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The Ninth Circuit Rules that Harassing Workplace Conduct Directed at Female Employees May Violate Title VII Even in the Absence of Direct Evidence that the Harassing Conduct or the Intent that Produced It Was “Because of Sex.”

September 2005

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On September 2, 2005, a three-judge panel of the Ninth Circuit issued a unanimous decision in EEOC/Christopher v. National Educ. Ass’n, ____ F.3d ____, 2005 WL 2106164 (9th Cir. 2005), reversing a U.S. District Court of Alaska decision holding that alleged sexual harassment could not constitute a violation of Title VII’s prohibition on sex discrimination without evidence that the harassment was “because of sex.”

“The Ninth Circuit held that 'there is no legal requirement that hostile acts be overtly sex- or gender-specific in content; rather, sex- or gender-specific content is but one way to establish discriminatory harassment.' The ultimate question is whether 'members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.'”

In reversing the District Court, the Ninth Circuit held that an employer’s offensive conduct that is not facially sex-specific nonetheless may violate Title VII if there is sufficient circumstantial evidence of qualitative and quantitative differences in the harassment suffered by female and male employees.

Facts in National Education Association

NEA-Alaska is a labor union that represents teachers and other public school employees. Since early 1998, Thomas Harvey held positions at NEA-Alaska’s Anchorage office, including Interim Assistant Director, Assistant Executive Director, and currently Executive Director. Three female employees of the Anchorage office filed charges with the EEOC based on Harvey’s workplace conduct. The EEOC filed an action against NEA-Alaska and NEA National in July 2001, alleging that the organization created a sex-based hostile work environment. NEA moved for summary judgment, arguing that there were insufficient facts for a jury to infer that there existed a hostile work environment or that any alleged harassment was “because of sex.” The District Court granted summary judgment to defendants, holding that a reasonable trier of fact could not find that the alleged harassment was “because of sex” within the meaning of the statute. Plaintiffs appealed.

The record reveals numerous episodes of Harvey shouting in a loud, hostile, and profane manner at female employees with little or no provocation. One of the plaintiffs described an incident in which Harvey used profane language towards her after she returned from a visit to her dying sister, an incident she described as “astonishing and . . . cruel.” Harvey often accompanied his language with hostile physical actions. One plaintiff testified that Harvey often came up behind her silently while she was working, standing over her and watching her for no reason.

The second plaintiff testified that Harvey once accused her of taking breaks with two other employees in order to talk behind his back and while accusing her of this, he “lung[ed] across the table” and shook his fist at her. On a separate occasion Harvey came up behind one of the plaintiffs while she was speaking to a local union president, grabbed her shoulders, and yelled at her to “get back to [her] office.”

The third plaintiff testified that in one instance, Harvey “pump[ed] his fist in [her] direction” to make his point. She told him that she felt he was being physically threatening. On another occasion, she called the police and filed a report following her therapist’s advice that she document his physical threats. The three female employees’ allegations of Harvey’s physical and verbal conduct was confirmed by other witnesses, including male employees.

The record is clear that Harvey’s behavior intimidated female employees. His behavior left female employees feeling that they were “in jeopardy” or “physically threatened most of the time” when Harvey was at the workplace. The female employees testified that Harvey’s behavior created a general atmosphere of intimidation in the workplace that was “like working with a ticking time bomb.”

Ninth Circuit’s Decision

The Court acknowledged that Harvey’s repeated and severe instances of shouting, screaming, foul language, invading personal space and threatening physical gestures were not on their face sex- or gender-related. The Court conceded that Harvey never made sexual overtures or lewd comments, referred to women employees in gender-specific terms, or imposed gender-specific requirements on women employees. However, the Court noted that there is no legal requirement that hostile acts be overtly sex- or gender-specific in content; rather, sex- or gender-specific content is but one way to establish discriminatory harassment. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998). The ultimate question is whether “‘members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.’” Id. at 80-81 (1998), quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993).

The Ninth Circuit found that the District Court erred by focusing on whether “any of the exchanges between Harvey and Plaintiffs were motivated by lust” or by “sexual animus toward women as women.” The Ninth Circuit held that the proper test was whether the pattern of abuse in the workplace affected women more adversely than it affected men, i.e., the behavior had a “differential effect” on women. The “differential effects” test looks at both the qualitative and quantitative differences in the way men and women experience workplace conduct. Evidence of differences in subjective effects of harassing conduct is relevant to determining whether or not men and women were treated differently, even when the conduct is not facially sex- or gender-specific.

Since the record presented a question as to the objective differences in treatment of male and female employees and strongly suggested that differences in subjective effects were very different for men and women (e.g., “bantering back and forth …with the boys” versus “repeated and severe instances of shouting, ‘screaming,’ foul language, invading … personal space … and threatening physical gestures” towards women), the plaintiffs presented a jury question that the daily pattern of verbal and physical intimidation could satisfy the “sufficiently severe” requirement of Title VII.

Effect of Decision

The Ninth Circuit previously ruled that harassing conduct that relied on sexual epithets, offensive, and explicit references to women’s bodies and sexual conduct could constitute harassing conduct “because of sex” in violation of Title VII. Steiner v. Showboat Oper. Co., 25 F.3d 1459, 1463 (9th Cir. 1994). In Steiner, the Ninth Circuit held that a reasonable woman could find explicitly sex- or gender-specific conduct or speech offensive and hostile. EEOC/Christopher v. NEA extends Steiner and broadens the contours of conduct that potentially violates Title VII’s prohibition on sex discrimination. Rather than requiring plaintiffs to prove that a co-worker’s or employer’s conduct was “of a sexual nature,” a plaintiff can now present a triable issue of material fact by demonstrating that women subjectively experienced the effects of workplace conduct differently than did men.

Because the Court applied a subjective standard in determining that a hostile environment existed, the decision leaves employers with uncertainty regarding the standard to apply in determining whether conduct is sexually harassing. Employers in the Ninth Circuit (Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Oregon, Washington) now must be mindful that apparently “benign” workplace outbursts not dressed up in sexually-biased vocabulary may nevertheless constitute unlawful discrimination. Plaintiffs who do not fit the traditional mold of harassment victims may now have a legitimate course of action for abusive, “bullying” behavior even in the absence of evidence of discriminatory intent. At the very minimum, this decision should elicit employer reactions such as stronger workplace policies prohibiting angry or threatening outbursts and swifter responses to rude, overbearing, obnoxious, loud, vulgar, or unprofessional workplace conduct.

The Ninth Circuit’s decision, and in particular, its “differential effect” test, represents a significant expansion of Title VII protection. It remains to be seen whether, and the extent to which, other Circuits will adopt or affirmatively reject the “differential effect” test. We expect that this issue will play out in the federal courts over the next several years, and that it eventually may need to be resolved by the U.S. Supreme Court.


This alert was written by Laura Lawless of the Phoenix office. Please contact Ms. Lawless at 602-445-8544 or your Greenberg Traurig liaison if you have any questions regarding the subject matter of this Alert.

© 2005 Greenberg Traurig

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