Q: I was recently laid off. How can I tell if I am eligible for the COBRA premium reduction?
A. Federal law makes the COBRA premium reduction available for "assistance eligible individuals."
An Assistance Eligible Individual is a COBRA qualified beneficiary who meets the following requirements:
1. Has a qualifying event for continuation coverage under COBRA that is the employee’s involuntary termination during the period beginning September 1, 2008 and ending February 28, 2010 ; and,
2. Elects continuation coverage timely.
Note: Those who are eligible for other group health coverage (such as a spouse's plan) or Medicare are not eligible for the premium reduction.
Source: http://www.dol.gov/ebsa/faqs/faq-cobra-premiumreductionEE.html
Tuesday, February 23, 2010
Saturday, February 20, 2010
When Profanity at Work Becomes Sexual Harassment
"Bitch" is a Four-Letter Word. A federal court has ruled that when a co-worker calls a female employee a “bitch,” "whore" or "cunt," it is gender-derogatory. Sounds obvious, but some other courts have found that there was no federal sexual harassment violation if the workplace was also permeated with gender neutral profanity. This is an interesting case coming out of the Eleventh Circuit Court of Appeals, Reeves v. C.H. Robinson Worldwide, Inc., D. C. Docket No. 06-00358-CV-2-IPJ (Jan. 20, 2010).
Warning: Do not read this posting if you are sensitive to profane language.
The court deciding this case recited the profane language that allegedly permeated this workplace exactly as it was spoken in order to present and properly examine the social context in which it arose.
The court explained that it does not repeat this vulgar language lightly, but only because its full consideration is essential to measure whether these words and this conduct could be read as having created an environment that a reasonable person would find hostile or abusive.
The Court's Recitation of the Facts as Reported by the Plaintiff
According to the court, the essential facts in this unedifying record are these. From July 2001 to March 2004, Ingrid Reeves worked as a transportation sales representative in the Birmingham, Alabama, branch of the shipping company C.H. Robinson.
She was responsible for sales and operations management for freight shipping. Among other duties, Reeves telephoned companies, set up sales appointments, and managed shipping freight from beginning to end. Her job was phone-intensive, requiring her to speak daily with carriers, truck drivers, customers, and dispatchers.
Reeves was the only woman working on the sales floor, an open area structured into a “pod” of cubicles, with six male co-workers. The only other female employee in the Birmingham branch worked in the same building, but in an area separate from Reeves’s “pod.”
Because there were no large barriers between the cubicles, Reeves could often hear the language of her male co-workers as they spoke over the phone or with each other. Reeves could also hear the central office radio that sat on a bookshelf near the “pod.”
Reeves had previously worked on a container ship and in the Merchant Marines, and was no stranger to the coarse language endemic to the transportation industry. In fact, Reeves herself used generic swear words, such as “shit” or “damn,” to express her frustration or anger.
Swearing Worse than Sailors
Nonetheless, she testified, there was language that her co-workers used at C.H. Robinson that was unusually offensive, even compared to the curse words she heard in the Merchant Marines. Much of this language, while incessant, vulgar, and generally offensive, was not gender-specific.
Throughout her tenure at C.H. Robinson, Reeves frequently heard generally indiscriminate vulgar language and discussions of sexual topics. Her co-workers, she claimed, regularly used curse words such as “fuck,” “fucker,” and “asshole.” They used the intensely offensive epithet “Jesus fucking Christ,” and the terms “fucking asshole,” “fucking jerk,” and “fucking idiot.” They also discussed sexual topics.
Women targeted for harassment
Reeves, however, also identified a substantial corpus of gender-derogatory language addressed specifically to women as a group in the workplace.
Her co- workers used such language to refer to or to insult individual females with whom they spoke on the phone or who worked in a separate area of the branch. Although not speaking to Reeves specifically, Reeves said that her male co-workers referred to individuals in the workplace as “bitch,” “fucking bitch,” “fucking whore,” “crack whore,” and “cunt.”
Reeves’s co-worker Scott Gagliardi frequently shouted the epithets “fucking bitch” or “fucking whore” after hanging up his phone. He also called one woman a “cunt.” Indeed, Reeves’s supervisor, branch manager David Mitchell, often referred to his female colleagues by the term “bitch.” Among other examples offered, he ordered Reeves to speak with “that stupid bitch on line 4,” and described a former female colleague, Jackie Burt, as a “lazy, good-for-nothing bitch.” Gagliardi, in turn, concluded a joke with the punch-line “fuck your sister, and your mother is a whore.”
Crude radio shows and computer screen savers
Nearly every day, Reeves’s co-workers tuned the office radio to a crude morning show. Reeves claimed that this program featured, among other things, regular discussions of women’s anatomy, a graphic discussion of how women’s nipples harden in the cold, and conversations about the size of women’s breasts. It also once advertised a “perverse” bikini contest.
