11th Circuit OKs Suit Based on Sexual Language in Office

Alyson M. Palmer

Daily Report

In a rare win for a plaintiff alleging employment discrimination, the 11th U.S. Circuit Court of Appeals has held that a woman can bring a harassment claim for language not referring specifically to her.

Plaintiff Ingrid Reeves contends that she was subjected to sexually offensive language -- words like "bitch" and "whore" -- on a daily basis in her job as a transportation sales representative. Reeves sued C.H. Robinson Worldwide, a Minnesota-based logistics company, which employed Reeves in its Birmingham, Ala., branch office from 2001 to 2004.

While some of the comments of which Reeves complains were said directly to her -- as when she was asked to "talk to that stupid bitch on line four" -- nothing in the 11th Circuit decision suggests that Reeves heard her co-workers make derogatory comments about her specifically. Most of the language at issue was simply in nearby conversations 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. Also, Reeves says on one occasion she walked past the workstation of a co-worker and saw an image of a naked woman on a computer. The co-worker apologized when confronted by Reeves, according to the company's brief.

All but one of Reeves' co-workers were men, and the only other woman worked in a different area of the office.

U.S. District Judge Inge P. Johnson of the Northern District of Alabama granted summary judgment to C.H. Robinson. But on April 28, the 11th Circuit panel overturned that decision, suggesting it was breaking new ground for the circuit in the process.

"The specific question that faces us here is whether harassment in the form of offensive language can be 'based on' the plaintiff's membership in a protected group even when the plaintiff was not the target of the language and other employees were equally exposed to the language," Judge Charles R. Wilson wrote for the panel, which included Chief Judge J.L. Edmondson and U.S. District Judge Cecilia M. Altonaga, visiting from the Southern District of Florida.

Interestingly, Wilson cited a major sexual harassment decision from March 2007 in which the 11th Circuit upheld summary judgment for the defendant, despite allegations the plaintiff's manager in that case had once greeted her, "Hey, Babe, blow me." In its opinion in that case, Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, Judge Edward E. Carnes wrote that an "equal opportunity curser" doesn't violate the federal gender discrimination statute.

But, Wilson noted, Carnes also acknowledged in his 2007 opinion that "sex specific" profanity, such as the words "bitch" and "slut," is more degrading to women than men and thus could be considered "on the sexual harassment scales." And the 11th Circuit already had held that use of racial epithets could support a hostile work environment claim under the federal discrimination statute, even when they weren't used directly in reference to the plaintiff, Wilson explained.

"Though we have never explicitly held that such 'sex specific' language satisfies the 'based on' element in a sexual harassment hostile work environment case even when the language does not target the plaintiff," Wilson continued, "we do so today in light of our race-discrimination cases."

Patricia G. Griffith of Atlanta's Ford & Harrison, who was not involved in the case but represents employers, said the decision is important both because of what it says about sex-specific language not directed at a plaintiff personally and because it indicates that the pervasiveness, or frequency, of harassment, as opposed to the severity, can carry a claim.

"It will open up a can of worms in some regards," said Griffith, "because I think before employers could say if people are just out there, and they talk their own talk, and they do their own thing, we don't have to monitor that as closely as if it's directed to an employee." Some employers already have adopted policies about language, but others have not, she said.

"For the more sophisticated employers, it's not going to make a difference," she said, "but for your more blue-collar employers, it may require more of a cleanup."

Birmingham attorney Christopher A. Mixon, who argued for the company on appeal, didn't return calls seeking comment. But on appeal, Mixon and his colleagues at Ogletree, Deakins, Nash, Smoak & Stewart acknowledged that Reeves received good evaluations until she resigned in March 2004 -- arguing that her excellent reviews supported their position that the behavior of Reeves' co-workers wasn't bad enough to hurt her performance.

They argued there was no evidence that the office behavior was "motivated" by hostility toward women in the workplace. Instead, they argued in a brief, virtually all of the language Reeves complains about was "uttered in frustration or anger, rather than in a sexual context."

The company's lawyers referred to evidence that the foul language offended some of the office's men, not just Reeves, a graduate of the United States Merchant Marine Academy who had worked aboard container ships. The lawyers also stressed that Reeves' branch manager -- albeit the same employee who made the comment about the woman on line four -- told co-workers in their performance evaluations to watch their language.

Minneapolis lawyer Douglas L. Micko, who argued the successful appeal for Reeves, said the opinion appears on its face to be a "little more revolutionary than it really is," noting the 11th Circuit's prior consideration of the issue in race discrimination cases. "There's no case that I know of, and certainly in the race context, that as long as you put a white person in the room you can say whatever you want," he said.

Micko is leaving the firm of Sprenger & Lang, and he's not taking the case with him. Firm managing partner Steven Sprenger, of Washington, said the 11th Circuit has a reputation for being hostile to employment discrimination claims. "I don't know how well-deserved it is," he said, "but that's the reputation." His firm is having some success in the southeast, however.

Specifically, the firm has another sexual harassment case pending against C.H. Robinson in the Northern District of Georgia. That case involves four plaintiffs from two different branches in the Atlanta area. U.S. Magistrate Judge Gerrilyn G. Brill has recommended that the sexual harassment claims survive the company's motions for summary judgment, and the company has filed objections.

Sprenger & Lang also represented the plaintiffs in a class action filed against C.H. Robinson in Minnesota federal court in 2002. Judge Joan N. Ericksen declined to certify the sexual harassment claims as a class in that case, saying that the plaintiffs lawyers hadn't provided enough evidence that the company had a policy and practice of tolerating and promoting harassment. But the judge certified classes on other gender discrimination claims based on compensation and promotion; Ericksen signed off on a consent decree and $15 million settlement of those discrimination claims in 2006.

The 11th Circuit case is Reeves v. C.H. Robinson Worldwide, No. 07-10270.