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With more and more employers highly sensitized to recognize and respond to classic forms of sexual harassment, and with all but the most Neanderthal of employers responsive to clear incidents of racial or religious discrimination, the often less obvious, but sometimes highly pernicious, general “workplace jerk” frequently goes unnoticed. Yet the workplace jerk may pose more of a threat to the employer than the instantly recognizable lecherous sexual harasser or the obvious racist. Even if the workplace jerk does not fire anyone or take any other adverse employment action, and even if the workplace jerk makes no overt sexual, racial, or other discriminatory comments, his or her actions may give rise to “hostile work environment” liability if an employee can credibly claim that the jerk’s abusive behavior was motivated by some protected characteristic of the employee. The law governing what is termed “hostile work environment” harassment has become so expansive that the safest course for employers is to maintain a vigilant stance against the workplace jerk. While the true equal opportunity jerk usually is breaking no law, proving that the offending employee doled out abuse without discrimination may be a difficult and awkward task for an employer. Employers who fail to discipline aggressively and weed out (or at least train and reform) the boor, the bully, the power-monger, and even the person who simply lacks basic interpersonal skills may find themselves vulnerable to expensive and difficult employment lawsuits as disgruntled employees ascribe some unlawful motivation to the abusive conduct. And, of course, eliminating such negative forces from the workplace also yields numerous other benefits in the way of productivity and morale. It is well known that Title VII of the Civil Rights Act of 1964 — the source of harassment law — makes no mention of sexual or any other form of harassment. Rather, the law provides that “[i]t shall be an unlawful employment practice for an employer � to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex or national origin.” 42U.S.C. � 2000e-2(a)(1) (1994). In 1986, however, the U.S. Supreme Court made clear that sexual harassment that is “sufficiently severe or pervasive ‘to alter the conditions of [the victim's] employment and create an abusive working environment’” violates Title VII. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986) (brackets in original) ( quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir 1982)). Two companion decisions issued by the Supreme Court in 1998 further spotlighted the issue of employers’ response to traditional forms of sexual harassment. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998). These cases established that employers that can show that they have “exercised reasonable care to prevent and correct promptly any sexually harassing behavior” may be rewarded with an affirmative defense that may cut off liability or damages. The Court’s rulings in these cases have helped to galvanize what already was a cottage industry of lawyers and human resources consultants performing sexual harassment training and revising sexual harassment policies. And there is no doubt that employers are well advised to undertake such efforts. But with all the attention focused on sexual harassment, other forms of potential harassment liability have received far less attention. While some employers now recognize that the prohibition on sexual harassment extends to harassment based on race, color, religion, national origin, and even to age and disability (which are covered by statutes other than Title VII), few employers apprehend that, as the Sixth Circuit recently explained, “[a]ny unequal treatment of an employee that would not occur but for the employee’s gender [or other protected characteristic] may, if sufficiently severe or pervasive … , constitute a hostile environment in violation of Title VII.” Williams v. General Motors Corp ., 187 F.3d 553, 565 (6th Cir. 1999). That is to say, discriminatory harassment need not be explicitly linked to sex, gender, race, or other protected characteristics; rather, it can be simply bad conduct that is alleged to be motivated by some protected characteristic. While the plaintiff may face problems of proof on the issue of whether the harassing conduct was motivated by a discriminatory animus or whether it was sufficiently severe or pervasive, a lawsuit can, of course, exact an enormous price before those issues are decided; and if the issues survive summary judgment and are to be decided by a jury, the “equal opportunity harassment” defense may be particularly unpalatable. In the United States District Court for the District of Oregon, a district court judge ruled in an unpublished 1997 decision that two female plaintiffs stated a viable hostile work environment claim under Title VII based on their claims that their male manager repeatedly yelled at them, waved his arms in a threatening manner, and pounded his fists on the table in apparent agitation over their failure to fill out purchase orders correctly. Vantulden v. Tactica Corp., (No. 96-1647-MA). The court in that case ruled that to assert viable claims of “gender harassment” the plaintiffs had to show “(1) that they were subjected to abusive physical or verbal conduct because of their gender; (2) that other similarly situated male employees were not so treated; (3) that the conduct was unwelcome; and (4) that the conduct was sufficiently severe or pervasive so as to alter the conditions of employment.” The result in that case was a lengthy jury trial in which the employer, a struggling new high-technology company, ultimately prevailed on the harassment claims but incurred an enormous cost and distraction