“Suing Over What Your Co-Workers Listen To”

by Walter Olson on May 4, 2008

The Eleventh Circuit on Monday “held that Ingrid Reeves could proceed to trial with her hostile environment harassment claim — which is to say, that if the jury agrees with her on the facts, it’s entitled to award potentially hundreds of thousands of dollars in damages — even though the case didn’t involve any sexual extortion, any offensive touching, any sexual propositions, or even any insults targeted to her personally. Rather, her complaints, as described by the Eleventh Circuit were chiefly related to “sexually crude language that offended her.” Among the sources of that offense, per the court opinion, was “a radio program that was played every morning on the stereo in the office”, per Eugene Volokh “a morning program on Birmingham’s 107.7 FM during 2002-03, according to one brief”. (May 2; title post borrowed from Bader). More: Fulton County Daily Report, Evil HR Lady (“And you wonder sometime why we HR types put a damper on the fun.”).

{ 5 comments }

1 E-Bell 05.05.08 at 8:25 am

Quoth Milton Waddams:

I was told that I could listen to the radio at a reasonable volume from nine to eleven. I told Bill that if Sandra is going to listen to her headphones while she’s filing then I should be able to listen to the radio while I’m collating so I don’t see why I should have to turn down the radio because I enjoy listening at a reasonable volume from nine to eleven.

2 Jason Barney 05.05.08 at 1:25 pm

Enough chatter! Back to your TPS reports, mmm-k?

3 Hans Bader 05.05.08 at 2:29 pm

Professor Eugene Volokh thinks the court’s ruling creates serious First Amendment problems, but what most troubles me, as someone who used to litigate discrimination cases, is the fact the court ruling conflicts with past precedent.

Eleventh Circuit precedent requires a showing of purposeful, intentional discrimination for sexual harassment claims.

In the Eleventh Circuit — unlike some circuits — the elements of a Title VII sexual harassment claim and a Fourteenth Amendment sexual harassment claim are the same, meaning that a plaintiff must show purposeful, intentional discrimination (by purposeful, I mean an intent to treat differently, not a specific intent to harm — a defendant who grabs women’s buttocks over their protests is not immune from liability merely because he deludedly thinks he is God’s gift to women), not just that the plaintiff was reasonably offended.

In Cross v. Alabama, 49 F.3d 1490, 1507-08 (11th Cir. 1995), the Eleventh Circuit held that “the elements of the two causes of action [sexual harassment claims under Title VII and the Fourteenth Amendment] are the same,” meaning that a plaintiff “must prove discriminatory motive or purpose.”

The Supreme Court has made clear that the fact that a woman is adversely affected, and that an employer knows this, is not enough to satisfy this exacting standard unless the employer intends to treat the female employee differently:

“Discriminatory purpose,’ however, implies more than intent as volition or intent as awareness of consequences. . .It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part “because of,” not merely “in spite of,” its adverse effects upon an identifiable group.” Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979)

Thus, for the plaintiff to prevail, she must show that her co-workers aimed offensive comments at her based on her sex (or broadcast the offensive comments specifically to annoy her based on her sex), not just that she was reasonably offended by them and that they were pervasive.

“Title VII does not prohibit profanity alone, however profane. It does not prohibit harassment alone, however severe and pervasive. Instead, Title VII prohibits discrimination, including harassment that discriminates based on a protected category such as sex. Because a claim of sexual harassment under Title VII is a claim of disparate treatment, in order to prevail a plaintiff must show that similarly situated persons not of her sex were treated differently and better.” Baldwin v. Blue Cross, 480 F.3d 1287, 1301-02 (11th Cir. 2007); see also Lyle v. Warner Bros., 132 P.3d 211 (Cal. 2006) (sexual jokes not aimed at plaintiff did not support her sexual harassment claim); Scusa v. Nestle U.S.A., Inc., 181 F.3d 958 (8th Cir. 1998); Hocevar v. Purdue Frederick Co., 223 F.3d 721, 737 (8th Cir. 2000); Duncan v. Denver, 397 F.3d 1300 (10th Cir. 2005); Pasqua v. Metropolitan Life Ins., 101 F.3d 514, 517 (7th Cir. 1996); Gallant v. Board. of Trustees, 997 F. Supp. 1231, 1232, 1234-35 (N.D. Cal. 1998).

