Gender Based Profanity Constitutes Sexual Harassment
C.H. Robinson Loses Another Sexual Harassment Hostile Environment Appeal
I read about this case decided by the Eleventh Circuit Court of Appeals last week with great interest. In it the Court held quite clearly that a constant flow of profanity in the workplace can constitute sexual harassment and gender discrimination.
After reading it I thought, "this sounds familiar." In fact I thought, "I've already written about this case," so I researched my blog and there it was -- an almost identical lawsuit against the same company for the same awful conduct decided in June by the Sixth Circuit Court of Appeals and I thought, "doesn't this company ever learn?"
Reeves v. C.H. Robinson Worldwide, Inc. is a long decision -- 27 pages -- and one definitely worth the read. In a nutshell, here's what happened in the case.
The Facts
Ingrid Reeves worked as a sales representative from July 2001 to March 2004 in the Birmingham, Alabama branch of C.H. Robinson. She worked in a cubicle in an open area with six male co-workers.
During that time, she was subjected to an onslaught of foul and disgusting language at work on a daily basis. Women were repeatedly referred to as:
- bitch
- fucking bitch
- fucking whore
- crack whore
- cunt
Co-workers also listened to a crude radio show each morning, displayed pornography on a computer, and sang songs about gender-derogatory topics.
Though she complained to her co-workers they persisted in the conduct. She complained to her branch manager on at least five separate occasions and in two separate work evaluations. She also contacted two C.H. Robinson executives. Nothing changed, and Reeves resigned.
Reeves filed a lawsuit alleging that she had been subjected to a hostile work environment in violation of Title VII of the Civil Rights Act of 1964.
What Happened In The Courts
The federal district court granted judgment in favor of C.H. Robinson and threw out the case. Its reasoning was that the offensive conduct was not motivated by sex and not directed at Reeves.
Reeves appealed. A panel of the appellate court reversed the district court's decision holding, among other things, that Reeves presented jury issues as to whether the offensive conduct was based on sex.
That decision was vacated and a rehearing en banc was granted -- meaning that the whole court was going to hear and decide the case.
The Eleventh Circuit Finds For Reeves
The Court started the opinion with some "core principles of employment discrimination law" in hostile work environment cases:
- a plaintiff must show that
- her employer discriminated because of her membership in a protected group (race, sex, etc.) and that
- the offensive conduct was either severe or pervasive enough to alter the terms or conditions of employment
- Title VII is not a civility code, and not all profane or sexual language or conduct will constitute discrimination
- workplace conduct can not be viewed in isolation, but but must be viewed cumulatively and in its social context
- a plaintiff can prove a hostile work environment by showing severe or pervasive discrimination directed against her protected group, even if she herself is not individually singled out
Applying these principles, the Court held that sufficient evidence had been presented for a jury to find that Reeves was subjected to a "discriminatorily abusive working environment."
It stated:
The terms 'whore' 'bitch', and 'cunt,' the vulgar discussions of women's breasts, nipples, and buttocks, and the pornographic image of a woman in the office were each targeted at Reeves's gender.
Like 'bitch,' 'whore,' is traditionally used to refer only to women. The dictionary defines 'whore' in terms of gender as a 'woman who practices unlawful sexual commerce'...
A raft of case law ... establishes that the use of sexually degrading, gender-specific epithets, such as 'slut,' 'cunt,' 'whore' and 'bitch,' .... have been consistently held to constitute harassment based upon sex ...
It didn't matter, to the Court, that Reeves co-workers never directly called her a "bitch," a "fucking whore," or a "cunt." Reeves claimed it happened every day, and that the manager accepted and tolerated the behavior in spite of her repeated complaints. As the Court pointed out:
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.
The Court also rejected C.H. Robinson's argument that the gender-specific insults were not directed at Reeves, and therefore not "because of her sex," since the conduct started well before Reeves started working there. 
That argument, according to the Court, is inconsistent with the central premise of Title VII -- that is: workers are to be protected from discrimination on account of gender in the workplace. In the words of the Court:
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 Reeve 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, the Court rejected C.H. Robinson's third contention -- that Reeve's co-workers used the terms "bitch" and "whore" to refer to both men and women and so those terms couldn"t be gender specific. The Court noted:
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.
In sum:
If Reeve's account is to be believed, C.H. Robinson's workplace was more than a rough environment -- indiscriminately vulgar, profane, and sexual. Instead, a jury reasonably could find that it was a workplace that exposed Reeves to disadvantageous terms or conditions of employment to which members of the other sex ere not exposed.
Title VII was plainly designed to protect members of a protected group from adverse conditions of employment like those Reeves alleges were endemic to C.H. Robinson.
And so, Ingrid Reeves gets her day in court.
Conclusion
There are so many women who are regularly subjected to degrading and offensive work environments particularly where most of the employees are men. It's sad but true that although C.H. Robinson seems to be a blatant repeat offender, what happened to Ingrid Reeves and Julie Gallagher are not isolated events. I have been hearing these stories, and they haven't seemed to change that much, for the past thirty years. This stuff happens, unfortunately, all of the time.
That's why this case is so important. It states why it's illegal to subject women to this type of insult and profanity in the workplace. It's a particularly thoughtful, insightful and well written opinion which will be helpful to employers as to what's illegal and what's not -- and why -- and to women and their lawyers who bring hostile environment sex discrimination claims in the future.
It's a great opinion from the Eleventh Circuit.
images: abovethelaw.com
