At Barkett's invitation, Micko described the atmosphere at C.H. Robinson's Birmingham office. He said Reeves' co-workers made comments about women's bodies, including the body of Reeves' lone female co-worker.
Carnes complained that Micko's brief lumped together offensive talk about sex with language that is derogatory to women, suggesting that including complaints about sexual banter hurts Reeves' case. "When you throw it in, it seems to dilute the rest of it," said Carnes.
"I disagree that you have to subtract it out," Micko replied, arguing that the banter in Reeves' workplace put women in sexually subservient and objectified roles.
Are you saying Reeves didn't complain about talk of men's genitalia? asked Pryor. When Micko conceded his client may have testified to that effect, Pryor pounced: "She did testify to that," he said.
Micko ceded some of his argument time to Jennifer S. Goldstein of the Equal Employment Opportunity Commission, which filed an amicus brief in support of Reeves. Barkett invited Goldstein to explain to her colleagues "who might not understand" why sex talk in the workplace could be derogatory to women.
"Here you're talking about pieces of women's bodies," responded Goldstein.
Pryor noted the court already has said the federal employment discrimination statute is not a civility code, but Goldstein responded that "the b-word" is a derogatory term for women, meant to suggest that women are not on equal footing.
David L. Warren Jr. of Ogletree, Deakins, Nash, Smoak & Stewart's Birmingham office stood up for C.H. Robinson. He argued that because Reeves has brought her case as a claim of disparate treatment, as opposed to a claim of disparate impact, she has to prove that the conduct of which she complains would not have occurred but for her presence.
Disparate treatment claims allege that women or minorities are treated differently than other employees, while disparate impact claims allege that a job requirement or condition that applies to all employees disadvantages women or minorities.
Judge Gerald B. Tjoflat told Warren that one of the problems that he had with the case was that there wasn't enough information in the record on the physical layout of the office, such as its size and configuration and the locations of key items such as the radio. "As far as I'm concerned they were all bunched together," he said.
Barkett asked Warren about a hypothetical where a woman's male co-workers brought a stripper into the office every day.
If there were no evidence that the hiring of the stripper was motivated by the plaintiff's presence, responded Warren, she could not bring a claim under 42 U.S.C. 2000e-2(a)(1), the subsection used by Reeves that provides for a disparate treatment theory.
Wilson and Barkett wanted to know whether the court could determine as a matter of law that certain words were equally offensive to men and thus didn't give rise to an employment discrimination claim. Can the court say "the word 'bitch' is OK?" asked Barkett.
No, responded Warren. But, he said, there is zero evidence that in Reeves' case any of her co-workers said "all women are bitches" or "all women should be home barefoot and pregnant."
But Barkett wondered about an alleged remark by Reeves' branch manager -- "what are Asian bitches good for?"
Reeves said that comment was racially discriminatory, said Warren, noting that Reeves is not Asian.
Barkett seemed unimpressed. So we can discriminate against blacks and Asians as long as they're not in the room? she asked incredulously.
Edmondson, who had joined Wilson's panel opinion favoring Reeves, asked Warren whether it's evidence of discriminatory intent if the alleged harassers continue using certain language after a minority complains that it is offensive to her.
"It's not," responded Warren, arguing that the federal employment discrimination law doesn't prohibit actions just because they offend members of a protected class.
Wilson pressed Warren further about gender-specific language: "What about the c-word?" he asked.
"You can't make it any more gender-specific than that," Marcus chimed in.
Warren responded that the word was used only once and there's no evidence its use was motivated by Reeves' presence. So men can just use that word in the workplace all day long without giving rise to an employment discrimination claim? asked Wilson.
Not under subsection (a)(1), responded Warren, allowing that there might be a claim under subsection (a)(2), which provides for a disparate impact theory.
The case is Reeves v. C.H. Robinson Worldwide, No. 07-10270.