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.
Just looking at what happened to Terry Schiavo, and the Liberals/Democrats/Feminist sacrament ( as Rush says it ) and top agenda of Abortion, it is not a far stretch to see were the feminist want to go.
I tolerated it once, decades ago, and hated myself forever for it.
Should it happen again I will quietly say whatever it takes to provoke a physical assault so I can nail the bastard to the wall.
"Harrassment, Intimidation, or Bombast" have been illegal since the Fair Labor Standards Act of 1966 or so.
Anyone have the picture of the iced up "hell" highway sign?
No it isn't, however one can find contentment with the mindset that they aren't going to finish their trip.
You've crystallized exactly what my thoughts werte concerning..."feel good management".
New Orleans and Louisianna are full of it...look where it got them when the storms struck!
Thank You!
That's what I tell my young niece-I'm so glad that I fell in love with an "old school" kind of man,and don't have to find a husband from her generation. I can't imagine being married to a guy who I would have to fight for the mirror and closet space,and who would be sneaking my hair products all the time,hehe.
Cowboy up ladies. Scream and yell back, works for me.
I'm sick of those,and all the shows where the children are always portrayed as having to clue in the helplessly hopelessly out of date parents. But then I haven't watched network TV in decades,especially sitcoms.
"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."
That's right. All we women think exactly the same and we act exactly the same and we have the exact same feelings about things. Hell, we're completely interchangeable.
You know, it is possible to have a civilized debate on gender matters without denigrating every member of the opposite sex, especially since you're probably the first one to get bent out of shape when some woman unfairly complains about "you men."
Patton's managment style isn't really germane to the modern office. If I had the power to throw office miscreants in the stockade, send them on punitive 20-mile marches, or just plain slap 'em around, well I wouldn't need diplomatic skills.
If you have to yell, there's only thing worth saying: "You're fired!"
"So if I burst into tears when the women at work make cruel jokes about my favorite sports team, can I sue?"
Yes, but only if the team isn't the NY Rangers. In that case, there's no judge on earth who wouldn't tell you you should be used to it by now.
What do you call a blonde in the freezer? frosted flakes.
What do you call a blonde in the freezer? frosted flakes.
You know I had to say it twice to let the blondes get the joke. :)
More than a decade ago, I once had a very abusive FEMALE boss in the Hillary Clinton mode -- so should I have sued for sex discrimination?? Oh, no, I guess unless I cried at work it would not count.... ?? This is absurd.
Highly abusive a-holes should be regarded as unprofessional and fired, but sex/gender should not enter into the issue.
"So if you, for instance, say in a firm, level voice at normal speaking volume that "the work is not up to standard and that it will have to be redone to met an important customer deadline" and, in response, she cries, are you then guilty of sex discrimination under the "reasonable woman standard"? "
Yes. There is a major engineering company in the Houston area that has that policy.
Men should sue women for gossiping in the workplace. THAT, more than yelling, causes a hostile workplace.
Just glad I don't work for you. And you should be real glad you don't work for me.
You would be fortunate to have an employee like me. I'm no wilting flower. I spent years as the middle man between a boss who tends to fly off the handle & the people doing production. Eventually, the main shop foreman forced the boss to stay off of the production floor.
I wrote the company's employment manual, with warning procedures & the like. When the manual was followed, we successfully defended against unemployment claims. I wrote the manual to prevent my best friend from making an unemployment claim, because she needed to get fired. While I was working on the manual, she realized she needed to quit & found another job.
If a man gets violent in the workplace by punching things or whatnot, a man may feel he can defend himself against the other man if he gets physically violent to them personally. A woman wouldn't feel that way, generally speaking.
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