Posted on 09/23/2005 12:38:17 PM PDT by Help!
Screaming and yelling by men at work may now be sex-based discrimination if women at work find the behavior more intimidating than men do.
On September 2, 2005, in E.E.O.C. v. National Education Association, (No. 04-35029), the Ninth Circuit Court of Appeals ruled that the “reasonable woman” standard applies to workplace abusive conduct, even if there is no sexual content to the behavior.
This decision significantly expands the types of behaviors that may furnish a basis for a claim of discrimination.
Three women working for a labor union, the National Education Association, sued for gender discrimination claiming that the NEA created a sex-based hostile work environment for them through the conduct of an interim assistant executive director who frequently “screamed” at female employees in a loud and profane manner, with little or no provocation, shook his fists at them, stood behind an employee as she worked, and lunged across the table at another.
The conduct was not sexual, nor was it marked by sexual language, gender-specific words, sexual stereotypes, or sexual overtures.
While there was evidence that the same director raised his voice with men on occasion, and once frightened a male subordinate, male employees seemed to deal with that abuse with banter, and did not express the same fear of the director, did not cry, become panicked or feel physically threatened, avoid contact with the director, call the police, or ultimately resign, as did one woman.
The claims of the three women and the Equal Employment Opportunity Commission (EEOC) were dismissed on summary judgment by the Alaska District Court.
The plaintiffs appealed to the Ninth Circuit. The Ninth Circuit ruled that the district court committed error when it said that there must be behavior of a sexual nature or the motive for the behavior must be animus towards members of one sex to be sex-based discrimination.
The Ninth Circuit said, “There is no legal requirement that hostile acts be overtly sex- or gender-specific in content, whether marked by language, by sex or gender stereotypes, or by sexual overtures.” The real question, the court said, is whether the behavior affected women more adversely than it affected men. This question can be analyzed two ways:
• Is the effect of the behavior qualitatively different, and • Is the amount of the behavior quantitatively different.
Different Effects of Abusive Conduct on Women and Men Equals Disparate Treatment
Under the “reasonable woman” standard devised in an earlier case, Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991), the qualitative differences in the subjective and objective effects of the behavior are the way to determine whether men and women were treated differently. Because women found the behavior subjectively more intimidating than men did, and reasonable women would do so, the conduct treats women differently.
That it may not have been the director’s intent to treat women differently does not matter. What matters is the effect of the behavior, both subjectively, and objectively. While the court did not clearly differentiate the subjective from the objective, it took the extremity of the reactions of the plaintiffs to the director’s behavior as evidence that the behavior was objectively more intimidating to women.
One woman resigned; another filed a police report, a third did not put in for payment of overtime she worked because she was “too scared.”
Different Amounts of Abusive Conduct Directed at Men and Women May Equal Disparate Treatment
The quantitative difference turns on whether women were more frequently exposed to the abusive behavior than men. The NEA pointed out that as a teachers’ union, most of its employees were women, and women had more contact with the particular director.
This argument did not prevail, because, as other courts have ruled, an unbalanced distribution of the sexes and the fact that some men were harassed, does not defeat a showing of differential treatment.
The court did not say how many instances of abusive treatment would be enough, reserving that as a question for the jury. It did say that it was possible that in some cases quantitative differences in abusive treatment of men and women could be too slight to survive summary judgment.
Significant Expansion of the Law
This decision is a significant extension of the law of gender-based discrimination because it takes facially neutral, if undesirable, behaviors, and looks at how they differently affect women.
Previous cases, such as Ellison, and Steiner v. Showboat Operating Co., 25 F.3d 1459 (9th Cir. 1994) had involved behavior that had obviously sexual content. In Ellison, a male employee relentlessly pursued a female employee he wanted to date. In Steiner, a crude casino pit boss used sexual epithets, and explicit references to women’s bodies and sexual conduct.
In the NEA case, the court expanded the same model of legal analysis to conduct that was simply abusive, but without the sexual content. With this expansion employers can now expect to see allegations of the kind in the NEA case show up in more discrimination and harassment cases.
This case means that when employers permit abusive behavior in the workplace, their toleration carries a higher risk. If the abusive behavior will be actually and reasonably perceived as disadvantageous by women, the behavior may be discrimination.
There is no theoretical reason why the standard set in this case could not be further extended to race or other forms of discrimination.
Finally, the court’s logic raises the question of whether the case would have come out the same way if the director engaging in the abusive behavior was a woman. Given one of the Ninth Circuit’ remarks, perhaps not. The court said, “this case illustrates an alternative motivational theory in which an abusive bully takes advantage of a traditionally female workplace because he is more comfortable when bullying women than when bullying men.”
Practical Prevention Steps
As a practical matter, this decision suggests that employers should take the following steps to prevent claims like those of the plaintiffs in this case, by doing the following:
1. Take firm disciplinary action against abusive workplace behavior, and document the disciplinary action. Termination of repeat offenders may be necessary to avoid potential liability.
2. Adopt workplace policies that prohibit abusive, bullying behavior, and enforce the policies.
3. Make sure that discrimination prevention training includes the concept that abusive conduct that is not gender-specific could be gender-based discrimination, if the conduct has a subjectively and objectively more adverse effect on women.
Margaret Hart Edwards is a shareholder in Littler Mendelson's San Francisco office. If you would like further information, please contact your Littler attorney at 1.888.Littler, info@littler.com or Ms. Edwards at mhedwards@littler.com.
ASAPTM is published by Littler Mendelson in order to review the latest developments in employment law. ASAPTM is designed to provide accurate and informative information and should not be considered legal advice. © 2005 Littler Mendelson. All rights reserved.
