To establish a prima facie case of sexual harassment, an employee must prove, among other factors, that the sexual harassment was unwelcome and that the harassment was based on sex. By injecting a gender's perceived sensitivities into the equation, the court makes the intent of the conduct irrelevant. In doing so, the Reeves court has essentially created a general code of workplace civility. As explained in Yukins v. First Student, Inc., another case in which a female employee claimed sexual harassment based on conduct that offended her but was not targeted at her:
More important still, the cat-rape anecdote and the "fat ass" comment are examples of comments that while they may, depending on their context, offend in respects relevant to Title VII, have only a tangential intersection with the plaintiff. When the manager called one of the woman drivers a "fat ass," he may have been using a term that he would not have used of a man, but what if anything was he saying about the plaintiff, either directly or indirectly? And what if a male coworker is believed ... to be watching pornography on his office computer? It wasn't any of the plaintiff's business what the manager was looking at on his computer. It is not as if pornographic pictures were exhibited on the walls of the work-place or emailed to the plaintiff. ... The relation between the manager's watching pornography on his own screen and the plaintiff's working environment was almost as attenuated as if she had learned that he watches pornography on his computer at home. ...The American workplace would be a seething cauldron if workers could with impunity pepper their employer and eventually the EEOC and the courts with complaints of being offended by remarks and behaviors unrelated to the complainant except for his having overheard, or heard of, them. The pluralism of our society is mirrored in the workplace, creating endless occasions for offense. Civilized people refrain from words and conduct that offend the people around them, but not all workers are civilized all the time. Title VII is not a code of civility.
7 comments:
Reeves does come close to creating a general code of civility. It strikes me as ironic that through the mechanism of regulating employment relationships the government can achieve indirectly a result that would not be permited under principles of free expression.
James, I am hopeful that Reeves is an anomaly and that other courts won't follow suit and seek to regulate boorish conduct that cannot be specifically tied to a protected class.
Jon,
Even if we concede that the boorish behavior is related to a protected class (I might even be willing to go so far) giving the Plaintiff a remedy has nothing to do with the point of Title VII and like statutes: to protect workers from adverse interference with the benefits of employment. You're right to fear the outcome.
I'm not sure that the purpose of Title VII and its ilk is as narrow as you propose, but I do agree with your overall outcome.
James:
I thought Reeves did suffer "adverse interference" with her job (selling) caused by a sexually explicit radio show (who knew women workers would be upset being called "whores"?). What Title VII "point" is enhanced by avoiding the adverse impact of sexually-degrading language (outside of an appropriate workplace situation, e.g., the "Friends" tv case)?
Of course, another example that favors your view is Jordan v. Alternative Resources Corp. (4th Cir. 2006), where the Court decided that a worker's racist comment (which was directed at a television news report that was on in the break room at work) could not be considered harassment of an African-American co-worker who overheard the comment and who was offended. The Court emphasized that the racist comment was "rhetorical insofar as its object was beyond the workplace" and "not directed at any fellow employee." You can see this case at http://pacer.ca4.uscourts.gov/opinion.pdf/051485A.P.pdf online.
I thought Reeves was in line with other common-exposure-but-adverse-impact cases, e.g., Petrosino v. Bell Atlantic (2nd Cir. 2003) no. 03-7366 and EEOC v. NEA-Alaska (9th Cir. 2005) no. 04-35029.
Pom,
I think that the division of opinion among the circuit courts illustrates the difficulty of using Title VII to protect dignitary as well as economic interests. A targeting rule, in my opinion, serves as a reasonable starting point for employer liability. Once the offending behavior is focused on a particular person, then it's reasonable to conclude (with the right set of facts) that there has been a de facto denial of the opportunity to work and benefit from the job. Once we extend the line to include generally offensive statements, then the link between the offensiveness and the lost opportunities becomes more attenuated. The question is whether we should hold employers liable in the latter situation. I would say no. (Conspicuous Consumer Warning -- I'm usually sympathetic to management). There are plenty of mean co-workers in the world. I'm not defending them, but I don't want to burden employers with the additional obligation to create an harmonious atmosphere.
James, I couldn't have said it better myself.
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