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Men's Temper Tantrums That Bother Women May Be Sex Discrimination (9th Circuit Strikes Again)
ASAP Newsletter ^ | September 2005 | Margaret Hart Edwards

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.


TOPICS: Constitution/Conservatism; Culture/Society; Extended News; US: Alaska
KEYWORDS: eeoc; lawsuit; looneylefties; lunacy; nea; ninthcircus; sexdiscrimination; workplace
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To: John Robertson

"Bosses get pissed, and raise their voices"

Only incompetent bosses.

I've been managing teams in deadline-sensitive, pressure situations for 20 years, and never -- not once -- have I yelled at, humiliated, or intimidated an employee. Not because there weren't times when didn't want to, mind you, but because it achieves absolutely nothing (unless you regard throwing your managerial weight around as an end in itself). Fact is, carrying on like a bull in a china shop makes bad situations worse.

It's much better to get the other members of your team to put pressure on the screw-up. It's in their interests not to be carrying underperformers and/or goldbricks, their perceptions are more accurate, and they like to go home on time. So they'll know before you do if some is a professional SNAFU artist.

Management is really pretty simple: Lead by example, talk softly, and treat people as you like to be treated. It's that simple.


61 posted on 09/23/2005 1:09:52 PM PDT by Kiss Me Hardy
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To: Help!
... 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.

Sounds as he just couldn't deal with liberal idiots anymore. Many of us have felt the same.

62 posted on 09/23/2005 1:12:28 PM PDT by Mind-numbed Robot (Not all that needs to be done needs to be done by the government.)
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To: Humidston
You're so precious.... ;-)

ROFL...new tagline
63 posted on 09/23/2005 1:12:54 PM PDT by PaulaB (You're so precious.... ;-))
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To: peacebaby
I would have a very hard time administering CPR to someone like that. How's it go again, stomp on ribcage then blow on face or do you blow on face first?? Hhhmmmm.....
64 posted on 09/23/2005 1:13:30 PM PDT by Millee (As God as my witness, I thought turkeys could fly!!)
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To: peacebaby

I had a screamer as a boss once. He was yelling at me between client locations and I stopped the car on the side of the road, got out and sat on the trunk until he was done.

We had a "chat" on the freeway about adults talking to adults.

It worked.

We're still friends and this was 15 years ago.


65 posted on 09/23/2005 1:15:12 PM PDT by Dashing Dasher (There are things in life that will catch your eye, but only a few catch your heart. Pursue those!)
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To: Help!

Boy does this hit home. A woman lawyer at work, who yelled at me, filed a formal complaint against me when I had the gall to stand up to her....this occurred twice. She was the aggressor in both instances.

The complaint fizzled when my immediate boss, who was a direct witness to the second instance, refused to take any action against me.

The workplace has gone to hell....


66 posted on 09/23/2005 1:15:46 PM PDT by fizziwig
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To: PaulaB

Well....he is.... ROFLOL!

Glad you like it.


67 posted on 09/23/2005 1:16:37 PM PDT by Humidston (It's Bush's fault)
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To: Millee

Good lesson to learn, Millee. I'm smarter for it. In some strange way, it was an honor to have worked for him...everyone who works for him thinks the same... . I'm also a champion to have come out of it a stronger woman.

I see my former co-workers now. We have a bond of having survived it. I was sitting at ground zero. I was the punching bag, when the others weren't being hit.

Some time later decided to work for another man - he made the mistake of disrespecting me within the first month. I was outathere.


68 posted on 09/23/2005 1:16:56 PM PDT by peacebaby (Wasting my time standing in the waiting line.)
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To: VA_Gentleman
Not according to the Hillary and the Feminist double standard.

This is nothing but the feminist, N.O.W. way of slowly but surely way to dominate and take control over men, and that there ? is their true agenda.

They have to take jobs, money, and power away from men, so they can gain power themselves and dominate and take control over men.
69 posted on 09/23/2005 1:17:23 PM PDT by Prophet in the wilderness (PSALM 53 : 1 The FOOL hath said in his heart , There is no GOD .)
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To: Help!
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,

If that director did that with me, I would have been looking for a new job, and he would have been looking for a few teeth.

70 posted on 09/23/2005 1:18:32 PM PDT by dfwgator (Flower Mound, TX)
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To: Brilliant

Not according to the feminist, Liberals, and the N.O.W. crowd.


