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.
Against a MAN? Please. Joyous release of the "inner bitch" by yelling is a celebration of social justice, a demonstration and validation of the self-esteem that is released with feminist empowerment, a primal bitch-slap to the disgusting male oppressor, blah blah blah, etc.
Thank you!
Unfortunately, lots of people on this thread seem to think the most paramount thing in the workplace is to be "treated nicely." When you point that out, they immediately leap to the conclusion that you are in favor of "abusive" bosses!
A majority of leaders with passion, vision and fire in the belly (to name just three cliches) are very often major pains in the ass. Deal with it. Further, I think every person should have at least one "unforgettable" boss, if only to have someone to compare all the rest of them to.
So this isn't a joke article from the Onion eh? Good grief, how stupid is this?
Can you just believe this ka-ka??? I am SO sorry. What a load of ... bologna. My brother-in-law hired a guy, in construction, who had been working with a bunch of women, as the head. He said, "PLEASE hire me. I cannot stand the tears anymore." hahahah. I am ashamed of my fairer sex sometimes.
Plus, what about when the women stamp their little feet and shriek?? I bet that doesn't count, does it? That's just them 'getting their feelings out.' (I told my son's psychologist -- 'we believe in him stuffing his feelings.' haha).
I haven't read all of this thread. I don't think behavior such as that described in the OP is sexual descrimination, but I can tell you I would not accept such behavior from a superior or anyone else for that matter. I can tell you that I will not be yelled at by anyone. If a boss has a problem with my work there are acceptable ways to let me know and yelling at the top of your voice isn't one of them. I have been dressed down on a few occasions and it can be done without yelling. And I'll tell you, the first time he lunged across a table at me would be the last. I WILL stand up for myself and I will NOT put up with such behavior. It may be my last day on the job, but before I go out he would most definitely know what I though of his behavior.
I won't take that behavior from anyone. Period.
And the women at my company wonder why we men never talk to them, look them in the eye, go to lunch with them, etc.
Not worth losing your job.
you forgot: "...patriarchal penile rapist hegemony".
"Only if he cries and/or wets his pants."
I could do that. How much do I get?
"barefoot"
Hey! I *like* sexy shoes on a woman.
"Does this mean that when womaen PMS men can sue for discrimination?"
What if a woman yells at a man out of the frustration of having a bad hair day, is that discrimination?
"The reasonable woman standard is news to me. I didn't know the Constitution gave one sex preference over another"
Well, the English common law "reasonable man" standard handed down for hundreds of years treated men and women equally. That's clearly discriminatory.
A long, long time ago, when the Earth and I were both young, I was one of the top fencers in the US.
It seems indicative of *something* to me that, well before I moved into the top hundred men, I was a lot better than the top five women. Enough better that the odds of my losing a bout to one of them were nil, which was not the case with any man in the top 200 or so.
No, daarlink. It is merely de voman being in touch with her inner self and not keeping streeful feelings locked inside. (lmao)
LOL!
This occured at the NEA (the national teachers union). The teaching profession is predominantly female. I have a feeling that the NEA has a high percentage of women.
How much you want to be that the real reason for this lawsuit is a bunch of feminist women at the NEA wanting to tilt the playing field so that no male executive can ever dare to attempt to discipline a female subordinate? This would mean that only a female exec could be hired to supervise women (thus creating more demand for female execs over the short term, but also a long-term trend towrads outsourcing to places that did not have such an insane legal system)
I know what you mean about the itchy whacking hand.It's hard to believe that when I was growing up,we all knew to say "Ma'am" and "Sir",and that we were not of the least importance in the "real"(adult) world,in the matter of having any sway or input,I mean. Like my Dad said, he wasn't running a democracy.
I wish I could forget the entire feminist lexicon.
You're exactly right. Someone in authority doesn't need to demean his employees. For a starter these guys should be sent to anger management and learn how to act like a professional. IMO, if someone treated my daughter like that, he would deserve to be sued.
I had a similar experience. Aggressive women tend to express their aggression by complaining to anybody who will listen, and making charges right and left. So it results in legal protections being abused by female aggressors, and the meek women being too meek to take advantage of the protections
This silly ruling is completely consistent with previous rulings by the 9th Circuit (and others, unfortunately) that it's not the behavior that counts but the way it is perceived by an approved minority.
They don't usually say that last part out in the open, but that IS the standard.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.