On one occasion, Reeves’s co- worker Darryl Harris displayed a pornographic image of a fully naked woman with her legs spread, exposing her vagina, on his computer screen. Her co-workers also regularly sang songs about gender-derogatory topics.
Reeves’s co-workers singled out Casey Snider, the only other female employee in the Birmingham branch, for gender-specific ridicule.
In Reeves’s earshot, albeit out of Snider’s presence, branch manager Mitchell insulted Snider, saying “[s]he may be a bitch, but she can read.”
Discussing women's body parts
Gagliardi also referred to Snider as a “bitch” after she had left the room to use the bathroom. Reeves’s co-workers openly discussed Snider’s buttocks. Mitchell commented that “[s]he’s got a big one,” and Gagliardi likewise said that “[s]he’s got a big ass.”
According to Reeves, this offensive conduct occurred “on a daily basis.” She testified that “if you were to pull out a calendar right now and I were to look at, you know, summer of 2001 to spring of ‘04, I could point at every day of the year that some of this behavior went on. It went on every day.”
She indicated that “this type of phrase, ‘You fucking whore,’ was commonplace.”
Objections to co-workers prove futile
Reeves testified that she objected frequently to the crude language, conduct, and radio station to her co-workers. Much of the time, she identified only a generally vulgar and offensive working environment. On occasion, however, she complained about gender-specific offensive behavior, too.
Thus, for example, when she heard offensive topics on the radio, Reeves would change the radio station, usually to the “classic rock station,” sometimes “twice in one day.” Reeves said that when her co-workers used generally offensive terms, she told them that their language was offensive, first orally and then by email.
Reeves’s co-workers’ offensive behavior allegedly persisted unabated. She testified: “It was pretty obvious to me by this time that complaining to co-workers was not bringing about any results. . . . [N]othing would change.”
Indeed, on one occasion, apparently aware that their conduct offended her, Reeves’s co-worker Gagliardi shouted to her, “Ingrid, better wear your earplugs tomorrow,” so that a co-worker could behave “any way he liked” on his last day of work.
At least once, Reeves complained directly to a co-worker about his gender- specific offensive behavior. Reeves described confronting Darryl Harris when he displayed an explicit image of a naked woman exposing her vagina on his computer screen.
Reeves testified that she saw the picture as she walked by Harris’s desk from the copy machine.
Reeves recalled her reaction: “I was really offended by that. I was really upset. And it was very humiliating to me. And I just remember like my hands were like shaking. And . . . I knew I needed to say something to him because I felt that if I didn’t say something to him, then he would assume that it’s okay.”
Reeves said that she turned to Darryl and told him that she “saw that image [he] had on [his] computer. It really is offensive. It ma[de] [her] really uncomfortable.” Harris apologized.
Managers ignore complaints
Because her complaints to her co-workers proved futile, Reeves complained to her branch manager and supervisor, David Mitchell. Reeves explained, “[i]t was pretty obvious to me by this time that complaining to co-workers was not bringing about any results. So by about this time, my focus was on upper management.” She thought that complaining to her branch manager was “reasonable because according to that sexual harassment sheet [of C.H. Robinson’s policy], it said this is who you’re supposed to talk to.”
Reeves recalled complaining to David Mitchell on at least five separate occasions. Again, Reeves complained about both non-gender-specific, but generally vulgar behavior, and gender-specific conduct, too.
On July 5, 2001, Reeves’s third day in the office, she first complained about Mitchell’s use of a vulgar reference to a woman. Mitchell had been speaking with a Japanese customer on the telephone. Reeves recalled listening to Mitchell’s frustration rising. He placed the call on hold, looked directly at Reeves, and told her to “talk to that stupid bitch on line 4.”
After Reeves spoke with the customer, she asked to speak with Mitchell in his office. In this one-on-one meeting, she explained that the language he had used made her “very uncomfortable.” He apologized, but offered that “this is just the way I am, and you will just have to learn to ignore it.”
In a later gender-derogatory incident, after Mitchell and Gagliardi commented on Snider’s buttocks, Reeves exclaimed, “I can’t believe you just said that.”
On February 1, 2002, Reeves complained about both gender-derogatory and indiscriminately sexual topics on the radio. After Reeves had brought her own radio to work to “drown out” the
offensive radio station and her co-workers’ language, her supervisor, Mitchell, emailed Reeves to ask her to stop playing her radio.
Reeves responded to Mitchell, in writing, to complain that, among other things, the radio station regularly broadcasted shows on topics such as the size of women’s breasts and “elderly people having sex.” She also told Mitchell that her co-workers discussed generally offensive subjects such as “naked women at a hotel.”
Although Mitchell promised that the office could switch to playing less offensive programming, two months later, when Reeves tried once again to turn down the offensive radio station, Mitchell asked her to “turn it back up a notch” so that he could listen.
Reeves formally complained about her co-workers’ offensive language in two separate work evaluations. Mitchell admitted that, although he had promised to “pay closer attention” to the language in the office, it “did not stop.”
