Hostile Work Environments -- The Pushed Envelope

Ingrid Reeves was subject to a hostile work environment. As a transportation sales representative at C.H. Worldwide, Ms. Reeves heard her co-workers call women "cunts," "fucking whores," and "fucking bitches." None of this was directed at Reeves. This did not cause the 11th Circuit to pause because "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." Specifically, "[i]t 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 Court cites cases from the 4th, 2nd, and 7th Circuits to support its finding that the conduct need not be directed specifically at plaintiff, so long as it is directed at plaintiff's protected class. (A cleaner way to make this argument may be to state that the conduct is unwelcome because of the plaintiff's sex.)

The Court quickly disposed of the Employer's claim 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" because they are gender-specific and because "[c]alling a man a 'bitch' belittles him precisely because it belittles women."

As an initial matter, employers should control their workplace so this type of conduct does not occur. But, more importantly, Reeves reveals the importance of taking complaints seriously. Indeed, Reeves complained to her branch manager on at least five separate occasions, the Director of Branch Operations, and the Vice President. The branch manager was no help and, in fact, too called women "bitches." The other two promised one-on-one meetings but cancelled. In short, the employer knew, or had reason to know, and did nothing. This allowed Reeves to state a viable hostile work environment claim.

Message to employers: take complaints seriously and follow up to remedy the situation. Failing to do so is not only a bad business practice (as it allows hostile work environments to fester) but also exposes employers to liability.

Click here for a copy of the Court's opinion.

Termination and Employer Missteps

Brenna Lewis worked in a front desk position at Heartland Inns. In that capacity, Lewis received good performance reviews and at least one positive customer comment. Lewis was eventually promoted to the "A Shift," a premium shift from 7:00 am to 3:00 pm. Shortly after starting the A Shift, Barb Cullinan, Defendant's Director of Operations, saw Ms. Lewis and wasn't pleased. In fact, she called Lewis's manager and said Lewis was not a "good fit," that Lewis lacked the "Midwestern girl look," and that the front desk staff should be "pretty." Cullinan subsequently ordered a second interview of Lewis. Cullinan also installed video equipment to view interviewees. To her surprise, Lewis knew about Cullinan's comments and, at the interview, mentioned that she felt the new second interview requirement was illegal. In the interview, Lewis, in addition to questioning the legality of the second interview, made some suggestions to Cullinan regarding Defendant's business practices. Three days later, Lewis was fired.

On January 21, 2010, the Eighth Circuit Court of Appeals reversed the district court's grant of summary judgment to defendant on Lewis's retaliation and gender stereotyping claims. According to the Eighth Circuit, the district court improperly required Lewis to produce evidence that she was treated differently than similarly situated males in order to satisfy the fourth prong of the McDonnell Douglas test. Instead, Lewis was permitted to rely on evidence of pretext or evidence of discriminatory comments (both of which Lewis was able to establish.)

The Court also reaffirmed the validity of gender stereotype claims quoting Smith v. City of Salem, Ohio, "[a]fter Price Waterhouse, an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim's sex." The takes aim at gender stereotyping claims, while noting that Price Waterhouse was a mere plurality, "[a]pparently, the majority would hold that an employer violates Title VII if it declines to hire a female cheerleader because she is not pretty enough, or a male fashion model because he is not handsome enough, unless the employer proves the affirmative defense that physical appearance is a bona fide occupational qualification." As this demonstrates, the fight over gender stereotyping claims rages on.

The Court also reinstated Lewis's retaliation claim reiterating that "[i]n making out a prima facie retaliation claim, Lewis need not prove the merits of the underlying claim of sex discrimination. She can establish protected conduct 'as long as [she] had a reasonable, good faith belief that there were grounds for a claim of discrimination." According to the Court, Lewis's knowledge that she was possibly the only one subject to the second interview, that Cullinan had made sexually-charged comments, and her statement that such conduct was illegal meant she had engaged in "protected conduct, including opposition to an action prohibited by Title VII."

The facts of Lewis reveal two important missteps taken by the employer: it failed to follow its normal termination procedures and its reason for termination was based on interview at which only Lewis and Cullinan were present. To wit, when analyzing whether Lewis had established that Defendant's reason for terminating Lewis was pretextual, the Court noted that "Lewis and Cullinan, the only two individuals in the room, portray the encounter in starkly different terms. On summary judgment we must construe the conversation in the light most favorable to Lewis, however.

In short, don't engage in gender stereotyping. The words "he's not masculine enough" or "she's not feminine enough" should not be in employers' vocabularies. Additionally, don't base a termination on an interview at which only the employer and the employee are present. This is almost certain to generate a question of fact. Finally, follow procedures. If you don't, you are asking for unfavorable inferences.

Click here for a copy of the Court's opinion.