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.
These are NEA people, so I wouldn't expand that to women in general.
I seem to remember more screaming and yelling from women than from men.
That's the truth...working for this man, he came first in my life, before my family. That was so wrong. I got swept up in the headiness of it all.
never again.
All of us can agree, that this world is really messed up... more like Bizarro World..... were right = Wrong, Wrong = Right, up = down , down = up , light = darkeness, darkness = light , good = bad , bad = good.
Check this out. What is most interesting is how often the Supreme Court has *unanimously* reversed these clowns.
http://www.centerforindividualfreedom.org/legal/9th_circuit.htm
Personally, I think we'd be better off if handling sexual harassment had been left to employers. The courts have made a royal mess of the concept. Sure there would be occasions when employers refuse to act when they should but those injustices have to be weighed against the costs (monetary and otherwise) created by the monster that the courts have created.
The reasonable woman standard is news to me. I didn't know the Constitution gave one sex preference over another, and I thought such a concept was abhorrent to feminists.
The potential repercussions of this decision are unfathomable. What you get when you don't know what "is" means.
So have I. This decision is going to backfire on a lot of women if it is applied equally.
See ya, loser
"Yelling at a subordinate only causes more problems. It's the reason I try as a parent not to yell at my children as well - it represents a loss of control"
Okay, I was a little hard on you. Sorry.
But does yelling always represent a "loss of control"? Maybe it's sometimes a way to assert, maintain or take control. 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.
And I mean that in the nicest possible way.
"Ain't it amazin' how women want to be the exact equal of men, except of course when it is a bit inconvenient and uncomfortable to be equal to them."
Yeah, the yelling stuff as sexual harassment is ridiculous and, as a feminist, I say suck it up, girls, or quit, but folks seem to be seizing on the yelling and conveniently ignoring that this guy also shook his fists and lunged across a table at someone. I find it hard to believe that that's something that most guys would just shrug off.
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.
Employees might do good work for an out of control boss, but it will be despite the yelling, not because of it. Employees of yelling bosses hide most of the mistakes they make, so there are times when small problems fester into big problems. When employees cover for each other, the boss is always the last to know what's going on in the place they "manage".
"So if I burst into tears when the women at work make cruel jokes about my favorite sports team, can I sue? "
Only if you cry.
Slowly, but surely, the Feminist 4 th Reich is coming to pass.
"Only incompetent bosses"...raise their voices.
Watch those blanket statements. You just aced out General George Patton, and he was more competent than you and me and everyone else on this thread put together.
I have a constitutional resistance to "baseline" behavior--if I raise my voice, I am therefore incompetent. That sort of nonsense permeates society, gets inculcated into people, and before you know it, I one day choose to raise my voice in a situation, and instead of the employee realizing, I'd better listen up here, he defaults to: "Wow, my boss is really incompetent if he has to yell."
Even conservatives, in time, absorb the feel-good pabulum from the left, then spit it back out. Nation of pussies.
Then someone will claim that "=" doesn't exist and it's 2nd verse same as the first....
Too many people are he!! bent on creating reality instead of accepting reality.
does that include women throwing ashtrays???
You can "yell and scream" (all caps) in EMAIL too......I wonder if they'll count THAT?
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