Court rejects claim that harassment directed at both men and women was not unlawful; Also showing: Another Christmas party drunken grope
Holding that a female employee could sue for hostile work environment based on sexually explicit and “sexist” comments and graffiti, even though some of it was directed at both men and women, the Second Circuit Court Of Appeals reversed summary judgment for the employer on a hostile work environment sexual harassment claim.
In Petrosino v. Bell Atlantic, Nos. 03-7366, 03-7708 (2nd Cir. 9/29/04), the court characterized the work environment as “more reminiscent of a locker room than a place of business.” It included frequent sexually demeaning conversations. “Although male co-workers often insulted each other in these exchanges, the substance of their remarks always conveyed a profound disrespect for women.”
When working outdoors, the plaintiff confronted “crude sexual graffiti scrawled by co-workers inside terminal boxes, [including] headless women with their legs in the air, women’s legs wide open,” etc.
Significantly, there were numerous remarks that were not particularly sexual, but degrading to women in general, or to plaintiff because of her gender, such as references to her menstrual cycle, calling her “a damn woman,” telling her to calm her “big tits down,” and statements that women were too “simple,” “too sensitive,” and “too damn thin-skinned” to work at the garage.
So, you wonder, what was the issue? Obviously an actionable hostile environment, right?
Not so fast — the district court, in the decision the 2nd Cir. reversed, concluded that no jury could reasonably find this work environment objectively hostile to women because evidence of incessant sexually offensive exchanges and omnipresent sexual graffiti was not “motivated by hostility toward [the plaintiff] because of her sex.”
The Second Circuit disagreed, despite acknowledging case law holding that a work “environment which is equally harsh for both men and women” cannot support a claim for sex discrimination. The court said:
The mere fact that men and women are both exposed to the same offensive circumstances on the job site, however, does not mean that . . . their work conditions are necessarily equally harsh. . .
The comments and graphics that permeated [the] work environment may have sexually ridiculed both men and women, but there is an important, though not surprising, distinction. The conduct at issue sexually ridiculed some men, but it also frequently touted the sexual exploits of others. In short, the insults were directed at certain men, not men as a group.
By contrast, the depiction of women in the offensive jokes and graphics was uniformly sexually demeaning and communicated the message that women as a group were available for sexual exploitation by men. Such workplace disparagement of women, repeated day after day over the course of several years without supervisory intervention, stands as a serious impediment to any woman’s efforts to deal professionally with her male colleagues. . .
In sum, although all . . . employees at the [workplace in question] were routinely exposed to sexually offensive language and graphics, we conclude that a reasonable jury could find this conduct more demeaning of women than men and, therefore, the evidence should not have been excluded from an assessment of the totality of circumstances in considering [the employer's] motion for summary judgment.
This case is not reason for defense lawyers to give up entirely on the defense that some conduct was equally offensive to men and women. After all, this argument convinced the District Court here — in the decision that was reversed — and under different circumstances sexually explicit remarks and images may indeed be “equally harsh for both men and women” and therefore not actionable.
It is reason to make sure that harassment training emphasizes that sexual harassment is a form of sex discrimination and that non-sexual “sexist” remarks are prohibited by company policy.
Another interesting little fact in this case – there was only one physical sexual advance described. Guess when and where it happened? Yup, at the company Christmas party, and the assailant had been drinking.
Why do I mention this? Because the number of harassment incidents occurring at Christmas parties is grossly disproportionate to the amount of time employees spend at such events. I’m not sure what the policy consequence should be, but I am pointing out that employers should beware the potential of this type of this conduct at such events, particularly if drinks are flowing freely.
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