Archive for February, 2010

Hostile Work Environment Claims in the Wake of Corbitt and Reeves

We frequently advise clients that what is alleged to be “sexual harassment” and what is considered “actionable sexual harassment” are frequently not the same and that conduct that may be considered by most laymen to constitute “sexual harassment” is not “actionable sexual harassment” in the Eleventh Circuit.  This point has never been more clear than in the Eleventh Circuit’s recent decision of Corbitt v. Home Depot, U.S.A., Inc., 589 F.3d 1136 (11th Cir. 2009), which may have made proving a hostile work environment claim virtually impossible.

In this decision, the Court reiterated that the “sufficiently severe or pervasive” requirement for a hostile work environment claim does not include “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.”  However, the Court went a step further and found much of the conduct alleged to have created a hostile work environment to be simple flirtation, which is “part of ordinary socializing in the workplace and should not be mistaken for discriminatory conditions of employment.”  The conduct at issue, made by a male supervisor to two male subordinate employees, included physical conduct such as:

  • Putting his hand on the employee’s thigh;
  • Pressing his body against the employee such that the supervisor’s body was touching the employee’s “privates;”
  • Massaging of the neck and shoulders;

and comments such as:

  • Telling that the employee was “the Italian heifer that I like;”
  • Telling the employee that he was “cute;”
  • Asking the employee whether he was happily married;
  • Telling the employee that his hair was beautiful and that he liked his green eyes;
  • Telling the employee that he “like[s] the rough look;”
  • Commenting that he could show the employee how to be gay and he would “like it;”
  • Questioning whether the employee “wore boxers or briefs or nothing;”
  • Asking if the employee colored his hair and remarking that it must be the employee’s “natural color down there;”
  • Recommending various gay websites so the employee “could see what [the supervisor] is talking about;”
  • Stating that the employee was not his “usual type” but that he “could not stop thinking about” the employee;
  • Commenting that he liked the employee’s “baby face” and that he was “small and cute;”
  • Inviting the employee to come to his hotel room on two occasions.

In Corbitt, the Eleventh Circuit held that, even if the alleged conduct was frequent, the majority of the alleged touchings were not offensive and were not sufficiently severe to support a hostile work environment claim.  The Court explicitly rejected the idea that the supervisor’s conduct was more severe because it was directed at someone of the same sex, rather than the opposite sex.  Moreover, the Court held that, while some of the comments may have been offensive, the fact that the majority of the comments were not offensive and were made over the telephone led to the conclusion that they were not sufficiently severe or pervasive to support a hostile work environment.

After the opinion in Corbitt, it appeared that a plaintiff’s burden to prove a hostile work environment became a lot heavier.  However, just a month after the decision, the Eleventh Circuit issued a landmark opinion that significantly favors plaintiffs in sexual harassment cases, holding that certain gender-specific words like “b*tch” can be enough to create a hostile work environment, even if they are not used explicitly in reference to the plaintiff.  Reeves v. C.H. Robinson Worldwide, Inc., 2010 WL 174074 (11th Cir., Jan. 20, 2010).

Ingrid Reeves worked as a transportation sales representative for C.H. Robinson and claimed she was subjected to hearing words such as “b*tch,”  “wh*re,” and “c*nt” from male co-workers on a daily basis, although there was no evidence that the words were directed personally towards her.  Most of the language was used in conversations she overheard between co-workers and in sexual jokes exchanged around the workplace.  In March 2004, Reeves resigned and sued the company, alleging she had been subjected to a hostile work environment in violation of Title VII of the Civil Rights Act.  The trial court granted summary judgment to C.H. Robinson on the ground that the alleged harassment was not “based on” Reeves’s sex, a requirement for proving a hostile work environment under federal law.  On appeal, an Eleventh Circuit panel stated that it was explicitly holding for the first time that “sex-specific” language satisfies the “based on” requirement for a hostile work environment claim even when the language does not “target” the plaintiff.

On rehearing before all active judges, the court unanimously held that words and conduct that are sufficiently gender-specific and either severe or pervasive may state a claim of a hostile work environment, even if the words are not directed specifically at the plaintiff.  Judge Stanley Marcus, who wrote the opinion, stated: “It is enough to hear co-workers on a daily basis refer to female colleagues as ‘b*tches,’ ‘wh*res’ and ‘c*nts,’ to understand that they view women negatively, and in a humiliating or degrading way.”  C.H. Robinson maintained that its employees used the words to refer to both men and women and that, therefore, the terms cannot themselves be gender-specific.  Marcus rejected the argument, noting that such words have gender-specific meanings.  “Calling a man a ‘b*tch’ belittles him precisely because it belittles women.  It implies that the male object of ridicule is a lesser man and feminine, and may not belong in the workplace.  Indeed, it insults the man by comparing him to a woman, and, thereby, could be taken as humiliating to women as a group as well.”  The evidence, therefore, was sufficient so that a jury could reasonably find a hostile work environment.

It is not known whether C.H. Robinson will petition the Supreme Court for review, but for the moment, the Eleventh Circuit’s unanimous decision marks a major victory for plaintiffs alleging sexual harassment in the workplace.  Furthermore, many employers will likely be forced to revise their harassment policies or implement additional training in order to protect themselves from liability.

The full opinions can be accessed at no cost from the Eleventh Circuit’s website at www.ca11.uscourts.gov.

The attorneys at Buckley Brown are available to assist you in preventing and defending sexual harassment and other employment discrimination claims.

For more information, please contact Timothy Buckley III, Esq. at (404) 633-9230.


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