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DECEMBER 2005
COURT DETERMINES USE OF PROFANITY CAN CREATE A HOSTILE WORK ENVIRONMENT
In another decision with far reaching implications for employers, the Ninth Circuit Court of Appeals (which
governs California ) determined that harassing conduct does not have to be sexual in nature to be illegal. It was
found that the severely offensive conduct, by a supervisor, such as shouting, using foul language, invading
employees' personal space, and making threatening gestures, may violate the law if it is directed more at one
group of employees more than at another.
This type of unprofessional conduct becomes illegal harassment when it creates a more hostile work
environment for one group of employees more than others and the conduct has substantial and material adverse
consequences against certain employees.
The female employees bringing suit asserted that their male supervisor frequently shouted in a loud and
hostile manner with little or no provocation. The shouting included profane language and was done publicly. The
supervisor also engaged in what was described as physically hostile conduct and invaded the personal space of the
female employees, shaking his fists or pointing his fingers. The conduct was so bad that one female employee filed
a police report.
The women were intimidated by the conduct and worked in fear and felt physically threatened and anxious.
The women filed suit claiming sexual discrimination.
The Court ruled that there need not be behavior of a sexual nature or any evidence of a sexually based
attitude to prevail on a claim of sex based discrimination. Even if the workplace abuse does not involve sexually
explicit or sexually offensive comments such conduct may constitute sexual discrimination or hostile work
environment harassment if the type, quantity and effect of the abuse is different for women employees than for men.
The Court stated that if a “reasonable woman” would be offended by the conduct then the women could
assert a claim of sex discrimination and hostile work environment sexual harassment. The Court said the ultimate
question is whether the behavior of the supervisor affected women more adversely than it affect men which includes
an analysis of whether:
The behavior toward women versus men was qualitatively different;
The behavior toward women versus men was quantitatively different;
Did the behavior have a different effect - both subjective and objective - on women versus men -
using the reasonable woman standard;
The women were more frequently abused by the harassing conduct versus the men.
What does this case mean:
Claims of harassment and discrimination can now include conduct which is not sexually based, and which
does not include explicit sexual language or conduct . Supervisors must not be permitted to engage in conduct
which includes yelling, shouting, using profanity or other rude, demeaning conduct directed at any one employee
or any group of employees since such conduct can now be grounds for a claim of hostile work environment
harassment and/or discrimination.
What should you do:
Establish a policy that all forms of harassing conduct, including shouting, yelling, using derogatory
and demeaning language, is prohibited ;
Establish a complaint process so that any allegations of harassment or discriminatory conduct can
be reported immediately;
Timely investigate all complaints of harassment or discrimination and take appropriate corrective
action.
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Hostile Work Enviroment - Use Of Profanity Dec 2005 |
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This information is intended to provide guidance in the area of employment law and is provided as a service of the Firm. While every effort
has been made to ensure the accuracy of the information contained in this bulletin, it is not intended to serve as "legal advice". If additional
information or assistance is needed on any of the topics contained in this informational package or any other matter, please feel free to
contact Cynthia Elkins for further information. All rights reserved. ©2005.
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