71 posted on 09/23/2005 1:18:46 PM PDT by Prophet in the wilderness (PSALM 53 : 1 The FOOL hath said in his heart , There is no GOD .)
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To: Dashing Dasher

One man used to burb while dictating...

One man loved to look at my breasts...

One man I enterviewed with told me he'd rather HIS wife be at home cooking dinner.

wierd stuff, I'm telling you.


72 posted on 09/23/2005 1:18:58 PM PDT by peacebaby (Wasting my time standing in the waiting line.)
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To: John Robertson
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.

If a guy occasionally raised his voice simply for affect as a motivating tool, I'm willing to give it a pass.

But if the guy doing the yelling has lost control of his emotions, he's nothing more than a bitch with huevos.

73 posted on 09/23/2005 1:21:21 PM PDT by Freebird Forever (A thousand Bravehearts are better than one)
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To: Humidston

Blonde?-- well, here ya go:

The very first ever Blonde GUY joke.....

An Irishman, a Mexican, and a blonde guy were doing construction work on scaffolding on the 20th floor of a building.

They were eating lunch and the Irishman said, "Corned Beef and Cabbage! If I get Corned Beef and Cabbage one more time for lunch,
I'm going to jump off this building."

The Mexican opened his lunch box and exclaimed, "Burritos again! If I get Burritos one more time I'm going to jump off, too."

The blond opened his lunch and said, Bologna again! If I get a Bologna sandwich one more time, I'm jumping too."

The next day, the Irishman opened his lunch box, saw Corned Beef and Cabbage, and jumped to his death.

The Mexican opened his lunch, saw a Burrito, and jumped, too.

The blonde guy opened his lunch, saw the Bologna, and jumped to his death as well.

At the funeral, the Irishman's wife was weeping. She said, "If I'd known how really tired he was of Corned Beef and Cabbage,
I never would have given it to him again!"

The Mexican's wife also wept and said, "I could have given him Tacos or Enchiladas! I didn't realize he hated Burritos so much."

(Oh this is GOOD!!)

Everyone turned and stared at the blonde's wife.

The blonde's wife said, "Don't look at me. He makes his own lunch."


74 posted on 09/23/2005 1:21:54 PM PDT by Mark (Proven scientific experiment: The NY Times flushes easily down the standard toilet.)
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To: Help!

As a woman I find this entire thing ridiculous.God am I glad my working days are over.

Men were men and women were women in my day and I LIKED IT THAT WAY.!!!!!!!!!!


75 posted on 09/23/2005 1:22:24 PM PDT by Mears (The Killer Queen)
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To: Help!

The camel's nose under the tent. Next they will be taking votes in the office to determine if you appear to be intimidating. I'm glad I only have three years left in the workplace zoo.


76 posted on 09/23/2005 1:22:40 PM PDT by Stentor
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To: peacebaby
I'm thankful that my CEO is a reasonable man
I deal with every aspect of his life so we have to have respect for each other to pull this off. He has his weird days when he thinks Bush is evil and trying to take over the world but then I give him the truth and he settles down.
77 posted on 09/23/2005 1:22:53 PM PDT by PaulaB (You're so precious.... ;-))
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To: Humidston
I have never worked with a man who acted the way some women do!

Simply put, we aren't of the same makeup.

Some however want to forgo reality and change that fact via law.

In the broad political scheme of things, blending of the genders in this way, creating an issue of sex out of every situation, creates a yellow brick road to the dissolution of differences between the sexes.

Hence, the eventual partner relationship, no male/female differences, and acceptability of male/male, male/female, and female/female situations.

Directive? Same sex marriage.

My vision may be considered an extreme mindset by some, however the 9th circuit is an extreme DC.

78 posted on 09/23/2005 1:23:45 PM PDT by EGPWS
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To: peacebaby

Been through plenty of it myself.

Gets better... really, it does...

I think.


79 posted on 09/23/2005 1:24:13 PM PDT by Dashing Dasher (There are things in life that will catch your eye, but only a few catch your heart. Pursue those!)
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To: LibertyRocks
...it represents a loss of control.

As you say, not only is that behavior counter productive it represents a forfeiture of leadership and that leads to potential manipulation, which means loss of authority, which leads to.... and on and on. It is bad management no matter the manager or the managed.

80 posted on 09/23/2005 1:24:44 PM PDT by Mind-numbed Robot (Not all that needs to be done needs to be done by the government.)
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