Manager laughed and failed to report to corporate
He conceded that he never reported her complaints about the offensive language in the office to the corporate office, although it had been his responsibility to do so.
Mitchell testified that, as a manager, he had “special responsibilities” to “report any infractions or violations of [the sexual harassment policy] to [the] human resources department.” Indeed, he acknowledged that as a manager/supervisor, he was “responsible for establishing and maintaining a climate in the workplace that allows all employees to do their job effectively.”
Reeves testified that the offensive language and conduct continued unabated. Mitchell “laughed at” the offensive language, which Reeves claimed “just encouraged it.”
When complaints to Mitchell went unaddressed, Reeves contacted two C.H. Robinson executives, Director of Branch Operations Molly DuBois and Vice President Timothy Manning, to set up a meeting during the course of their June 2002 visit to evaluate the Birmingham branch.
Reeves explained it this way: “I had complained to my branch manager. I was fed up. Nothing was changing. So at that point, what was reasonable was to go above him, which I did.” Prior to the executives’ visit, Reeves spoke with Director DuBois over the telephone and complained generally to her about the “sexually offensive language and conversation in the office,” and the offensive radio talk show.
Although Vice President Manning had promised to meet with Reeves during his visit to Birmingham, he never met with her “one on one.” Reeves testified that she was “very disappointed” in the executives’ visit, because “they never, ever brought [the topic of the offensive conduct] up again with [her], and nothing ever changed. Everything in the office continued day after day after day.”
Intolerable conditions
Reeves resigned from her position at C.H. Robinson on March 24, 2004. On February 23, 2006, she filed a complaint against C.H. Robinson in the United States District Court for the Northern District of Alabama, alleging that she had been subjected to a hostile work environment in violation of Title VII.
First Court Dismisses the Case
The first court to hear the case dismissed it, holding that because the derogatory language in the office was not directed at her in particular and because the language was used and the radio program was played in the presence of all employees, “both men and women were afforded like treatment,” and Reeves was not “intentionally singled out for adverse treatment because of her sex.”
The Appeals Court Reinstates the Case
The Court of Appeals began by reiterating several core principles of employment discrimination law:
1. To prove a hostile work environment under federal law, a plaintiff must show that her employer discriminated because of her membership in a protected group, and that the offensive conduct was either severe or pervasive enough to alter the terms or conditions of employment;
2. Title VII is not a civility code, and not all profane or sexual language or conduct will constitute discrimination in the terms and conditions of employment
3. Workplace conduct cannot be viewed in isolation, but rather is to be viewed cumulatively, and in its social context; and
4. A plaintiff can prove a hostile work environment by showing severe or pervasive discrimination directed against her protected group, even if she herself is not individually singled out in the offensive conduct.
Issue on Appeal
At issue on appeal was whether the conduct alleged to have pervaded C.H. Robinson created a hostile work environment that exposed Reeves to disadvantageous terms or conditions of employment to which members of the other sex were not exposed (disparate treatment).
Proving Hostile Work Environment
The court instructed that to prove a hostile work environment, the plaintiff must show:
(1) that he or she belongs to a protected group;
(2) that the employee has been subject to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature;
(3) that the harassment must have been based on the sex of the employee;
(4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and
(5) a basis for holding the employer liable.
It also instructed that “workplace conduct is not measured in isolation.” Rather, the evidence of harassment is considered both cumulatively and in the totality of the circumstances.
Either severity or pervasiveness is sufficient to establish a violation of Title VII. In evaluating allegedly discriminatory conduct, the court considers its frequency, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance.
The objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering all the circumstances, according to the court.
Is the Profanity Severe or Pervasive?
The court indicated that “Title VII does not prohibit profanity alone, however profane. It does not prohibit harassment alone, however severe and pervasive. Instead, Title VII prohibits discrimination, including harassment that discriminates based on a protected category such as sex.”
Further, a member of a protected group cannot be forced to endure pervasive, derogatory conduct and references that are gender-specific in the workplace, just because the workplace may be otherwise rife with generally indiscriminate vulgar conduct.
Title VII does not offer boorish employers a free pass to discriminate against their employees specifically on account of gender just because they have tolerated pervasive but indiscriminate profanity as well.
Gender Slurs v. General Profanity
When a co-worker calls a female employee a “bitch,” the word is gender-derogatory, according to the court. The court further observed that the terms “bitch” and “slut” are “more degrading to women than to men.”
The court cited the original definition of the term “bitch,” which is “the female of the dog.” Webster’s Third New International Dictionary 222 (2002).
The term’s secondary meanings are likewise gender-specific: “a lewd or immoral woman” or “a malicious, spiteful, and domineering woman.”
Calling a female colleague a “bitch” is firmly rooted in gender. It is humiliating and degrading based on sex, according to the court.
Thus, the court stated it was proceeding with “[c]ommon sense, and an appropriate sensitivity to social context,” to distinguish between general office vulgarity and the “conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive.”
"You Are a Bitch Too" Not Required to State a Claim
A final principle that guided the court in its decision is 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.
It is enough to hear co-workers on a daily basis refer to female colleagues as “bitches,” “whores” and “cunts,” to understand that they view women negatively, and in a humiliating or degrading way. The harasser need not close the circle with reference to the plaintiff specifically: “and you are a ‘bitch,’ too.”
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, according to the court.
Ignoring Complaints Leads to Liability
The court also ruled that a jury could infer the requisite intent to discriminate when that employee complained to her employer about the humiliating and degrading nature of the commentary about women as a group and the conduct persisted unabated.
A jury could find discrimination
According to the court, this evidence, measured against the aforementioned principles, is sufficient to afford the inference that the offending conduct was based on the sex of the employee.
A jury reasonably could find on this record that a meaningful portion of the allegedly offensive conduct in the office contributed to conditions that were humiliating and degrading to women on account of their gender, and therefore may have created a discriminatorily abusive working environment.
The terms “whore,” “bitch,” and “cunt,” the vulgar discussions of women’s breasts, nipples, and buttocks, and the pornographic image of a woman in the office were each targeted at Reeves’s gender.
Like “bitch,” “whore” is traditionally used to refer only to women. The dictionary defines “whore” in terms of gender as “a woman who practices unlawful sexual commerce.”
A reasonable juror could find that this gender-derogatory language and conduct exposed Reeves to “disadvantageous terms or conditions of employment.”
The court did not accord too much weight to the morning radio show. Like so much of the workplace conduct, the morning radio show, which Reeves compared to a Howard Stern show, also aired general, indiscriminate vulgarity and profanity.
Nevertheless, the court found that Reeves’s account of the contents of the show may be relevant in some ways: Reeves also claims to have repeatedly heard gender-specific, derogatory comments about women’s anatomy; the commentary may have been subjectively or objectively offensive; and the branch manager’s and co-workers’ refusal to respond to her repeated complaints may yield an inference about their intent to discriminate.
The court added that, while the F.M. broadcast station that featured the morning show is subject to F.C.C. controls for obscene language,the show’s commentary need not have been obscene to be considered sexual harassment.
Context important
The social context at C.H. Robinson detailed by Reeves allows for the inference to be drawn that the abuse did not amount to simple teasing, offhand comments, or isolated incidents, but rather constituted repeated and intentional discrimination directed at women as a group, if not at Reeves specifically, according to the court.
The court also stated that it was not fatal to her claim that Reeves’s co-workers never directly called her a “bitch,” a “fucking whore,” or a “cunt.” Reeves claims that the offensive conduct occurred “every single day,” and that the manager “accepted and tolerated that same behavior” over her repeated complaints.
If C.H. Robinson tolerated this environment, it may be found to have adopted “the offending conduct and its results,” just as if the employer affirmatively authorized it, according to the court.
Employer's Arguments Failed
C.H. Robinson objected, claiming that there is no proof of gender animus because Reeves’s co-workers began to use gender-specific epithets before Ingrid Reeves arrived at the workplace.
Thus, C.H. Robinson argues that Reeves’s presence was irrelevant to the insults and, therefore, the conduct did not occur on account of her sex.
According to the court, this argument is inconsistent with the central premise of Title VII: workers are to be protected from discrimination on account of gender in the workplace.
considered as part of the Title VII calculus.
Humiliating Working Conditions
The court reasoned that Congress made a clear choice in enacting Title VII of the Civil Rights Act of 1964 “‘to strike at the entire spectrum of disparate treatment of men and women’ in employment.” The critical issue 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.
Here, Reeves claims that her conditions of employment were humiliating and degrading in a way that the conditions of her male co-workers’ employment were not. It is no answer to say that the workplace may have been vulgar and sexually degrading before Reeves arrived. Once Ingrid Reeves entered her workplace, the discriminatory conduct became actionable under the law. Congress has determined that Reeves had a right not to suffer conditions in the workplace that were disparately humiliating, abusive, or degrading.
A question of intent
The court noted that at the end of the day, this is a question of intent, which, because intent may be difficult to discern, often requires recourse to circumstantial evidence.
The court was satisfied on this record that a jury could infer the necessary intent, and the jury should decide whether the law was violated.
"Bitch" is a Gender-Specific Slur
Finally, the court noted that C.H. Robinson suggests that Reeves’s co-workers used the terms “bitch” and “whore” to refer to both men and women and that, therefore, these terms cannot themselves be gender-specific.
First, as for the term “bitch,” there may be a dispute of material fact about this matter.
While Mitchell specifically testified that he referred to men in the office by the term “bitch,” Reeves claimed never to have heard any male employee refer to another male as a “bitch.”
But even accepting that Reeves’s co-workers sometimes used the terms “bitch” and “whore” to refer to men, this usage may not make the epithets any the less offensive to women on account of gender.
It is undeniable that the terms “bitch” and “whore” have gender-specific meanings. Calling a man a “bitch” 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.
