When the federal appeals court in Atlanta sits as a full group in October, the judges may be subjected to some offensive language -- and may use some themselves.

The 11th U.S. Circuit Court of Appeals late last month agreed to rehear en banc a sexual harassment case decided more than a year ago by one of its panels. Observers can only guess why the court took so long to rule on an employer's en banc petition, but the length of time suggests the court may be struggling mightily with the issues in the case.

The April 2008 panel decision represented a rare win for an employment discrimination plaintiff at the 11th Circuit, regarded by some as more hostile to employment discrimination claims than most circuits. The issue is whether being subjected to sexually charged language at work can give a female employee a cause of action under federal discrimination law when the language isn't directed at the plaintiff specifically but permeates the atmosphere of the workplace.

Kelly Cahill Timmons, a law professor at Georgia State University, wrote a law review article on the topic early in her academic career. There she argued that, absent further social science research on its effects, courts should be cautious about equating sex talk in the workplace with other types of employment discrimination against women. Allowing lawsuits over sex talk in the workplace could reinforce the image that women are delicate and in need of protection, argued Timmons, and may focus courts and employers on sexual conduct rather than more insidious forms of gender-based hostility in the workplace.

"It's dangerous to say that all talk about sex is disproportionately harmful to women," she explained last week.

Timmons was supposed to be spending her time last week grading papers but was flush with excitement over the 11th Circuit's apparent willingness to tackle the nuances of employment law on which she had written. "Personally," said Timmons, "I couldn't see how it couldn't be interesting to everyone."

At issue in the case at the 11th Circuit are allegations of not only sexual jokes that Timmons said courts shouldn't assume are harmful to women, but also gender-based slurs that Timmons said should provide the basis for a discrimination claim.

Plaintiff Ingrid Reeves contends that she was subjected to words such as "bitch" and "whore" on a daily basis in her job as a transportation sales representative. As recounted in the 11th Circuit panel decision, there's no evidence that Reeves' co-workers called her names like that. Rather, 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.

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

Reeves sued C.H. Robinson Worldwide, a Minnesota-based logistics company, which employed Reeves in its Birmingham, Ala., branch office from 2001 to 2004.

The company's lawyers have argued in briefs that Reeves' excellent performance reviews show that the behavior of her co-workers wasn't bad enough to hurt her performance. They have said there's no evidence the office behavior was motivated by hostility to women in the workplace. Instead, they argued, virtually all of the language Reeves complains about was "uttered in frustration or anger, rather than in a sexual context."

U.S. District Judge Inge P. Johnson of the Northern District of Alabama granted summary judgment to C.H. Robinson in December 2006. But on April 28, 2008, 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 unanimous panel, which included then-Chief Judge J.L. Edmondson and U.S. District Judge Cecilia M. Altonaga, visiting from the Southern District of Florida.

The 11th Circuit already had held in 1982 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."

When the decision came out, Cumberland School of Law associate professor Marcia L. McCormick blogged about the ruling over at the Workplace Prof Blog. "This type of hostile environment case is often difficult to get past summary judgment because if both men and women are exposed to conduct equally, then it's hard to say that one sex is treated differently from the other," wrote McCormick, who soon will leave her post in Birmingham for a professorship at St. Louis University. "The Eleventh Circuit got it right when it looked not at whether the sexes were exposed equally but whether the environment would be perceived as a hostile one by one sex more than the other."

McCormick also mused that Edmondson's willingness to join the decision may be an example of strange bedfellows: saying Edmondson was widely regarded as very conservative, McCormick suggested "the views of more conservative justices about exposing women to this kind of coarse conduct might converge with the views of justices who look at the issue as one of discrimination."

Last week, she explained that the U.S. Supreme Court's first decision on sexual harassment, Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), emphasized the parallels between sexual and racial harassment in the workplace and acknowledged that where the workplace is so charged against a protected group of people, members of that group have a cause of action under federal discrimination laws. "This will bring the 11th Circuit more in line with [other] circuits and what the Supreme Court itself said in its first sexual harassment case," McCormick said of the panel decision in Reeves' case.

Timmons, the Georgia State professor, agreed that the panel's approach was consistent with that of other courts. But she called it merely a good start.

