Some of the judges deciding a woman's harassment claim against her employer for allowing lewd sex talk in the office resorted to code in Tuesday's oral argument, debating with lawyers whether "the b-word," "the c-word" and "the f-word" could amount to discrimination. But other judges did not mind being more explicit, and the full court argument at the 11th U.S. Circuit Court of Appeals was hardly dull.
At issue was whether the law allowed the woman, who was a transportation sales representative in Alabama, to bring her case even if the objectionable language wasn't necessarily directed at her but was about women in general.
The question led to some unusual comments for the courtroom.
When Judge Edward E. Carnes asked a lawyer about a hypothetical workplace where derogatory, sex-specific terms for men were used in equal measure with derogatory terms for women, Judge Rosemary Barkett raised a problem.
"I can't think of many words that are derogatory toward men," she said. Barkett suggested "bastard" and "prick," saying, "that's the only two I can come up with."
The case was brought by Ingrid Reeves, who worked aboard container ships before she went to work for the Minnesota-based logistics company C.H. Robinson Worldwide from 2001 to 2004. She contends that she was subjected to words such as "bitch" and "whore" on a daily basis in her job as a transportation sales representative at C.H. Robinson's Birmingham, Ala., branch office.
As recounted in a three-judge panel's decision that favored Reeves, there is no evidence that Reeves' co-workers, all but one of them men, called her those names. Instead, Reeves complains about the use of such language more generally in conversation with her, such as when she was asked to "talk to that stupid bitch on line four." Most of the language at issue was used in conversation she heard between co-workers or on the sometimes sexually charged local morning radio program favored by some of Reeves' colleagues.
The program occasionally included discussions of subjects like women's breast sizes and pornography. Reeves also complained that others regaled their co-workers with sexual jokes, talk of masturbation and their own sexual tales. She cited an instance in which she walked past the workstation of a co-worker and saw an image of a naked woman on his computer.
Reeves resigned from her position in March 2004 and sued the company.
U.S. District Judge Inge P. Johnson of the Northern District of Alabama granted summary judgment to C.H. Robinson on the ground that the alleged harassment was not "based on" Reeves' sex.
But an 11th Circuit panel of then-Chief Judge J.L. Edmondson, Judge Charles R. Wilson and visiting U.S. District Judge Cecilia M. Altonaga reversed last year. Wilson wrote that the circuit was explicitly holding for the first time that "sex specific" language satisfies the "based on" requirement for a sexual harassment hostile work environment claim even when the language does not "target" the plaintiff.
On C.H. Robinson's motion, the 11th Circuit agreed to a rare hearing before all 11 active judges on the court.
Judge William H. Pryor Jr. interrupted Reeves' lawyer, Douglas L. Micko of the Schaefer Law Firm in Minneapolis, as soon as Micko stepped to the podium on Tuesday morning. Pryor said that one of Reeves' primary complaints, according to her deposition, was about office use of what Pryor called "the f-word."
"How does that support a claim?" asked Pryor.
"If that's all we had," responded Micko, "we wouldn't be here today."
Pryor was unsatisfied, noting Reeves repeatedly said in her deposition that she was bothered by workplace talk about sexual acts. "Isn't this a case of indiscriminate vulgarity where women are not targeted?" asked Pryor.
No, responded Micko, noting the use of what he called "the b-word" in Reeves' workplace.
"Doesn't she also use the f-word as a preface to bitch and whore?" Judge Stanley Marcus asked helpfully.
"We're leaving out a few words here," added Wilson, reminding his colleagues that Reeves also had described the workplace use of what he called "the c-word."