More than a rough environment
In short, if Reeves’s account is to be believed, C.H. Robinson’s workplace was more than a rough environment -- indiscriminately vulgar, profane, and sexual. Instead, a jury reasonably could find that it was a workplace that exposed Reeves to disadvantageous terms or conditions of employment to which members of the other sex were not exposed.
Title VII was plainly designed to protect members of a protected group from adverse conditions of employment like those Reeves alleges were endemic to C.H. Robinson.
Case goes to trial
Accordingly, the court sent the case to a jury trial. It remains to be seen how the jury will rule.
How would you rule if you believed all of these allegations?
Warning: Do not read this posting if you are sensitive to profane language.
The court deciding this case recited the profane language that allegedly permeated this workplace exactly as it was spoken in order to present and properly examine the social context in which it arose.
The court explained that it does not repeat this vulgar language lightly, but only because its full consideration is essential to measure whether these words and this conduct could be read as having created an environment that a reasonable person would find hostile or abusive.
The Court's Recitation of the Facts as Reported by the Plaintiff
According to the court, the essential facts in this unedifying record are these. From July 2001 to March 2004, Ingrid Reeves worked as a transportation sales representative in the Birmingham, Alabama, branch of the shipping company C.H. Robinson.
She was responsible for sales and operations management for freight shipping. Among other duties, Reeves telephoned companies, set up sales appointments, and managed shipping freight from beginning to end. Her job was phone-intensive, requiring her to speak daily with carriers, truck drivers, customers, and dispatchers.
Reeves was the only woman working on the sales floor, an open area structured into a “pod” of cubicles, with six male co-workers. The only other female employee in the Birmingham branch worked in the same building, but in an area separate from Reeves’s “pod.”
Because there were no large barriers between the cubicles, Reeves could often hear the language of her male co-workers as they spoke over the phone or with each other. Reeves could also hear the central office radio that sat on a bookshelf near the “pod.”
Reeves had previously worked on a container ship and in the Merchant Marines, and was no stranger to the coarse language endemic to the transportation industry. In fact, Reeves herself used generic swear words, such as “shit” or “damn,” to express her frustration or anger.
Swearing Worse than Sailors
Nonetheless, she testified, there was language that her co-workers used at C.H. Robinson that was unusually offensive, even compared to the curse words she heard in the Merchant Marines. Much of this language, while incessant, vulgar, and generally offensive, was not gender-specific.
Throughout her tenure at C.H. Robinson, Reeves frequently heard generally indiscriminate vulgar language and discussions of sexual topics. Her co-workers, she claimed, regularly used curse words such as “fuck,” “fucker,” and “asshole.” They used the intensely offensive epithet “Jesus fucking Christ,” and the terms “fucking asshole,” “fucking jerk,” and “fucking idiot.” They also discussed sexual topics.
Women targeted for harassment
Reeves, however, also identified a substantial corpus of gender-derogatory language addressed specifically to women as a group in the workplace.
Her co- workers used such language to refer to or to insult individual females with whom they spoke on the phone or who worked in a separate area of the branch. Although not speaking to Reeves specifically, Reeves said that her male co-workers referred to individuals in the workplace as “bitch,” “fucking bitch,” “fucking whore,” “crack whore,” and “cunt.”
Reeves’s co-worker Scott Gagliardi frequently shouted the epithets “fucking bitch” or “fucking whore” after hanging up his phone. He also called one woman a “cunt.” Indeed, Reeves’s supervisor, branch manager David Mitchell, often referred to his female colleagues by the term “bitch.” Among other examples offered, he ordered Reeves to speak with “that stupid bitch on line 4,” and described a former female colleague, Jackie Burt, as a “lazy, good-for-nothing bitch.” Gagliardi, in turn, concluded a joke with the punch-line “fuck your sister, and your mother is a whore.”
Crude radio shows and computer screen savers
Nearly every day, Reeves’s co-workers tuned the office radio to a crude morning show. Reeves claimed that this program featured, among other things, regular discussions of women’s anatomy, a graphic discussion of how women’s nipples harden in the cold, and conversations about the size of women’s breasts. It also once advertised a “perverse” bikini contest.
On one occasion, Reeves’s co- worker Darryl Harris displayed a pornographic image of a fully naked woman with her legs spread, exposing her vagina, on his computer screen. Her co-workers also regularly sang songs about gender-derogatory topics.
Reeves’s co-workers singled out Casey Snider, the only other female employee in the Birmingham branch, for gender-specific ridicule.
In Reeves’s earshot, albeit out of Snider’s presence, branch manager Mitchell insulted Snider, saying “[s]he may be a bitch, but she can read.”
Discussing women's body parts
Gagliardi also referred to Snider as a “bitch” after she had left the room to use the bathroom. Reeves’s co-workers openly discussed Snider’s buttocks. Mitchell commented that “[s]he’s got a big one,” and Gagliardi likewise said that “[s]he’s got a big ass.”
According to Reeves, this offensive conduct occurred “on a daily basis.” She testified that “if you were to pull out a calendar right now and I were to look at, you know, summer of 2001 to spring of ‘04, I could point at every day of the year that some of this behavior went on. It went on every day.”
She indicated that “this type of phrase, ‘You fucking whore,’ was commonplace.”
Objections to co-workers prove futile
Reeves testified that she objected frequently to the crude language, conduct, and radio station to her co-workers. Much of the time, she identified only a generally vulgar and offensive working environment. On occasion, however, she complained about gender-specific offensive behavior, too.
Thus, for example, when she heard offensive topics on the radio, Reeves would change the radio station, usually to the “classic rock station,” sometimes “twice in one day.” Reeves said that when her co-workers used generally offensive terms, she told them that their language was offensive, first orally and then by email.
Reeves’s co-workers’ offensive behavior allegedly persisted unabated. She testified: “It was pretty obvious to me by this time that complaining to co-workers was not bringing about any results. . . . [N]othing would change.”
Indeed, on one occasion, apparently aware that their conduct offended her, Reeves’s co-worker Gagliardi shouted to her, “Ingrid, better wear your earplugs tomorrow,” so that a co-worker could behave “any way he liked” on his last day of work.
At least once, Reeves complained directly to a co-worker about his gender- specific offensive behavior. Reeves described confronting Darryl Harris when he displayed an explicit image of a naked woman exposing her vagina on his computer screen.
Reeves testified that she saw the picture as she walked by Harris’s desk from the copy machine.
Reeves recalled her reaction: “I was really offended by that. I was really upset. And it was very humiliating to me. And I just remember like my hands were like shaking. And . . . I knew I needed to say something to him because I felt that if I didn’t say something to him, then he would assume that it’s okay.”
Reeves said that she turned to Darryl and told him that she “saw that image [he] had on [his] computer. It really is offensive. It ma[de] [her] really uncomfortable.” Harris apologized.
Managers ignore complaints
Because her complaints to her co-workers proved futile, Reeves complained to her branch manager and supervisor, David Mitchell. Reeves explained, “[i]t was pretty obvious to me by this time that complaining to co-workers was not bringing about any results. So by about this time, my focus was on upper management.” She thought that complaining to her branch manager was “reasonable because according to that sexual harassment sheet [of C.H. Robinson’s policy], it said this is who you’re supposed to talk to.”
Reeves recalled complaining to David Mitchell on at least five separate occasions. Again, Reeves complained about both non-gender-specific, but generally vulgar behavior, and gender-specific conduct, too.
On July 5, 2001, Reeves’s third day in the office, she first complained about Mitchell’s use of a vulgar reference to a woman. Mitchell had been speaking with a Japanese customer on the telephone. Reeves recalled listening to Mitchell’s frustration rising. He placed the call on hold, looked directly at Reeves, and told her to “talk to that stupid bitch on line 4.”
After Reeves spoke with the customer, she asked to speak with Mitchell in his office. In this one-on-one meeting, she explained that the language he had used made her “very uncomfortable.” He apologized, but offered that “this is just the way I am, and you will just have to learn to ignore it.”
In a later gender-derogatory incident, after Mitchell and Gagliardi commented on Snider’s buttocks, Reeves exclaimed, “I can’t believe you just said that.”
On February 1, 2002, Reeves complained about both gender-derogatory and indiscriminately sexual topics on the radio. After Reeves had brought her own radio to work to “drown out” the
offensive radio station and her co-workers’ language, her supervisor, Mitchell, emailed Reeves to ask her to stop playing her radio.
Reeves responded to Mitchell, in writing, to complain that, among other things, the radio station regularly broadcasted shows on topics such as the size of women’s breasts and “elderly people having sex.” She also told Mitchell that her co-workers discussed generally offensive subjects such as “naked women at a hotel.”
Although Mitchell promised that the office could switch to playing less offensive programming, two months later, when Reeves tried once again to turn down the offensive radio station, Mitchell asked her to “turn it back up a notch” so that he could listen.
Reeves formally complained about her co-workers’ offensive language in two separate work evaluations. Mitchell admitted that, although he had promised to “pay closer attention” to the language in the office, it “did not stop.”
Manager laughed and failed to report to corporate
He conceded that he never reported her complaints about the offensive language in the office to the corporate office, although it had been his responsibility to do so.
Mitchell testified that, as a manager, he had “special responsibilities” to “report any infractions or violations of [the sexual harassment policy] to [the] human resources department.” Indeed, he acknowledged that as a manager/supervisor, he was “responsible for establishing and maintaining a climate in the workplace that allows all employees to do their job effectively.”
Reeves testified that the offensive language and conduct continued unabated. Mitchell “laughed at” the offensive language, which Reeves claimed “just encouraged it.”
