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1. FEATURE STORY:
NON-SEXUAL BEHAVIOR NETS SEX
HARASSMENT SETTLEMENT

You would think that employees would typically have a tough time proving that a bully's behavior amounted to sexual harassment under Title VII because that behavior was not of a sexual nature or motivated by an animus towards the employees because of their sex. In a 2005 lawsuit, the 9th Circuit had a different take — it took the "sexual" out of sexual harassment. That suit has since turned into a settlement of $750,000 for the employees.

A Little Back Story

The Equal Employment Opportunity Commission's (EEOC) lawsuit, filed on behalf of three female employees, alleged that a manager subjected them to abusive treatment on a daily basis. He allegedly screamed and yelled at the employees with little or no provocation, used profanity, and frequently berated them in front of others. The manager would turn bright red with bulging neck veins as he screamed, coming so close the employees would often feel his saliva on their faces. He also physically intimidated them by sneaking up from behind and watching over their work for no apparent reason. In addition, he would shake his fists at the employees and come within striking distance, raising their fears that he would physically attack them.

Even though members of upper management personally witnessed some of the manager's behavior and received complaints about him, they failed to take action to stop the harassment. In fact, despite the complaints, they promoted the manager to an executive director post.

A federal district court originally dismissed the case, ruling that the behavior was not overtly sexual, and thus not unlawful sexual harassment. The 9th Circuit stated that it was wrong for the lower court to dismiss the case. Said the court: Harassing conduct does not have to be motivated by lust or blatant misogyny to be illegal sex discrimination.

The Court's Take

While sex-specific content is one way to establish discriminatory harassment, it's not the only way, said the 9th Circuit. It analyzed both the subjective and objective effects of the behavior, as well as the degree of frequency with which each gender was subject to the conduct, to determine whether the behavior was disadvantageous to female employees, and, thus, illegal under Title VII.

The court noted that it was not necessary for the women to prove that their boss intended to discriminate against them or to target them based on gender. "Title VII is aimed at the consequences or effects of an employment practice and not at the...motivation of co-workers or employers."

The effects: The female employees cried, became panicked, felt physically threatened, avoided contact with the boss, called the police, and even resigned. Their reactions, said the court, were reasonable. No evidence suggested that any male employee had anywhere near the same severity of reactions to the boss's conduct; in fact, it wasn't uncommon for them to hang out with the boss in his office, talking and laughing.

The frequency: The employer tried to argue that it employed more females than males, so the differential effects experienced by women were merely incidental. Unconvinced, the court held that an unbalanced distribution of men and women in relevant positions does not automatically defeat a showing of differential treatment.

"[T]his case illustrates an alternative motivational theory in which an abusive bully takes advantage of a traditionally female workplace because he is more comfortable when bullying women than when bullying men," said the court. (EEOC v. National Education Association, Alaska, 9th Cir., No. 04-35029, 2005)

Along with the settlement, the employer agreed to review its employment policies, provide effective means to address discrimination complaints, and educate employees about their rights and responsibilities in the workplace. Said the EEOC: The lawsuit and $750,000 settlement send the message that abusive behavior targeted at women is unlawful and will not be tolerated by the EEOC.

A Little Advice

The EEOC sent the message that employers would be held accountable for a workplace bully's behavior that rises to the level of illegal harassment and discrimination. Avoid getting called on the EEOC carpet by taking these steps.

1. Add a clause to your code of conduct policy that prohibits all employees from engaging in bullying behaviors, including yelling at, berating, and intimidating co-workers, subordinates, and other employees.

2. Mete out discipline for unprofessional conduct, regardless of gender effects.

3. Train all managers and supervisors to recognize that behavior does not need to be gender-specific to be gender-biased, and what matters is the effect of the conduct, not the bully's intentions.

EMPLOYEES SHOWING THEIR AGE: A MANAGER’S LEGITIMATE BUSINESS INTEREST?

Time and again, you've been warned to base employment decisions on legitimate business concerns. At first glance, hiring employees who can connect with customers, or planning for the company's future by asking about retirement plans, seem like legitimate job-related moves. Upon closer look, those actions could...View the full story on our website.

FREE REPORT OF THE MONTH:

Check out the new Free Report, "Religion Roundup," which provides a concise overview of many of the religious issues you may face in the workplace and how you can resolve them. Use it as part of your company's anti-discrimination training efforts, as a guide for new managers, or as a review for veteran supervisors.

Kick back, relax, and take a few minutes to check out the HR Soapbox, "Makeup Ruling Isn't Pretty," in which an editor talks about whether beauty should be in the eye of the employer.