Over the years, and through the course of many sexual harassment lawsuits, there are certain actions and certain words that are easily identifiable as illegal sexual harassment. For example, it is commonly known that a superior may be required to defend a sexual harassment charge if the superior requires an employee to perform sexual acts or touches an employee inappropriately.
While those types of sexual harassment cases are clear, the law is evolving to define sexual harassment in cases that may seem less clear cut. In January 2010, the 11th Circuit Court of Appeals issued a unanimous decision in favor of sexual harassment plaintiffs who claimed that the consistent use of profanity in the workplace constituted sexual harassment.
Court Rules that Profanity Can be Sexual Harassment in Some Cases
The Court’s decision in Reeves v. C.H. Robinson Worldwide found that words alone, without inappropriate touching, may be enough to constitute sexual harassment. The words need not be directed at one individual. In the Reeves case, the profanity used by co-workers referred to women as a group in a derogatory way by using profanity that referred to females as “whores” “cunts” and “bitches.”
Will Profanity always Lead to a Sexual Harassment Recovery?
The short answer is no, it will not. The occasional use of a bad word that is not made in reference to one gender is not going to allow an employee, or group of employees, to bring a successful sexual harassment claim. For example, if one employee typically mutters “son of a bitch” when he becomes frustrated then that is unlikely to become a sexual harassment case.
Sexual harassment cases that are brought because of workplace profanity must still meet the elements of other sexual harassment cases. Sexual harassment can occur in one of two ways. Sexual harassment may occur when there is a tangible employment action related to the harassment. For example, if an employee refuses to do sexual favors and is, therefore, fired from her job then that would be an actionable type of sexual harassment. Sexual harassment can also occur when the harassing behavior creates a hostile environment for an employee. This type of sexual harassment case is typically harder to prove than when a tangible employment action results from the harassment but it is equally as serious. In order to prove that a hostile environment exists, the plaintiff in a sexual harassment case must prove that:
· The conduct was unwelcome and offensive;
· The employer knew or should have known about the unwelcome or offensive conduct; and
· The employer failed to take actions to stop and rectify the hostile environment.
The plaintiff in the Reeves case was able to prove that the conduct of the employees at her job, and their consistent use of derogatory words about females, could have created a hostile work environment. The 11th Circuit recognized that words alone could create a hostile work environment and allow plaintiffs to recover for sexual harassment. The case has now been remanded to the trial court for a jury to determine if the actions in this case entitle the plaintiff to recover damages for sexual harassment.
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