David J. Middlebrooks, Albert L. Vreeland, II, Editors
Lehr Middlebrooks & Vreeland, P.C.

Vol. 19, No. 1
June 2008

SEXUAL HARASSMENT

Too much oinking down on the cubicle farm

As our loyal readers know, the best defense to a sexual harassment claim is an effective and consistently enforced sexual harassment policy. In the absence of plan A, we often fall back on plan B: The behavior wasn't so bad; after all, sexual banter and innuendo in small doses are just human nature. For years, that argument worked ― sometimes much to our surprise. Though we often caution male employers not to say anything to their employees that they wouldn't want said to their wives or daughters, our federal courts apply a much higher standard. But last month, the Eleventh U.S. Circuit Court of Appeals (which covers Alabama) heard enough to make it blush.

Bad behavior in the barnyard

Ingrid Reeves was one of only two women who worked in the Birmingham office of C.H. Robinson Worldwide and the only female who worked in a cubicle farm of sales representatives. According to Reeves, from the day she started in 2001 until she quit in 2004, somebody in the cubicle farm said or did something sexual every day. The farm, in her view, was full of swine.

One member of the farm in particular frequently used sexually crude and offensive language, although the comments were never directed at Reeves. He often referred to women as "f___ing bitch" or "f___ing whore" after hanging up the phone. He also referred to the other female employee as a "bitch" and commented on the size of her hindquarter. Although Reeves complained to the coworker about his comments, he didn't stop. Another coworker discussed masturbation, oral sex, and an experience in a hotel with naked women. Again, none of the comments was directed at Reeves, but the discussion took place openly around her.

Her direct supervisor, who was also the branch manager, referred to a female coworker as a "lazy, good-for-nothing bitch" and a female customer as "that stupid bitch on line four." Reeves often complained to him about his language and the general language in the office, but nothing changed.

In addition to the live performances in the cubicle farm, the employees played a morning radio program on the office stereo, and ― you guessed it ― the topic of morning radio banter was women's bodies, sex, porn, bikini contests, and sexual enhancement drugs. When Reeves complained, she was told that she could change the station, but when she did, the other employees changed it back.

By 2004, Reeves had enough and quit. She then sued, claiming a sexually hostile work environment. The trial court judge tossed the case out because it wasn't "based on sex," citing that both male and female employees were exposed to the inappropriate comments, and none of it was directed specifically at her. Reeves appealed to our federal court of appeals in Atlanta ― which took a different view.

All God's creatures are not alike

The employer's argument, which the trial court bought, goes like this: A hostile work environment is a form of sex discrimination. Therefore, an employee complaining of such an environment has to show that the discriminatory behavior was based on her sex. If all employees, male and female, are subjected to the same hostile environment (i.e., sex talk and radio banter), then no one has been treated differently because of his sex. In essence, it's an equal opportunity swine farm.

The court of appeals took a different view regarding the discrimination element of "hostile environment." Though male and female employees may have all heard the same words, many of those words are more degrading to women than to men (e.g., "bitch" and "whore"). To illustrate its point, the court pointed to racial harassment cases in which racial slurs and jokes aren't directed at black employees but are still made in their presence, resulting in a racially hostile environment. The same holds true, the court concluded, for a sexually hostile environment.

The court also looked at whether the environment was sufficiently "severe or pervasive" to constitute a sexually hostile environment. In many cases, our court of appeals has found that conduct that may be offensive and inappropriate among decent folk isn't necessarily bad enough to be illegal under Title VII of the Civil Rights Act of 1964. In this case, however, the court started by pointing out that conduct only has to be severe or pervasive, not both. In other words, really bad conduct may be sufficient even if it only happens once, and relatively minor conduct may be sufficient if it happens frequently.

In this case, the conduct happened frequently ― every day. And while some of the comments might be considered severe ― the only woman in the workspace was exposed to derogatory references to women and conversations about sexual acts ― they weren't necessarily sufficiently severe because they weren't directed at her. Nevertheless, the court found that the conduct could be considered humiliating to Reeves and could have made it more difficult to perform her job. As a result, a jury will have to decide whether the conduct was bad enough. Reeves v. C.H. Robinson Worldwide, Inc. (11th Cir., 2008).

When plan B doesn't work, you wish you had plan A

The argument that sexual banter was projected on everyone ― the equal opportunity harasser ― is one you can make to a judge to avoid a jury, but it's never one you want to make to the jury. Regardless of what the law requires, jurors believe that employees should be treated with respect. No female juror would want to be subjected to those comments every day, and no male juror would want his wife or daughter to work in that kind of environment. The better argument ― the one you can make to a jury ― is that you prohibit inappropriate sexual conduct, and when an employee reports a problem, you address it immediately.

Find out more about sexual harassment in the subscribers' area of www.HRhero.com, the website for Alabama Employment Law Letter. You have access to an HR Executive Special Report on the subject: "The HR Manager's Guide to Preventing Sexual Harassment." Just log in and scroll down to the link for all the Special Report titles. Need help? Call customer service at (800) 274-6774.

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