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"Sex Specific Profanity" Supports Sexual Harassment Claim

A good sexual harassment case has come out of the Eleventh Circuit Court of Appeals-the federal appeals court for the states of Georgia, Florida, and Alabama. In Reeves v. C.H. Robinson, a female employee claimed that for a period of almost three years there were daily instances of sexually offensive language and conduct in her workplace, including profanity that was derogatory toward women (such as “whore, bitch, tramp, slut” and even more disgusting language that we are too modest to repeat here), sexual jokes, and sexually explicit radio programs that were allowed to play in the office. The offensive conduct, however, was not specifically directed at the employee, and most of it she simply overheard during the course of her workday.

The employee eventually resigned and filed a sexual harassment charge against her employer. The lower court dismissed the case on summary judgment, holding that the harassment was not “based on” the employee’s sex because the conduct was not specifically directed at the employee, and everyone in the workplace-males and females-was exposed to it.

On appeal, the Eleventh Circuit reversed, and reinstated the employee’s case. Analyzing the “based on” requirement of the sexual harassment laws, the court ruled that “sex specific language”- which is language that is more offensive to one sex than the other-satisfies the “based on” requirement, whether or not the sexually harassing conduct was specifically directed at the employee.

The court also analyzed the “severe and pervasive” element of a sexual harassment claim. This element, which the courts have crafted to weed out claims involving sporadic or occasional examples of sexually harassing conduct, is satisfied when “the workplace is permeated with intimidation, ridicule, and insult.” The court also pointed out that this element has both objective and subjective aspects. In other words, the employee must not only feel that the harassment is severe and pervasive, but the employee must also be able to show that a reasonable person in the employee’s shoes would feel similarly harassed. Following U.S. Supreme Court precedent, the court laid out the factors that are relevant to the severe and pervasive determination:

• The frequency of the conduct;
• The severity of the conduct;
• Whether the conduct is physically threatening or humiliating, or merely offensive; and • Whether the conduct unreasonably interferes with the employee’s performance.

Applying these standards to the employee’s case, the court concluded that the employee could establish that the harassment was sufficiently severe and pervasive to avoid summary judgment
The case is a good reminder that not all harassment is illegal under the sexual harassment laws. An occasional or sporadic offensive utterance typically will not support a claim of sexual harassment.

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