"I think the panel opinion was insufficiently precise," said Timmons.

She said when it comes to sexual harassment cases, most courts have not distinguished between disparate treatment claims, which allege that women or minorities are treated differently than other employees, and disparate impact claims, which allege that a job requirement or condition that applies to all employees disadvantages women or minorities. The distinction could matter because plaintiffs cannot get a jury trial or money damages on a claim of disparate impact, but only a judge's order that the employer do things differently in the future.

Most disparate impact cases have to do with the qualifications for a job, such as whether an employer has a good enough reason to require prospective employees to pass certain physical fitness standards. Timmons notes in her article that on rare occasions a plaintiff may successfully challenge a workplace condition on a disparate impact theory, such as in a 1987 6th Circuit case where a female construction worker complained that a requirement that workers use dirty portable toilets without running water or clean toilet paper presented a greater hardship for women than men.

Timmons said last week that derogatory words for women can be the basis for a disparate treatment claim, sometimes called an intentional discrimination claim. Reeves complained about a co-worker's use of what Timmons sometimes refers to as "the C-word," and Timmons said that word in particular is analogous to the worst racial slur. No studies are needed to show that using those words amounts to discrimination, she said. She said she hopes that in the midst of delving into this difficult issue the 11th Circuit doesn't retreat from its recognition that the use of certain words can support a hostile work environment claim.

But Timmons argued that claims over workplace talk about sex, as opposed to the use of slurs, should be handled differently, under a disparate impact theory. In an office where women dominated, she suggested, a man could be made uncomfortable by such talk as well. She said plaintiffs might be able to point to some research that says such talk is more harmful to women. "I think the theory should be available," said Timmons. "I'd be very interested to see what the court says about how you would prove that."

Some of the judges on the 11th Circuit may be on Timmons' wavelength. The court has told the lawyers in Reeves' case that it wants them to address not only whether Reeves should lose her case on the ground that any harassment she experienced wasn't "because of" her gender but also whether her claim should be evaluated as a claim of disparate treatment or a claim of disparate impact.

An 11th Circuit sexual harassment decision from March 2007, cited by Wilson in his opinion in Reeves' case, may give some hint as to how other judges view the issue. In that case, Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, a panel of 11th Circuit Judges Edward E. Carnes and Stanley Marcus and a district judge visiting from Florida upheld summary judgment for the defendant, despite allegations that the plaintiff's manager in that case had once greeted her, "Hey, Babe, blow me."

In its opinion in that case, Carnes acknowledged 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." But he brushed aside allegations about the manager's use of words such as "cocksucker" and "peckerwood," writing that an "equal opportunity curser" doesn't violate the federal gender discrimination statute. Sexual jokes also were at issue in that case, but Carnes didn't really say whether those would provide a basis for the plaintiff's claim because the judge concluded the plaintiff couldn't win her case because she hadn't complained about the workplace behavior soon enough.

Birmingham attorney Christopher A. Mixon argued C.H. Robinson's position before the panel, but he referred questions to his law partner Margaret H. "Meg" Campbell at Ogletree, Deakins, Nash, Smoak & Stewart's Atlanta office. Campbell, who filed the successful en banc petition, declined to comment on the matter.

Reeves is represented by Sprenger & Lang, which has handled several sexual harassment cases against C.H. Robinson around the country. Although the lawyer who argued the case for Reeves at the 11th Circuit, Minneapolis lawyer Douglas L. Micko, is no longer with the firm, the firm's Washington, D.C.-based managing partner, Steven M. Sprenger, said last week that he had spoken with Micko about reprising his role before the 11th Circuit.

Sprenger said the 2nd, 4th and 6th Circuits all have concluded in cases with similar circumstance that the plaintiff was discriminated against because of her gender, and he's not aware of other circuits going a different way. He called the disparate impact versus disparate treatment issue "more of an intellectual question," saying courts haven't discussed sexual harassment in those terms.

"It did take a long time," said Sprenger, "but we feel good about where we're going to end up."

Sprenger said he doesn't see how the court can rule against his client while keeping its precedent on racial slurs in the workplace. "The statute says the same thing for race and sex," said Sprenger. "If they want to rewrite the statute, I guess they should go ask Congress to do that."

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