Thursday, October 06, 2005

Shifting of sexual harassment liability in 9th Circuit

The victims: Three female employees of the National Education Association’s Alaska affiliate, all of whom alleged that they had been subjected to a hostile working environment.

Precedent/"Old law": Direct evidence is required to show that harassing conduct towards these female employees was “because of sex” (i.e., harassment would not have occurred if they were male).

What happened: The women were subject to “frequent, profane, and often public” tirades by their supervisor Harvey, who frequently yelled at them for no reason and occasionally made intimidating physical gestures.

While Harvey did publicly criticize male workers within the office, he was much less aggressive about it than he was with the women. He also showed a greater willingness to resolve matters more amicably with the men. Unlike the male employees, the female employees testified that they cried, felt panicked and threatened, avoided contact with Harvey, called the police, and ultimately resigned their employment because of the alleged conduct.

Other witnesses, including male employees, confirmed those accounts.

What the court held: Overturning the district court’s ruling in favor of NEA-Alaska which held that the alleged harassment was not “because...of sex” within the meaning of Title VII of the Civil Rights Act of 1964, the Ninth Circuit held that there was sufficient evidence that Harvey treated the men and women in the office differently by creating “general fear” in the women.

The Court held that the motive in which the abusive supervisor took advantange of a female workplace because he could bully the women easier than the men was no "less because of sex than a motive involving sexual frustration, desire, or simply a motive to exclude or expel women from the workplace.” The Court mentioned that in such situations, it did not necessarily matter that some men were also harassed.

Case: Equal Employment Opportunity Commission v. National Education Association, Alaska, 04-35029.

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.

No comments: