1. Posted by: Hans Bader - 05/05/2008

   The court’s ruling is based on a particularly weak argument. It contradicts circuit precedent that requires a showing of purposeful, intentional discrimination for sexual harassment claims.

   In the Eleventh Circuit — unlike some circuits — the elements of a Title VII sexual harassment claim and a Fourteenth Amendment sexual harassment claim are the same, meaning that a plaintiff must show purposeful, intentional discrimination (by purposeful, I mean an intent to treat differently, not a specific intent to harm — a defendant who grabs women’s buttocks over their protests is not immune from liability merely because he deludedly thinks he is God’s gift to women), not just that the plaintiff was reasonably offended.

   In Cross v. Alabama, 49 F.3d 1490, 1507-08 (11th Cir. 1995), the Eleventh Circuit held that “the elements of the two causes of action [sexual harassment claims under Title VII and the Fourteenth Amendment] are the same,” meaning that a plaintiff “must prove discriminatory motive or purpose.”

   The Supreme Court has made clear that the fact that a woman is adversely affected, and that an employer knows this, is not enough to satisfy this exacting standard unless the employer intends to treat the female employee differently:

   “Discriminatory purpose,’ however, implies more than intent as volition or intent as awareness of consequences. . .It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part “because of,” not merely “in spite of,” its adverse effects upon an identifiable group.” Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979)

   Thus, for the plaintiff to prevail, she must show that her co-workers aimed offensive comments at her based on her sex (or broadcast the offensive comments specifically to annoy her based on her sex), not just that she was reasonably offended by them and that they were pervasive.

   “Title VII does not prohibit profanity alone, however profane. It does not prohibit harassment alone, however severe and pervasive. Instead, Title VII prohibits discrimination, including harassment that discriminates based on a protected category such as sex. Because a claim of sexual harassment under Title VII is a claim of disparate treatment, in order to prevail a plaintiff must show that similarly situated persons not of her sex were treated differently and better.” Baldwin v. Blue Cross, 480 F.3d 1287, 1301-02 (11th Cir. 2007); see also Lyle v. Warner Bros., 132 P.3d 211 (Cal. 2006) (sexual jokes not aimed at plaintiff did not support her sexual harassment claim); Scusa v. Nestle U.S.A., Inc., 181 F.3d 958 (8th Cir. 1998); Hocevar v. Purdue Frederick Co., 223 F.3d 721, 737 (8th Cir. 2000); Duncan v. Denver, 397 F.3d 1300 (10th Cir. 2005); Pasqua v. Metropolitan Life Ins., 101 F.3d 514, 517 (7th Cir. 1996); Gallant v. Board. of Trustees, 997 F. Supp. 1231, 1232, 1234-35 (N.D. Cal. 1998).

   Courts recognize that being terribly offended, even for good reason, is just not enough for sexual harassment liability where discriminatory intent or purpose is required. For example, the Seventh Circuit, which does not (unlike the Eleventh Circuit) require the same showing to recover on a Title VII claim as on an equal protection claim, recognizes that even grossly bigoted statements made in the presence of a plaintiff doesn’t show the intent needed to recover on a 14th Amendment harassment claim. In Huff v. Sheahan, 493 F.3d 893, 902 (7th Cir. 2007), that court upheld a ruling for a harassment defendant under the 14th Amendment, because “relief is available to a plaintiff claiming a hostile work environment only when she can demonstrate that the defendant acted with discriminatory intent.” By contrast, itt reversed a ruling for the defendant under Title VII, ONLY because it — unlike the Eleventh Circuit’s decision in cases like Cross v. Alabama — has precedents specifically allowing plaintiffs to recover for sexual harassment under Title VII absent discriminatory purpose, and specifically holding that the Title VII standard is different from the 14th Amendment standard.

   The Eleventh Circuit, by contrast, made very clear in Cross v. State of Alabama, 49 F.3d 1490, 1507-08 (11th Cir. 1995), that a plaintiff “must prove discriminatory motive or purpose” under BOTH Title VII and the Equal Protection Clause (Section 1983), because “the elements of the two causes of action are the same.”