that ultimately contributed to the company’s demise. Some courts have recognized that a “gender harassment” claim that involves no overtly sexual harassment calls for a “more fact intensive analysis � to determine if the conduct was motivated by gender.” Spain v. Gallegos, 26 F.3d 439, 447 (3rd Cir 1994). The requirement of demonstrating discriminatory motive cause many of the meritless cases ultimately flounder. See, e.g. Rand v. Windall, 1996 WL 183043 (N.D. Cal. 1996) (dismissing plaintiff’s hostile work environment complaint which alleged “little more than [a description of] the stresses of being in a managerial position and her general perception that it was because of sex.) However, this search for “gender animus” or other impermissible animus on the part of the alleged harasser is fraught with possibilities for abuse. For example, in the unpublished case from the district court noted above, the plaintiffs sought discovery concerning whether the alleged harasser had ever attended any “adult entertainment” shows while on business trips and whether he had ever hit a woman, on the theory that such evidence could show a general animus against women. While the court reined in these efforts somewhat and sought to keep the inquiries limited to the workplace, the possibilities for this kind of intrusive inquiry into legally impermissible motivations has troubling ramifications. Another challenge facing employers under this increasingly expansive application of harassment law is recognizing when the company may be “on notice” that discriminatory harassment is occurring and that the company should be taking action. Two 9th Circuit decisions issued this summer — one involving obviously objectionable sexual conduct, and the other involving more routine unpleasant interactions — help illustrate the point that it is sometimes the less obvious form of discriminatory harassment that goes unattended and therefore leads to liability. In Brooks v. City of San Mateo, 2000 WL 1568680 (9th Cir. 2000), the plaintiff, a 911 operator, alleged that her co-worker forcibly touched her stomach and subsequently placed his hand inside her shirt and fondled her breasts while she was handling a call. Following the plaintiff’s complaint to her employer, the employer swiftly responded with an investigation and termination of the employee (who later served jail time for the sexual assault). Notwithstanding the clearly reprehensible sexual workplace conduct, the 9th Circuit upheld the trial court’s grant of summary judgment for the employer on the plaintiff’s sexual harassment claim, finding that the conduct was not sufficiently severe or pervasive to alter the conditions of employment. In Fielder v. UAL Corp., No. 98-35511, 2000 WL 914140 (9th Cir. July 10, 2000), a decision handed down the very next month, the 9th Circuit determined that the plaintiff could assert a viable hostile work environment claim based, in substantial part, on her claims that her co-workers were unfriendly, ostracized her, and failed to provide normal assistance because she had previously complained of sexual harassment. In examining the series of incidents that formed the basis for the plaintiff’s claim, the court noted that “[m]ost instances of hostile environments are not capable of facile identification. ‘[I]nstead, the day-to-day harassment [is] particularly significant, both as a legal and practical matter, in its cumulative effect.’ ” Id. at *7 (citation omitted; second brackets in original). Taken together, these two recent cases indicate that employers are well served by responding as seriously to generalized complaints of unfair or abusive treatment as they do to the obvious sexual harassment scenario. Indeed, the differing result in the Fielderand Brookscases is almost entirely a function of the employers’ differing responses. In Brooks, the employer recognized the obvious sexually inappropriate conduct, vigorously responded — and was freed of any liability. The employer in Fieldereither failed to recognize the less obvious discriminatory conduct or failed to respond to the conduct, thereby paving the way to further legal exposure. In an important 1998 Supreme Court decision on sexual harassment, Justice Scalia, writing for a unanimous court, addressed the concern that Title VII was being transformed “into a general civility code for the American workplace.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). Justice Scalia reemphasized that the critical inquiry in a sexual harassment case is whether the conduct occurred “because of sex.” He emphasized as well that the objective severity of the conduct is measured in part by reference to the context in which the conduct occurred and concluded, somewhat optimistically: “[C]ommon sense, and appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing � and conduct which [a] reasonable person in plaintiff’s position would find severely hostile or abusive.” 118S. Ct. at 1000. However, in order to avoid finding themselves in the unenviable position of having juries or judges in hostile work environment cases apply their own versions of “common sense” to what may, at the time, have seemed like routine outbursts or displays of excess, employers must be assertive in the first instance in dealing with abusive behavior of all kinds from employees, especially from employees in supervisory positions. The alternative may be for the employer to face the kind of school-yard justice meted out by jurors who may be all too happy to give the workplace jerk his or her comeuppance. Paul Buchanan is a partner at Stoel Rivesand Chair of the firm’s Labor & Employment Group. He is a member of the Washington, Oregon and California bars and is based in Stoel Rives’ Portland office.

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