When a Supervisor Bullies Only Women, Can the Conduct Count as Illegal Sex-Based Harassment?
The U.S. Court of Appeals for the Ninth Circuit Says Yes

Thomas Harvey shouted at his subordinate female employees, and he did so frequently, profanely, and often in public. The shouting had no sexual content, and did not involve derogatory language about women. But, the record suggests, only women were subjected to it, at least in its most extreme form.

In a decision earlier this month in the case, EEOC v. National Education Association (NEA), the U.S. Court of Appeals for the Ninth Circuit held that the plaintiffs could proceed to trial on their sexual harassment claim. That decision is garnering headlines because neither sexual behavior, nor language with sex-specific content, was alleged.

To those familiar with the law, though, this is not news. Indeed, the fact that the media is taking note of the case, illustrates the wide gap between popular perceptions of sexual harassment law, and the actual law of sexual harassment.

In this case, that law was simple, and well-established: The main federal anti-employment-discrimination statute, Title VII bans sex discrimination in the workplace. And that ban has long been understood to encompass sex-based harassment - hostile or abusive behavior targeted at employees of one sex.

Thus, the Ninth Circuit was entirely right to allow this case to go forward.

The Boss' Treatment of Women at the NEA-Alaska

The alleged harasser, Thomas Harvey, was the Executive Director of NEA-Alaska, a labor union representing teachers and other public school employees. Plaintiffs Carol Christopher, Julie Bhend, and Carmela Chamara held various positions in the union subordinate to Harvey.

According to testimony of plaintiffs and several other witnesses, Harvey routinely yelled at the plaintiffs with "little or no provocation," Worse, his shouting rants were often accompanied by aggressive physical gestures like lunging at, pumping fists at, invading the personal space of, and grabbing plaintiffs while barking commands or complaints at them.

Plaintiff Christopher described an incident, for example, where Harvey screamed profanely at her for not reading her work e-mail while away (on an approved day off) visiting her dying sister.

Each plaintiff testified that Harvey's conduct rendered the work environment physically and verbally threatening - so much so that one of them did not seek pay for overtime she had worked because she "was too scared of Mr. Harvey to turn [the records of her overtime hours] in."

Did These Plaintiffs Experience Sexual Harassment?

The plaintiffs sued their employer, claiming that Harvey's behavior created a hostile work environment. But the district court granted summary judgment to the employer, concluding that the requirement under Title VII that harassment be "because of sex" had not been met.

After all, the court pointed out, no one alleged that Harvey's behavior was lewd, sexual (either explicitly or through undertones), or that the content of his shouting was gender-specific. Nor was there any evidence that Harvey harbored any animus towards women - either generally or just at work - or had some specific motive to make their lives miserable.

It is well-established that Title VII does not protect against generally brutish or oppressive behavior at work (something lots of employees might experience), but only those behaviors that occur because of the victim's sex.

The appellate court, however, found that the "because of sex" requirement was plainly fulfilled by plaintiffs' alleged experiences. Whether or not Harvey derided them because they were women, he - according to the bulk of evidence in the record - only directed his brutish behavior at women, and never at men.

And that, the Ninth Circuit, held, is sufficient to qualify Harvey's behavior as sex-based, and therefore illegal, harassment. Women were treated differently - and worse - than men, because they were women, and that, the Court held, was sufficient.

When is Harassment "Because of Sex"?

It was in the later 1970s that courts first began to recognize that sexual harassment constituted a form of illegal sex discrimination. At the time, courts tended not to focus on the "because of sex" requirement found in Title VII. They simply assumed -- in many cases, accurately -- that male-on-female sexual advances in the workplace were motivated by the man's sexual desire - and, therefore, would not likely have occurred but for the victim's sex.

That assumption caused problems later, as courts began to confront allegations of same-sex harassment, and allegations of harassment that, while directed at women, was not sexual in nature. The usual assumption, that sex harassment always stemmed from men's heterosexual desire, did not work in such cases, and courts and scholars were thus forced to reconsider how the "because of sex" requirement might otherwise be proven.

The answers were, by and large, unsatisfactory. Some courts refused to find illegal harassment without male-on-female sexual behavior. Others looked only for proof of sexual desire, whether the harassment was opposite-sex or same-sex - choosing to ignore even dramatically different gender differences in employment experiences as long as desire was not at issue.

Still other courts - more reasonably -- acknowledged that harassment could occur without sexual desire or behavior. But, often, as law professor Vicki Schultz has pointed out, the courts that took this view would evaluate each individual incident separately, and find that none was sufficient to make the harassment actionable. (Harassment, under established Title VII jurisprudence, must either be severe or pervasive to be actionable.)

Oncale v. Sundowner Offshore Services: The Supreme Court Weighs In

Much of the confusion surrounding atypical claims of harassment was resolved by the Supreme Court's 1998 opinion in Oncale. There, the Court was reviewing a federal appellate opinion that had said same-sex harassment could never be actionable under Title VII. Rebuking such an unwarranted and harsh categorical rule, the Court set forth a variety of ways plaintiffs could prove that harassment occurred "because of sex," regardless of whether the conduct was sexual in nature.

According to the unanimous opinion, harassment may be "because of sex" if it is motivated by (opposite-sex or same-sex) sexual desire - motivation the court may infer from the nature of the conduct or find because of direct evidence of the harasser's sexual orientation.