Courts recognize that being terribly offended, even for good reason, is just not enough for sexual harassment liability where discriminatory intent or purpose is required. For example, the Seventh Circuit, which does not (unlike the Eleventh Circuit) require the same showing to recover on a Title VII claim as on an equal protection claim, recognizes that even grossly bigoted statements made in the presence of a plaintiff doesn’t show the intent needed to recover on a 14th Amendment harassment claim. In Huff v. Sheahan, 493 F.3d 893, 902 (7th Cir. 2007), that court upheld a ruling for a harassment defendant under the 14th Amendment, because “relief is available to a plaintiff claiming a hostile work environment only when she can demonstrate that the defendant acted with discriminatory intent.” By contrast, itt reversed a ruling for the defendant under Title VII, ONLY because it — unlike the Eleventh Circuit’s decision in cases like Cross v. Alabama — has precedents specifically allowing plaintiffs to recover for sexual harassment under Title VII absent discriminatory purpose, and specifically holding that the Title VII standard is different from the 14th Amendment standard.

The Eleventh Circuit, by contrast, made very clear in Cross v. State of Alabama, 49 F.3d 1490, 1507-08 (11th Cir. 1995), that a plaintiff “must prove discriminatory motive or purpose” under BOTH Title VII and the Equal Protection Clause (Section 1983), because “the elements of the two causes of action are the same.”

Eleventh Circuit judges have reiterated that understanding ever since. See Mitchell v. Pope, 189 Fed. Appx. 911, 913, 2006 WL 197600111, *1 (11th Cir. July 14, 2006) (”elements of the two causes of action are the same”); Downing v. Bd. of Trustees of Univ. of Alabama, 321 F.3d 1017, 1023 (11th Cir. 2003) (”Cross holds that the elements of a sexual harassment claim under Title VII and the Equal Protection Clause are the same — meaning that the employee must prove that the state actor intended to discriminate because of the employee’s sex”) (opinion later withdrawn for other reasons); Downing, 321 F.3d at 1022 n.9 (In Title VII, “this language is aimed at intentional discrimination, and to prove a violation, a plaintiff must profer either direct or indirect evidence of the employer’s discriminatory intent”).

The Reeves decision conflicts with circuit precedents such as Cross v. Alabama, 49 F.3d 1490, 1507-08 (11th Cir. 1995) and Baldwin v. Blue Cross, 480 F.3d 1287, 1301-02 (11th Cir. 2007) (requiring proof that “similarly situated persons not of” plaintiff’s “sex were treated differently and better”).

Reeves justified its jettisoning of the discriminatory intent requirement by saying that such intent is not required in racial harassment cases. But even if that were in fact true (and it does not appear to be in some circuits, see Caver v. City of Trenton, 420 F.3d 243 (3d Cir. 2005) (holding that racial harassment plaintiff, just like sexual harassment plaintiff, must show that “(1) he suffered intentional discrimination because of his [race]” and “(2) the discrimination was pervasive and regular”)), circuit panels are bound by their own past sexual harassment precedents whether or not they seem consistent with other areas of the law, like racial harassment.

Moreover, requiring discriminatory intent or purpose is consistent with how courts handle religious harassment cases, where discriminatory treatment and intent are required, and the panel gave no justification for choosing to ignore those cases in favor of its perception of how racial harassment cases ignore the requirement of discriminatory intent. See Rivera v. Puerto Rico Aqueduct and Sewers Authority, 331 F.3d 183, 190 (1st Cir. 2003) (rejecting religious harassment claim because of absence of discriminatory purpose; “Rosario asserts that the lyrics of the song are offensive to her, given her deep religious convictions. We do not doubt this is so. But the question is not whether a religious person could find the song offensive; it is whether religious animus prompted Rivera to sing it to her”).

I also wonder why the decision doesn’t grapple with the language of 42 USC 1981a, the damages provision of Title VII. It bars damages when the plaintiff is alleging “disparate impact” (which is really what the plaintiff is alleging here) rather than “intentional discrimination.” I guess the defendant probably didn’t raise that issue, meaning it was never decided. But it’s damages that most sexual harassment plaintiffs are interested in, not injunctive relief.

Even assuming a plaintiff like Reeves can sue for sexual harassment that is disproportionately offensive to her (disparate impact) but doesn’t involve purposeful discrimination against her, there’s still a logical problem with her suit. Allowing the plaintiff — apparently the only female affected by the conduct she complained of — to sue over it also seems at odds with the principle that disparate impact claims (unlike ordinary intentional discrimination claims) can’t be based on something that affects just one employee. See Coe v. Yellow Freight, 646 F.2d 444 (10th Cir. 1981).

4 Evil HR Lady 05.05.08 at 6:30 pm

Thanks for the link. You made my day.

5 Disgusted Beyond Belief 05.06.08 at 10:33 am

Presumably one could show intent to discriminate by showing that it was known by the employer/employees that the language on the radio show was sexist and offensive and that they played it anyway, with the desire to create a hostile work environment by doing so. Of course, whether they had that intent or not is a question of fact, which means that it would be inappropriate for the trial court to rule on that on summary judgment unless there was no evidence that could support even an inference of such intent.

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