11th Circuit OKs Suit Based on Sexual Language in Office

[Harold Schiffman]

11th Circuit OKs Suit Based on Sexual Language in Office
Alyson M. Palmer
05-05-2008


In a rare win for a plaintiff alleging employment discrimination, the
11th U.S. Circuit Court of Appeals has held that a woman can bring a
harassment claim for language not referring specifically to her.
Plaintiff Ingrid Reeves contends that she was subjected to sexually
offensive language -- words like "bitch" and "whore" -- on a daily
basis in her job as a transportation sales representative. Reeves sued
C.H. Robinson Worldwide, a Minnesota-based logistics company, which
employed Reeves in its Birmingham, Ala., branch office from 2001 to
2004. While some of the comments of which Reeves complains were said
directly to her -- as when she was asked to "talk to that stupid bitch
on line four" -- nothing in the 11th Circuit decision suggests that
Reeves heard her co-workers make derogatory comments about her
specifically. Most of the language at issue was simply in nearby
conversations or on the sometimes sexually charged local morning radio
program favored by some of Reeves' colleagues.

The program occasionally included discussions of subjects like women's
breast sizes and pornography. Also, Reeves says on one occasion she
walked past the workstation of a co-worker and saw an image of a naked
woman on a computer. The co-worker apologized when confronted by
Reeves, according to the company's brief. All but one of Reeves'
co-workers were men, and the only other woman worked in a different
area of the office. U.S. District Judge Inge P. Johnson of the
Northern District of Alabama granted summary judgment to C.H.
Robinson. But on April 28, the 11th Circuit panel overturned that
decision, suggesting it was breaking new ground for the circuit in the
process.

"The specific question that faces us here is whether harassment in the
form of offensive language can be 'based on' the plaintiff's
membership in a protected group even when the plaintiff was not the
target of the language and other employees were equally exposed to the
language," Judge Charles R. Wilson wrote for the panel, which included
Chief Judge J.L. Edmondson and U.S. District Judge Cecilia M.
Altonaga, visiting from the Southern District of Florida.
Interestingly, Wilson cited a major sexual harassment decision from
March 2007 in which the 11th Circuit upheld summary judgment for the
defendant, despite allegations the plaintiff's manager in that case
had once greeted her, "Hey, Babe, blow me." In its opinion in that
case, Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, Judge
Edward E. Carnes wrote that an "equal opportunity curser" doesn't
violate the federal gender discrimination statute.

But, Wilson noted, Carnes also acknowledged in his 2007 opinion that
"sex specific" profanity, such as the words "bitch" and "slut," is
more degrading to women than men and thus could be considered "on the
sexual harassment scales." And the 11th Circuit already had held that
use of racial epithets could support a hostile work environment claim
under the federal discrimination statute, even when they weren't used
directly in reference to the plaintiff, Wilson explained. "Though we
have never explicitly held that such 'sex specific' language satisfies
the 'based on' element in a sexual harassment hostile work environment
case even when the language does not target the plaintiff," Wilson
continued, "we do so today in light of our race-discrimination cases."

Patricia G. Griffith of Atlanta's Ford & Harrison, who was not
involved in the case but represents employers, said the decision is
important both because of what it says about sex-specific language not
directed at a plaintiff personally and because it indicates that the
pervasiveness, or frequency, of harassment, as opposed to the
severity, can carry a claim. "It will open up a can of worms in some
regards," said Griffith, "because I think before employers could say
if people are just out there, and they talk their own talk, and they
do their own thing, we don't have to monitor that as closely as if
it's directed to an employee." Some employers already have adopted
policies about language, but others have not, she said.

"For the more sophisticated employers, it's not going to make a
difference," she said, "but for your more blue-collar employers, it
may require more of a cleanup."

Birmingham attorney Christopher A. Mixon, who argued for the company
on appeal, didn't return calls seeking comment. But on appeal, Mixon
and his colleagues at Ogletree, Deakins, Nash, Smoak & Stewart
acknowledged that Reeves received good evaluations until she resigned
in March 2004 -- arguing that her excellent reviews supported their
position that the behavior of Reeves' co-workers wasn't bad enough to
hurt her performance.

They argued there was no evidence that the office behavior was
"motivated" by hostility toward women in the workplace. Instead, they
argued in a brief, virtually all of the language Reeves complains
about was "uttered in frustration or anger, rather than in a sexual
context."

The company's lawyers referred to evidence that the foul language
offended some of the office's men, not just Reeves, a graduate of the
United States Merchant Marine Academy who had worked aboard container
ships. The lawyers also stressed that Reeves' branch manager -- albeit
the same employee who made the comment about the woman on line four --
told co-workers in their performance evaluations to watch their
language.

Minneapolis lawyer Douglas L. Micko, who argued the successful appeal
for Reeves, said the opinion appears on its face to be a "little more
revolutionary than it really is," noting the 11th Circuit's prior
consideration of the issue in race discrimination cases. "There's no
case that I know of, and certainly in the race context, that as long
as you put a white person in the room you can say whatever you want,"
he said.

Micko is leaving the firm of Sprenger & Lang, and he's not taking the
case with him. Firm managing partner Steven Sprenger, of Washington,
said the 11th Circuit has a reputation for being hostile to employment
discrimination claims. "I don't know how well-deserved it is," he
said, "but that's the reputation." His firm is having some success in
the southeast, however.

Specifically, the firm has another sexual harassment case pending
against C.H. Robinson in the Northern District of Georgia. That case
involves four plaintiffs from two different branches in the Atlanta
area. U.S. Magistrate Judge Gerrilyn G. Brill has recommended that the
sexual harassment claims survive the company's motions for summary
judgment, and the company has filed objections.

Sprenger & Lang also represented the plaintiffs in a class action
filed against C.H. Robinson in Minnesota federal court in 2002. Judge
Joan N. Ericksen declined to certify the sexual harassment claims as a
class in that case, saying that the plaintiffs lawyers hadn't provided
enough evidence that the company had a policy and practice of
tolerating and promoting harassment. But the judge certified classes
on other gender discrimination claims based on compensation and
promotion; Ericksen signed off on a consent decree and $15 million
settlement of those discrimination claims in 2006.

The 11th Circuit case is Reeves v. C.H. Robinson Worldwide, No.
07-10270.http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=900005561741

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