But harassment may also, according to Oncale, be actionable if it is motivated by animus toward one sex or their presence in the workplace, or is simply directed at members of only one sex. Animus might be proven by harassment that uses sex-specific or derogatory terms (e.g., "women have no business being construction workers"), and differential targeting might be proven by direct comparative evidence about how the alleged harasser treats members of each sex in the workplace. (I have discussed the application of this ruling to cases of same-sex harassment in a previous column.)

All of these showings suffice because the guiding principle, which the Court borrowed from an earlier precedent, Harris v. Forklift Systems, is "whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed."

Was Harvey's Conduct "Because of Sex"? Oncale Establishes It Was

As the Ninth Circuit recognized, the allegations in Harvey fall squarely into one of the Oncale categories: direct comparative evidence about how the alleged harasser treats members of both sexes.

The allegations - supported by many of the uncontested pieces of evidence - state that Harvey bullied women almost exclusively. When he did mistreat men, it was less physically threatening, less humiliating, and less severe. This is the kind of comparative evidence Oncale suggested would suffice to prove sex-based harassment.

Under Title VII, What Matters Is Treatment of Employees, Not the Motive For It

Does it matter why Harvey singled out women for mistreatment? No.

Title VII never looks for specific intent to discriminate or cause harm. Suppose, for instance, a supervisor categorically refuses to hire women for a road crew job, regardless of their capacity, experience, or qualifications. That supervisor is just as guilty of discrimination whether he wants to protect women from an unsavory working environment, wants to exclude them because he feels them to be unqualified for manual labor, or even does not consciously feel any bias against women at all.

The point is that the supervisor's hiring practices are biased. Regardless of the supervisor's motive, the sex of the victim is the cause for the imposition of an adverse employment practice. Women are treated worse as a result of their gender: It's as simple as that.

In sexual harassment cases, the specific intent of the harasser is, similarly, not relevant to the viability of a claim. A man may truly believe he is flattering a woman when he makes a sexual advance, and, yet, if she can prove that a reasonable person would perceive the conduct as hostile, offensive, or abusive, she might prevail in a claim of hostile environment sexual harassment. (Social science research suggests that "boundary differentiation" problems - where men and women draw different lines between acceptable and unacceptable social-sexual conduct at work -- account for at least some incidents of sexual harassment.)

As the Ninth Circuit explained in this case, Title VII focuses on the effects of employment practices and harassing conduct rather than their purpose. Harvey's conduct had a sex-based effect. And that is true whether he treated women worse because he wanted to drive them from the workplace, or because he simply had a bad temper and took it out on those he thought least likely to fight back.

The Trial Court Must Now Look At Effects, Not Purposes

As a result of the Ninth Circuit's decision, the trial court is now directed to make a quantitative comparison of the number of female versus male targets of Harvey's behavior.

And because of the focus on effects, the question is not only whether Harvey behaved differently (and worse) toward women. It is also whether his behavior -- even if comparable on the surface - had a different effect on women.

There is evidence in the record, for example, that when men were shouted at, they were able to resume a normal working relationship with Harvey afterward. Women, on the other hand, testified that Harvey's abuse affected all their interactions with him and their comfort at work. The case was rightly sent back to trial to see whether, as the Ninth Circuit put it, "Harvey's behavior affected women more adversely than it affected men."

As in any harassment case, the plaintiffs must prove not only that the conduct occurred because of their sex, but also that it was sufficiently severe or pervasive to be actionable. That will be for the jury to decide, but the plaintiffs allege daily abuse, and, if proven, such a pattern would certainly suffice under existing caselaw to count as "pervasive."

A Straightforward Case Illuminates Misunderstanding of Sexual Harassment Law

As noted above, this case was straightforward and correctly decided.

Granted, the type of conduct at issue is a bit different than the way one usually pictures sexual or sex-based harassment. Typically, our culture - and media - tend to portray sex harassment in the way it was conceived when the law began to be developed, in the late '70s - as unwanted sexual advances or coerced sexual submission.

But it's worth noting that prohibitions on sex harassment are rooted not in anti-sex laws, but in anti-discrimination laws. The point of Title VII is workplace equality, not a workplace free of sexual advances.

No wonder, then, that the Supreme Court has squarely held that differential bullying on the basis of sex violates federal anti-discrimination law: Supervisory bullying that targets women means women have a worse experience at work than men do, because they are women. And that is just what the plaintiffs say happened here.

Had Harvey bullied his male and female employees equally - and caused them equally adverse effects - Title VII might not have been implicated. A boss's general workplace bullying does not violate federal law.

Perhaps, at least in extreme cases, federal law ought to be amended to reach such bullying: Researchers and the media have noted that such bullying is a growing phenomenon, and one should not have to suffer abuse, as the price of working. Yet, as it stands, Title VII provides no general protection against abuse at work. Instead, it focuses on protecting employees against group-based, discriminatory harms.

Laws making workplace bullying illegal - regardless of the victim's protected class status - have been introduced in a handful of states in the past few years, but none has yet been enacted into law. However, that does not mean that abusive bosses are immune. In what experts say is the first case of its type, a jury last spring held a heart surgeon liable for bullying an employee (screaming and lunging at him in a workplace confrontation) and awarded the victim more than $300,000 in damages for the incident.

Mean bosses beware: there might be consequences for your actions, particularly if you target your abuse to one group of employees.