatory conduct and references that are gender-specific in the workplace, just because the workplace may be otherwise rife with generally indiscriminate vulgar conduct. Title VII does not offer boorish employers a free pass to discriminate against their employees specifically on account of gender just because they have tolerated pervasive but indiscriminate profanity as well. See Williams v. Gen. Motors Corp., 187 F.3d 553, 564 (6th Cir. 1999) (“We do not believe that a woman who chooses to work in the male-dominated trades relinquishes her right to be free from sexual harassment.”).
Equally important to our inquiry here is the common-sense rule that the context of offending words or conduct is essential to the Title VII analysis. Even gender-specific terms cannot give rise to a cognizable Title VII claim if used in a context that plainly has no reference to gender. Thus, for example, were a frustrated sales representative to shout “Son-of-a-bitch! They lost that truck,” the term would bear no reference to gender. In contrast, however, when a co-worker calls a female employee a “bitch,” the word is gender-derogatory. As we observed in Baldwin, the terms “bitch” and “slut” are “more degrading to women than to men.” 480 F.3d at 1302. The original definition of the term “bitch” is “the female of the dog.” Webster’s Third New International Dictionary 222 (2002). The term’s secondary meanings are likewise gender-specific: “a lewd or immoral woman” or “a malicious, spiteful, and domineering woman.” Id. Calling a female colleague a “bitch” is firmly rooted in gender. It is humiliating and degrading based on sex. Cf. Harris, 510 U.S. at 23 (holding that, to prove a hostile work environment, courts may consider whether conduct is humiliating).
As the Supreme Court has observed, “[t]he real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.” Oncale, 523 U.S. at 81-82.
. . . . A final principle that guides us in this decision is that words and conduct that are sufficiently gender-specific and either severe or pervasive may state a claim of a hostile work environment, even if the words are not directed specifically at the plaintiff. Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 331-32 (4th Cir. 2003) (en banc) (concluding that Title VII may be violated even when the plaintiff is not individually targeted). See also Petrosino v. Bell Atlantic, 385 F.3d 210, 221 (2d Cir. 2004). It is enough to hear co-workers on a daily basis refer to female colleagues as “bitches,” “whores” and “cunts,” to understand that they view women negatively, and in a humiliating or degrading way. The harasser need not close the circle with reference to the plaintiff specifically: “and you are a ‘bitch,’ too.” See Yuknis v. First Student, Inc., 481 F.3d 552, 553-54 (7th Cir. 2007) (observing that comments need not be directed specifically at a person to be discriminatory; comments addressed to the plaintiff’s “target area” -- that is, her protected group -- may constitute actionable harassment).
Similarly, words or conduct with sexual content that disparately expose members of one sex to disadvantageous terms or conditions of employment also may support a claim under Title VII. See Petrosino, 385 F.3d at 222 (“[T]he depiction of women in the offensive jokes and graphics was uniformly sexually demeaning and communicated the message that women as a group were available for sexual exploitation by men.”).
Evidence that co-workers aimed their insults at a protected group may give rise to the inference of an intent to discriminate on the basis of sex, even when those insults are not directed at the individual employee. A jury could infer the requisite intent to discriminate when that employee complained to her employer about the humiliating and degrading nature of the commentary about women as a group and the conduct persisted unabated. See Faragher, 524 U.S. at 789 (an employer’s knowledge and refusal to act may be read as “the employer’s adoption of the offending conduct and its results, quite as if they had been authorized affirmatively as the employer’s policy.”).
. . . . The social context at C.H. Robinson detailed by Reeves allows for the inference to be drawn that the abuse did not amount to simple teasing, offhand comments, or isolated incidents, see Faragher, 524 U.S. at 788, but rather constituted repeated and intentional discrimination directed at women as a group, if not at Reeves specifically. It is not fatal to her claim that Reeves’s co-workers never directly called her a “bitch,” a “fucking whore,” or a “cunt.” Reeves claims that the offensive conduct occurred “every single day,” and that the manager “accepted and tolerated that same behavior” over her repeated complaints. If C.H. Robinson tolerated this environment, it may be found to have adopted “the offending conduct and its results,” just as if the employer affirmatively authorized it. See id. at 789.
C.H. Robinson objects, however, that there is no proof of gender animus because Reeves’s co-workers began to use gender-specific epithets before Ingrid Reeves arrived at the workplace. Thus, C.H. Robinson argues that Reeves’s presence was irrelevant to the insults and, therefore, the conduct did not occur on account of her sex.
This argument is inconsistent with the central premise of Title VII: workers are to be protected from discrimination on account of gender in the workplace. Congress made a clear choice in enacting Title VII of the Civil Rights Act of 1964 “‘to strike at the entire spectrum of disparate treatment of men and women’ in employment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) (quoting Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978)).
“The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Oncale, 523 U.S. at 80 (quoting Harris, 510 U.S. at 25 (Ginsburg, J., concurring)). Here, Reeves claims that her conditions of employment were humiliating and degrading in a way that the conditions of her male co-workers’ employment were not. It is no answer to say that the workplace may have been vulgar and sexually degrading before Reeves arrived. Once Ingrid Reeves entered her workplace, the discriminatory conduct became actionable under the law. Congress has determined that Reeves had a right not to suffer conditions in the workplace that were disparately humiliating, abusive, or degrading.
. . . . Finally, C.H. Robinson suggests that Reeves’s co-workers used the terms “bitch” and “whore” to refer to both men and women and that, therefore, these terms cannot themselves be gender-specific. First, as for the term “bitch,” there may be a dispute of material fact about this matter. While Mitchell specifically testified that he referred to men in the office by the term “bitch,” Reeves claimed never to have heard any male employee refer to another male as a “bitch.” Compare Mitchell Dep. 83 with Reeves Decl. ¶ 4. But even accepting that Reeves’s co-workers sometimes used the terms “bitch” and “whore” to refer to men, this usage may not make the epithets any the less offensive to women on account of gender. It is undeniable that the terms “bitch” and “whore” have gender-specific meanings. Calling a man a “bitch” belittles him precisely because it belittles women. It implies that the male object of ridicule is a lesser man and feminine, and may not belong in the workplace. Indeed, it insults the man by comparing him to a woman, and, thereby, could be taken as humiliating to women as a group as well.
