;-)
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.
This is hilarious. If he treats these women the same as men, and they react differently then he's treating them differently and therefore he's a misogynist chauvinist abusive patriarchal pig. OTOH had he treated them differently in the first place then he'd still be a misogynist chauvinist abusive patriarchal pig.
Can't we charge these 9th circuit judges with some crime or at least get them committed to a mental institution. I like how they use their earlier insane rulings rulings as precedent. Stare decisis == stupidity
;-)
I used to work with someone like that. He was removed to another department where he wasnt in charge of people..
Gals do not "fight fair", using tactics like nail scratching, pulling hair -- I have known some to pull off the pumps and wave those spikey heels as a weapon.
Instead of whining and requiring the courts to have to get involved here, especially when there are THREE women complaining over the same man, how 'bout you gals screw up the courage and tell this man to shut it? DEMAND that he treat you, not just as a lady, but a HUMAN BEING? No employee must put up with the stuff, put a stop to it yourself! If you get canned for speaking up, then go to HIS boss, or better, the president of the company and discuss ... you honestly think you won't get your post back? Perhaps a better one, since they will move you out of his jurisdiction?
Loudmouthjerk gets something in his file at the very least. And you handle the situation as a mature, secure person It's just not rocket science here.
of course my darling. When I have a bad hair day, everyone has a bad hair day. ;-}
The ninth circus court of black robed kooks and terroists strikes again, how could so many fools and idiots be appointed to judgeships?
Oh yeah, the politicians who love and tax us for the chillun sake appointed these sexist racist bigots.
If you can prove great humiliation that led to erectile dysfunction, the sky's the limit.
Tee hee, an aside here ... years ago, my mom had a vanity plate on her car, but she spelled it with DOLLINK. She never HAD so many people come up and tell her how much they loved that!!
I will sue the next time I have to watch a chic movie.
It really just has to do with character, not sex. If someone yells and screams, lunges -- THAT is inappropriate, period. But to make it a sex-discrimination crime elevates it to a 'more worthy' violation. Like a hate crime. 'Appropriate' is more appropriate if you're a woman.
I think this is so wrong.
The NEA is a bunch of whiney, cry-baby, power-hungry women. And too often the Principals are frightened of women and afraid to stand up to them. Bad combo.
Hahaha, you said "it's Julie"???? hahahaha, great job. worth being fired. and at your next interview, you said -- "I was fired because I ..." . oh hahaha. Was it Gray Davis, by any chance?? didn't he scream and holler??
"spelled it with DOLLINK"
OOOOOOOh - I like that! I like that very much. If I had not just reregistered my car, I would get that on my plates. THAT IS GREAT!
I'm a boss who has chewed a subordinate's @ss more than once, and would do it again.
Some folks can be led by example. Some need a kick in the rear end. There is no universally effective way to deal with people - each one is an individual and will respond differently.
I find that waiting until they start to wind down (with no reaction), then sweetly and quietly asking "Are you finished?" makes then turn the most extraordinary shade of purple...
I'm in the USAF. The USAF doesn't allow (formally) additional duties as punishment unless full proceedings have been held. Hitting a person is also a no-no. And I don't have the option of firing a subordinate for being stupid, nor do I have the option of hiring who I want. I have to take what I get, and then get performance out of them regardless.
That is why the fine art of @ss-chewing is worth learning. Used correctly, it gets the job done on someone who would take years to learn by my good example - or would never learn.
There is also nothing wrong with well-earned public humiliation. It can set standards and encourage others to perform.
Leadership has no universal rules. Different people respond in different ways to different actions - it is up to the leader to reach into his bag of tricks and find the way that works best for each individual.
I've seen too many ignorant goofballs straighten out after a good chewing to believe it is 'always' wrong. And I've talked to too many senior NCOs who say their lives were turned around - in a positive way - by someone who kicked their rear end until they learned to perform without it.
Must be nice to be able to choose who you hire, or have quiet talks that inspire future performance. But when you're out in the field 10,000 miles from home and you have a boat anchor in the group...well, an attitude adjustment can be in order. My all time favorite that I heard about was when some guys grabbed a 'boat anchor' type and threw him into the slit latrine & told him they'd do it daily until he got his act together. Needless to say, he started working harder right away - and the senior NCOs & officers had the good sense to look the other way.
Wonder what the 9th would say about that?
Not if they are government employees and work for the union. They have protection against arbitrary disciplinary actions. They got rights you know.
Brilliant!
ROTFLOL!
I'm making the "Y" over my head right now,
and heading next to the "M"...
and so it goes. ;o)
Finally someone else got the real point of the story.
It's against the NEA! They're eating their own again!
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