   Eleventh Circuit judges have reiterated that understanding ever since. See Mitchell v. Pope, 189 Fed. Appx. 911, 913, 2006 WL 197600111, *1 (11th Cir. July 14, 2006) (”elements of the two causes of action are the same”); Downing v. Bd. of Trustees of Univ. of Alabama, 321 F.3d 1017, 1023 (11th Cir. 2003) (”Cross holds that the elements of a sexual harassment claim under Title VII and the Equal Protection Clause are the same — meaning that the employee must prove that the state actor intended to discriminate because of the employee’s sex”) (opinion later withdrawn for other reasons); Downing, 321 F.3d at 1022 n.9 (In Title VII, “this language is aimed at intentional discrimination, and to prove a violation, a plaintiff must profer either direct or indirect evidence of the employer’s discriminatory intent”).

   The Reeves decision conflicts with circuit precedents such as Cross v. Alabama, 49 F.3d 1490, 1507-08 (11th Cir. 1995) and Baldwin v. Blue Cross, 480 F.3d 1287, 1301-02 (11th Cir. 2007) (requiring proof that “similarly situated persons not of” plaintiff’s “sex were treated differently and better”).

   Reeves justified its jettisoning of the discriminatory intent requirement by saying that such intent is not required in racial harassment cases. But even if that were in fact true (and it does not appear to be in some circuits, see Caver v. City of Trenton, 420 F.3d 243 (3d Cir. 2005) (holding that racial harassment plaintiff, just like sexual harassment plaintiff, must show that “(1) he suffered intentional discrimination because of his [race]” and “(2) the discrimination was pervasive and regular”)), circuit panels are bound by their own past sexual harassment precedents whether or not they seem consistent with other areas of the law, like racial harassment.

   Moreover, requiring discriminatory intent or purpose is consistent with how courts handle religious harassment cases, where discriminatory treatment and intent are required, and the panel gave no justification for choosing to ignore those cases in favor of its perception of how racial harassment cases ignore the requirement of discriminatory intent. See Rivera v. Puerto Rico Aqueduct and Sewers Authority, 331 F.3d 183, 190 (1st Cir. 2003) (rejecting religious harassment claim because of absence of discriminatory purpose; “Rosario asserts that the lyrics of the song are offensive to her, given her deep religious convictions. We do not doubt this is so. But the question is not whether a religious person could find the song offensive; it is whether religious animus prompted Rivera to sing it to her”).

2. Posted by: Hans Bader - 05/05/2008

   The court’s ruling allowing the plaintiff to sue without showing that the defendant’s employees had a discriminatory purpose, merely because the comments she complained about disproportionately offended her, raises additional problems, aside from conflicting with binding precedents like those discussed above.

   The court’s ruling may also lead to potential equal-protection problems down the road, by giving a gender-based preference, in allowing women to sue over language for which their male co-workers have no remedy.

   Assuming that sexual speech is disproportionately offensive to female employees and thus has a “disparate impact” on them — as many sexual harassment rulings do — raises serious equal-protection problems, since it rests on a gender stereotype. In striking down a statute banning “obscene, profane, indecent, vulgar, or suggestive” communications to women, a court observed that laws “based on ‘old notions’ such as a belief that females should be afforded special protection from ‘rough talk’ because of their perceived ’special sensitivities’ can no longer withstand equal protection scrutiny.” See In re Joseph T., 430 S.E.2d 523, 524 (S.C. 1993).

   Moreover, it ignores limits contained in “disparate impact” law itself. Disparate impact claims typically require proof that an employer practice systematically excludes female or minority employees, and can’t be based on the impact on just one employee. See Coe v. Yellow Freight, 646 F.2d 444 (10th Cir. 1981). The typical sexual harassment case involves just a single plaintiff, who often seeks damages even if other employees of the same gender are perfectly happy with their workplace, or if there are no other employees of her gender in the workplace. In such cases, there simply is no “disparate impact” on the overall gender. In Reeves, the plaintiff seems to have been the only female employee adversely affected by the conduct she recounted.

   Moreover, the damages provision of Title VII, 42 USC 1981a, forbids the principal remedy that most harassment plaintiffs seek (damages) in cases of “disparate impact,” reserving damages for cases of “intentional discrimination.”

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