I'm a woman and agree with you.
There is one on where dad is home baby sitting and cleaning up with a leaf blower and the kids say"That's not the way Mom does it".
Drives me nuts too!
Hmmmm
Never mind! (severely biting my tongue)
"Let me get this right. No manager is allowed to lose his cool even ONE time? No matter the circumstances? And if he does, he's gone, out of a job? Bosses get pissed, and raise their voices. It happens. So do fathers and mothers."
Jumping in here. I'll give you the yelling. Who cares. But no one should have to put up with a boss who goes at them as if to attack them.
This guy shouldn't be disciplined for sexual harassment since he appears to treat all his employees, male and female, like sh*t, but I can't imagine his anger problems contribute to workplace productivity.
"It's not about people's feelings or self esteem. It's about effective management. It's difficult to have any kind of respect for an adult who didn't outgrow temper tantrums."
Didn't say that. Didn't say that at all. You have some sort of baseline behavior standard in mind, that says that anyone someone raises his voice, he perforce has not outgrown "temper tantrums."
That's so ridiculous and off the mark I don't know where to begin. Just glad I don't work for you. And you should be real glad you don't work for me.
Safe travel.
That maybe true, but I get the impression that this guy acted this way all the time.
I have not yet discussed "abusive bosses." As for splitting hairs, that's what oversensitive types come up with when someone questions their argument. Let's call it a day.
I wish you safe travel.
I just hope that, as a male, I'm never considered one, through historical translation, who would eat a "bad" apple. ; )
Tehee... You know what? After joking about our leaf blower and threatening, I actually tried it once and it wasn't half bad!
Cleans the dust off the ceiling fans and vents just great! ;-)
Take happiness in it!
It's better than the silent treatment.
As a male, we have a lot to fear, if the feminist 4 th Reich were to fully come to pass.
Two words.....
Living, breathing.
We will be seeing a lot of those two words in coming times.
Cool! When can I claim "nagging" is actually sexual harassment?
The decision is itself discriminatory. It should read "reasonable person".
A glare and a menacing whisper works more effectively and scares more people.
See the job description for a Sith Lord...thanks to
http://www.blurty.com/talkpost.bml?journal=_code_red_&itemid=67575
Apprentice Sith Lord
Job Description:
An unexpected position has opened up in the Dark Side Consulting Group for an Apprentice Sith Lord. The ideal candidate for this position would like galactic travel and possess a complete understanding of, and competence with the Force, or demonstrate a willingness to learn.
Duties include:
Performing competitive intelligence, hands-on intervention in support of the Sith Master's planning initiatives, ability to travel the galaxy widely, and operating a variety of laser-powered hand weapons and high-powered space/air vehicles. Some slaying of enemies of the Dark Side is also required, which may be performed using the Force or hand weapons.
Qualified applicants would possess good communications skills (especially when speaking in menacing whispers), and would be action-oriented individuals and risk takers. A background in study of the Force (light side or dark) is desirable, as would typically be acquired by those with advanced degrees or significant course work in Jedi Arts from the Jedi Academy of Coruscant.
Applicants should also be familiar with holographic projection equipment, possess a valid galactic pilot's license (for all classes of ships), and must show a willingness to give in to their hate. A proven track record of using fear and/or Jedi mind tricks to control others is also desirable, as is the ability to speak several galactic languages. Ideal candidates for this position would also have no children or other living relatives who are strong in the ways of the Force. (A new hire would be given several weeks to meet this requirement.)
Compensation for this position is commensurate with experience, and is extremely competitive for this field. Benefits include a generous severance package, a company starship, and a dark-colored clothing allowance. The Apprentice Sith Lord reports to and works closely with the Sith Master, and experience in such small, team-based organizations is vital to the success of the master's plans. Discretion is also highly valued, as is the ability to see the future before it happens. Applications will be accepted until the position is filled.
"Does this mean that when women PMS men can sue for discrimination?"
That was my first thought...then it follows, what if the person you work with is bi-polar or some other mental malady which causes an out burst. The Co. can't fire them under the disabilities act and they can't make them take medication...they'll just pay pay pay.
Ain't going to happen.
Robert Reich was a short term experience. ; )
If it is a way of expressing a negative emotion, yes, it is a loss of self control. Cheers are also yelled, so something like that wouldn't be losing control. If it's done to be heard over a crowd, with no kind of emotion behind it, again, it's not a loss of self control. Any kind of "look at what you made me do" denotes handing off all responsibility for your actions to someone else.
Maybe it's sometimes a way to assert, maintain or take control.
It may work in the short term, but it is not a good long term strategy.
Statements like yelling represents a loss of control bother me because they suggest a recommended baseline for behavior that we're all expected to hew to. Well, screw that.
Act anyway you like, but if you want people to knock themselves out for you, it takes hard work from you.
"I guess women with PMS are now a protected class."
If this case was just about female employees not being able to tolerate a gruff boss, you'd have a point, but it's not that simple. This guy was shaking his fists at people and even went at someone. He's a tool and his superiors should've dealt with his behavior before it ever went to the lawsuit stage.
I've seen cases where women got bent out of shape over nothing. I've also seen cases where women were being genuinely harassed - pressured for sex, etc. - got no assistance and were forced to quit. Not every harassment case is legit, but they're not all bogus either.
This one, IMO, isn't a case of sexual harassment. It's a case of plain old harassment.
Cleans the dust off the ceiling fans and vents just great! ;-)
ROTFLMAO!
You know what? I found it's a great tool to make my Husky shake his tail after a bath also!
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