When complaints to Mitchell went unaddressed, Reeves contacted two C.H. Robinson executives, Director of Branch Operations Molly DuBois and Vice President Timothy Manning, to set up a meeting during the course of their June 2002 visit to evaluate the Birmingham branch.
Reeves explained it this way: “I had complained to my branch manager. I was fed up. Nothing was changing. So at that point, what was reasonable was to go above him, which I did.” Prior to the executives’ visit, Reeves spoke with Director DuBois over the telephone and complained generally to her about the “sexually offensive language and conversation in the office,” and the offensive radio talk show.
Although Vice President Manning had promised to meet with Reeves during his visit to Birmingham, he never met with her “one on one.” Reeves testified that she was “very disappointed” in the executives’ visit, because “they never, ever brought [the topic of the offensive conduct] up again with [her], and nothing ever changed. Everything in the office continued day after day after day.”
Intolerable conditions
Reeves resigned from her position at C.H. Robinson on March 24, 2004. On February 23, 2006, she filed a complaint against C.H. Robinson in the United States District Court for the Northern District of Alabama, alleging that she had been subjected to a hostile work environment in violation of Title VII.
First Court Dismisses the Case
The first court to hear the case dismissed it, holding that because the derogatory language in the office was not directed at her in particular and because the language was used and the radio program was played in the presence of all employees, “both men and women were afforded like treatment,” and Reeves was not “intentionally singled out for adverse treatment because of her sex.”
The Appeals Court Reinstates the Case
The Court of Appeals began by reiterating several core principles of employment discrimination law:
1. To prove a hostile work environment under federal law, a plaintiff must show that her employer discriminated because of her membership in a protected group, and that the offensive conduct was either severe or pervasive enough to alter the terms or conditions of employment;
2. Title VII is not a civility code, and not all profane or sexual language or conduct will constitute discrimination in the terms and conditions of employment
3. Workplace conduct cannot be viewed in isolation, but rather is to be viewed cumulatively, and in its social context; and
4. A plaintiff can prove a hostile work environment by showing severe or pervasive discrimination directed against her protected group, even if she herself is not individually singled out in the offensive conduct.
Issue on Appeal
At issue on appeal was whether the conduct alleged to have pervaded C.H. Robinson created a hostile work environment that exposed Reeves to disadvantageous terms or conditions of employment to which members of the other sex were not exposed (disparate treatment).
Proving Hostile Work Environment
The court instructed that to prove a hostile work environment, the plaintiff must show:
(1) that he or she belongs to a protected group;
(2) that the employee has been subject to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature;
(3) that the harassment must have been based on the sex of the employee;
(4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and
(5) a basis for holding the employer liable.
It also instructed that “workplace conduct is not measured in isolation.” Rather, the evidence of harassment is considered both cumulatively and in the totality of the circumstances.
Either severity or pervasiveness is sufficient to establish a violation of Title VII. In evaluating allegedly discriminatory conduct, the court considers its frequency, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance.
The objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering all the circumstances, according to the court.
Is the Profanity Severe or Pervasive?
The court indicated that “Title VII does not prohibit profanity alone, however profane. It does not prohibit harassment alone, however severe and pervasive. Instead, Title VII prohibits discrimination, including harassment that discriminates based on a protected category such as sex.”
Further, a member of a protected group cannot be forced to endure pervasive, derogatory conduct and references that are gender-specific in the workplace, just because the workplace may be otherwise rife with generally indiscriminate vulgar conduct.
Title VII does not offer boorish employers a free pass to discriminate against their employees specifically on account of gender just because they have tolerated pervasive but indiscriminate profanity as well.
Gender Slurs v. General Profanity
When a co-worker calls a female employee a “bitch,” the word is gender-derogatory, according to the court. The court further observed that the terms “bitch” and “slut” are “more degrading to women than to men.”
The court cited the original definition of the term “bitch,” which is “the female of the dog.” Webster’s Third New International Dictionary 222 (2002).
The term’s secondary meanings are likewise gender-specific: “a lewd or immoral woman” or “a malicious, spiteful, and domineering woman.”
Calling a female colleague a “bitch” is firmly rooted in gender. It is humiliating and degrading based on sex, according to the court.
Thus, the court stated it was proceeding with “[c]ommon sense, and an appropriate sensitivity to social context,” to distinguish between general office vulgarity and the “conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive.”
"You Are a Bitch Too" Not Required to State a Claim
A final principle that guided the court in its decision is 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.
It is enough to hear co-workers on a daily basis refer to female colleagues as “bitches,” “whores” and “cunts,” to understand that they view women negatively, and in a humiliating or degrading way. The harasser need not close the circle with reference to the plaintiff specifically: “and you are a ‘bitch,’ too.”
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, according to the court.
Ignoring Complaints Leads to Liability
The court also ruled that a jury could infer the requisite intent to discriminate when that employee complained to her employer about the humiliating and degrading nature of the commentary about women as a group and the conduct persisted unabated.
