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Sexual Remarks Not Directed At Plaintiff, And Radio Show, Constitute Sexual Harassment

Published by on April 30, 2008

In Reeves v. C.H. Robinson Worldwide, Inc., the U.S. Court of Appeals for the Eleventh Circuit overturned the entry of summary judgment in a sexual harassment case, finding that alleged sexual remarks do not have to be directed at the plaintiff to establish a cause of action.  The Court focused on the “based on” and “severe […]

In Reeves v. C.H. Robinson Worldwide, Inc., the U.S. Court of Appeals for the Eleventh Circuit overturned the entry of summary judgment in a sexual harassment case, finding that alleged sexual remarks do not have to be directed at the plaintiff to establish a cause of action.  The Court focused on the “based on” and “severe or pervasive” elements of a hostile work environment claim in overturning the award of summary judgment.  A sexually offensive radio show played in the office every morning also played a role in the Court’s decision.

Plaintiff Reeves was the only women in her work “pod.”  There was sexually charged language in the pod on a daily basis.  For example, one co-worker employees constantly used sexually offensive language such as “f–ing bitch” and “f—ing whore” and other phrases, jokes, songs, comments and remarks.  Reeves asked him to stop because it was distracting but the he did not change his behavior.  Another co-worker had similar behaviors, speaking graphically about sexual exploits.  The day before this co-worker’s last day, Reeves was told to bring earplugs to work the next day because he could act however he wanted on his last day. 

A branch manager, Reeve’s direct supervisor, also made comments that offended Reeves.  Reeves complained to the branch manager about the language and use of such language in the office in general.  In addition, a sexually explicit radio show also played in the office every day.  In discovery, Reeves cited particular material aired by the program that offended her.  When Reeves would try to change the station, other employees would turn it back to the offensive program.

To satisfy the “based on” element in hostile work environment cases, a plaintiff must show that similarly situated persons of the opposite sex were treated differently and better.  The question in this case was whether harassment in the form of offensive language can be “based on” the plaintiff’s membership in a protected group where the plaintiff was not the target of the language and other employees were equally exposed to it.  The court looked at precedent for hostile work environment claims based on race to determine that although both men and women were exposed to the language, it was more degrading to women.  Thus, although the sexually explicit language was not directed at Plaintiff it was sufficiently offensive to Reeves to satisfy the “based on” element for summary judgment.

The “severe or pervasive” element includes a subjective and objective component.  Reeves subjectively perceived the harassment to be severe or pervasive, so the Court looked at the objective severity of the harassment from the perspective of a reasonable person.  The court looked at (1) the frequency, (2) the severity, (3) whether the conduct was physically threatening or humiliating or a mere offensive utterance, and (4) whether the conduct unreasonably interfered with the employee’s job performance. 

Looking at the totality of the circumstances, the Eleventh Circuit found that the alleged conduct was objectively pervasive.  Sex specific language was used on a daily basis for almost three years.  Although the court found that the severity factor weighed against Reeves because the conduct was never directed at her, the sexual references were found to be humiliating to a reasonable person in Reeve’s position as the sole woman in the work pod.  Further, the Court found that the continuous sexual utterances unreasonably interfered with Reeve’s job performance.  As such, the Court determined that a reasonable jury could find that the harassment Reeves faced was sufficiently pervasive to alter the terms of her employment and remanded the case for trial.

Contributed by Michael K. Wilson

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