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You don’t have to be a groper, lecher or explicit misogynist to get sued for sex-based harassment, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled Friday. The opinion, in a case originating at an Alaska teachers union, said that Thomas Harvey, a manager accused of “shouting, ‘screaming,’ foul language, invading employees’ personal space … and [making] threatening gestures” may be sued for gender-based discrimination under Title VII of the Civil Rights Act of 1964, even though his acts were not overtly motivated by the victims’ gender. “We hold that offensive conduct that is not facially sex-specific nonetheless may violate Title VII if there is sufficient circumstantial evidence of qualitative and quantitative differences in the harassment suffered by female and male employees,” wrote Senior Judge Alfred Goodwin in a unanimous decision. Senior Judge Melvin Brunetti and Judge William Fletcher concurred. In the case, male and female employees agreed that women bore the brunt of Harvey’s outbursts. Employment lawyers said the opinion offers encouragement to plaintiff lawyers whose clients don’t fit the traditional mold of harassment victims. “I think it’s a good decision for plaintiffs,” said Jack Lee, a partner at Minami, Lew & Tamaki who specializes in gender discrimination suits. The opinion stands to strengthen plaintiffs’ arguments that adverse effects of an employer’s behavior are more important than intent. “Before, it was pretty clear that you didn’t have to be lusting after” an employee to be held liable for discrimination, Lee said. “But here, it’s bullying that might create an adverse impact.” Particularly significant, Lee said, was Goodwin’s statement that “this case illustrates an alternative motivational theory in which an abusive bully takes advantage of a traditionally female workplace because he is more comfortable when bullying women than when bullying men.” Such alternative theories, Lee said, would be useful in cases like one he handled last year for an Air Force surgeon. The surgeon said she had been treated differently than her male counterparts, even though she was not called names or explicitly abused for being a woman. While a jury eventually awarded his client $500,000, Lee said the case was a challenge because doctors tend not to act in stereotypically discriminatory ways. Friday’s opinion, he said, could help overcome that hurdle. “Highly educated people don’t have that kind of roughhouse environment, but there can be sex harassment nonetheless,” said Lee.Shelley Gregory, a staff attorney at the Legal Aid Society-Employment Law Center in San Francisco, agreed. “It’s not always the case that we have a smoking gun,” she said. “What I think the court is doing is recognizing the evolving nature of harassment in the workplace.”Gilmore Diekmann Jr., a partner at Seyfarth Shaw who defends employers in harassment suits, was less enthused. He said the opinion is unclear on the most alarming point it raises: that subjective effects of an employer’s behavior may be used to determine whether there was discrimination. “It’s unique and probably wrong” if the court meant that people’s different reactions to the same behavior could form the basis for a discrimination claim, he said. “It seems to be some effort by a panel to possibly inject a new type of liability,” he added. The opinion, Christopher v. National Education Association, 05 C.D.O.S. 7999, sends the case of plaintiff Carol Christopher back to the U.S. District Court for the District of Alaska, which had dismissed the suit.

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