A jury could find discrimination
According to the court, this evidence, measured against the aforementioned principles, is sufficient to afford the inference that the offending conduct was based on the sex of the employee.
A jury reasonably could find on this record that a meaningful portion of the allegedly offensive conduct in the office contributed to conditions that were humiliating and degrading to women on account of their gender, and therefore may have created a discriminatorily abusive working environment.
The terms “whore,” “bitch,” and “cunt,” the vulgar discussions of women’s breasts, nipples, and buttocks, and the pornographic image of a woman in the office were each targeted at Reeves’s gender.
Like “bitch,” “whore” is traditionally used to refer only to women. The dictionary defines “whore” in terms of gender as “a woman who practices unlawful sexual commerce.”
A reasonable juror could find that this gender-derogatory language and conduct exposed Reeves to “disadvantageous terms or conditions of employment.”
The court did not accord too much weight to the morning radio show. Like so much of the workplace conduct, the morning radio show, which Reeves compared to a Howard Stern show, also aired general, indiscriminate vulgarity and profanity.
Nevertheless, the court found that Reeves’s account of the contents of the show may be relevant in some ways: Reeves also claims to have repeatedly heard gender-specific, derogatory comments about women’s anatomy; the commentary may have been subjectively or objectively offensive; and the branch manager’s and co-workers’ refusal to respond to her repeated complaints may yield an inference about their intent to discriminate.
The court added that, while the F.M. broadcast station that featured the morning show is subject to F.C.C. controls for obscene language,the show’s commentary need not have been obscene to be considered sexual harassment.
Context important
The social context at C.H. Robinson detailed by Reeves allows for the inference to be drawn that the abuse did not amount to simple teasing, offhand comments, or isolated incidents, but rather constituted repeated and intentional discrimination directed at women as a group, if not at Reeves specifically, according to the court.
The court also stated that it was not fatal to her claim that Reeves’s co-workers never directly called her a “bitch,” a “fucking whore,” or a “cunt.” Reeves claims that the offensive conduct occurred “every single day,” and that the manager “accepted and tolerated that same behavior” over her repeated complaints.
If C.H. Robinson tolerated this environment, it may be found to have adopted “the offending conduct and its results,” just as if the employer affirmatively authorized it, according to the court.
Employer's Arguments Failed
C.H. Robinson objected, claiming that there is no proof of gender animus because Reeves’s co-workers began to use gender-specific epithets before Ingrid Reeves arrived at the workplace.
Thus, C.H. Robinson argues that Reeves’s presence was irrelevant to the insults and, therefore, the conduct did not occur on account of her sex.
According to the court, this argument is inconsistent with the central premise of Title VII: workers are to be protected from discrimination on account of gender in the workplace.
considered as part of the Title VII calculus.
Humiliating Working Conditions
The court reasoned that Congress made a clear choice in enacting Title VII of the Civil Rights Act of 1964 “‘to strike at the entire spectrum of disparate treatment of men and women’ in employment.” The critical issue 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.
Here, Reeves claims that her conditions of employment were humiliating and degrading in a way that the conditions of her male co-workers’ employment were not. It is no answer to say that the workplace may have been vulgar and sexually degrading before Reeves arrived. Once Ingrid Reeves entered her workplace, the discriminatory conduct became actionable under the law. Congress has determined that Reeves had a right not to suffer conditions in the workplace that were disparately humiliating, abusive, or degrading.
A question of intent
The court noted that at the end of the day, this is a question of intent, which, because intent may be difficult to discern, often requires recourse to circumstantial evidence.
The court was satisfied on this record that a jury could infer the necessary intent, and the jury should decide whether the law was violated.
"Bitch" is a Gender-Specific Slur
Finally, the court noted that C.H. Robinson suggests that Reeves’s co-workers used the terms “bitch” and “whore” to refer to both men and women and that, therefore, these terms cannot themselves be gender-specific.
First, as for the term “bitch,” there may be a dispute of material fact about this matter.
While Mitchell specifically testified that he referred to men in the office by the term “bitch,” Reeves claimed never to have heard any male employee refer to another male as a “bitch.”
But even accepting that Reeves’s co-workers sometimes used the terms “bitch” and “whore” to refer to men, this usage may not make the epithets any the less offensive to women on account of gender.
It is undeniable that the terms “bitch” and “whore” have gender-specific meanings. Calling a man a “bitch” 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.
More than a rough environment
In short, if Reeves’s account is to be believed, C.H. Robinson’s workplace was more than a rough environment -- indiscriminately vulgar, profane, and sexual. Instead, a jury reasonably could find that it was a workplace that exposed Reeves to disadvantageous terms or conditions of employment to which members of the other sex were not exposed.
Title VII was plainly designed to protect members of a protected group from adverse conditions of employment like those Reeves alleges were endemic to C.H. Robinson.
Case goes to trial
Accordingly, the court sent the case to a jury trial. It remains to be seen how the jury will rule.
How would you rule if you believed all of these allegations?
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