Client Alert from the Labor and Employment Group - January 2010
Gender-Specific Vulgarities Sufficient
To Establish A Claim For Sexual Harassment Even If
The Comments Are Not Directed At Plaintiff
by Morris L. Hawk and William R. Hanna
The Eleventh Circuit Court of Appeals recently issued an en banc opinion concluding that a female employee can establish a claim for sexual harassment based upon the pervasive use of gender-specific vulgarities in her workplace - even though (1) the comments were not directed at her; and, (2) there was no evidence of any objectionable physical touching or other misconduct. Reeves v. C.H. Robinson Worldwide, Inc. (11th Cir.) (January 20, 2010)
Numerous prior court decisions have dismissed sexual harassment claims involving the isolated use of general vulgarity or references to sex where these comments were "indiscriminate" and not directed at the plaintiff. But in Reeves v. C.H. Robinson Worldwide, Inc., the Court was faced with a workplace where the use of the most offensive gender-specific vulgarities ("f-words," "b-words," "c-words" and others, alone and in combination) was both rampant and pervasive, and occurred in an open office environment where the plaintiff was constantly exposed to it. Moreover, plaintiff's supervisor not only ignored her complaints but actively participated in the offensive behavior.
Given this evidence, the Court concluded that it was not necessary for the plaintiff to prove that the gender-specific vulgarities were directed at her. Instead, the Court held that the plaintiff need only show that offensive language was sufficient and pervasive enough to have exposed her to "disadvantageous terms and conditions of employment to which members of the other sex are not exposed" and thus reversed and remanded the lower court's grant of summary judgment to the employer.
While the work environment in the Reeves case was notable for its offensiveness, this decision is important for all employers because the Court has now opened the door to cases based upon vulgar language by employees that is humiliating and degrading to women in general, even though not intentionally directed at any specific female employee. Although the Eleventh Circuit's decision in Reeves is not binding in the Sixth Circuit (covering Ohio, Michigan, Kentucky and Tennessee), it does provide an analytical framework for "generalized offensive language" harassment claims that the Sixth Circuit and other courts may adopt in the future.
The Reeves case demonstrates that employers cannot afford to ignore offensive language in the workplace - particularly gender-specific vulgarity - in the hope that it will simply go away. Tolerating such language only encourages it. Following Reeves, it is more important than ever that employers step in as soon as they are aware of a potential problem, to make clear to employees that offensive language is not appropriate in the workplace and also to implement sexual harassment training, so that employees understand what is expected of them, and what will not be tolerated from them.
If you have any questions or concerns, you should consult with an attorney who is familiar with employment law. The Labor and Employment attorneys at Walter & Haverfield will be pleased to help. |
