The most blunt same-sex sexual harassment judicial opinion...evah!

November 27, 2012
By Eric B. Meyer on November 27, 2012 7:00 AM | | Comments
facebookfanpageteh.jpg

So captivating that, at 35 pages long, it held my attention for 24 of them. Winning! 

I'll whet your whistle with the opening paragraph of EEOC v. The McPherson Cos., Inc.:

This Title VII case revolves around repeated churlish, childish, gross, sordid, vulgar, foul, disgusting, profane utterances in the workplace. The question in the case, however, is not how vile and obnoxious this workplace language was. It was vile and obnoxious enough to score nine on a scale of ten. This will become apparent as the story unfolds. The question for the court is rather whether this verbal mayhem morphed from a competition to see who could beat whom in the foul-mouth game into a cause of action under Title VII by an offended employee for same-sex sexual harassment.

After jump, I'll keep my babbling to a minimum and, instead, highlight the matter-of-fact prose of Judge William M. Acker, Jr. from the Northern District of Alabama. And we'll answer the question: Does the reach of Title VII preclude same-sex sexual harassment where offensive workplace language is not directed at a man because he's a man?

* * *

[Editor's note: Indeed, this post contains especially churlish, childish, gross, sordid, vulgar, foul, disgusting, and profane language; mostly gay bashing. Really shitty stuff. So, don't let either this blog post or my affinity for the Court's straightforward, well-reasoned opinion suggest to you that, in any way, I condone this behavior in or out of the workplace; I do not. Rather, this post is meant to highlight a distinction between incivility and behavior that is legally actionable.]

Here is Judge Acker's recitation of the facts, which I had to edit down a bit:

There was a culture of horseplay and off-color badgering in the all-male warehouse where [Plaintiff] Doe worked. Not only would the language used by many employees shock a bishop in his robe, but it would have been unpleasant and offensive to any person of tender sensibilities.
* * *
Doe says that in late 2004 or early 2005 this warehouse banter rose to an intolerable level....According to Doe, in 2005, Mike first referred to him as a "faggot", and made similar comments almost every day up until 2007...Doe says that Mike's comments included: "come here, fag," "hey homo," "look who's here, d**k s**ker," and "why does your breath always smell like a**?" ... According to Doe, Painter made similar comments....Doe alleges that Painter regularly and routinely used expressions like: "faggot," "queer," "homo," "d**k s**ker," "fairy," "a** breath," and "go behind the tank and do what [you] do to other men." ... Such nasty talk, in and of itself, does not prove that the people who engage in it, and who aim it at others, actually believe, or have any reason to believe, that their listeners are actually homosexual or have homosexual propensities. The expression "ass breath" has no homosexual connotation. It sounds more like a comment on someone's halitosis.
* * *
Doe was not the only person with whom this word game was played. Doe does not dispute this fact....Doe is 5'10" and weighs between 190 and 220 pounds. He has tattoos on his arms. He, as well as other male employees, wore earrings. Doe was married and had children. Doe did not carry himself like a woman or act in a manner that could even remotely be described as feminine. Doe testified in his deposition that he was "just as much of a man as anyone else" and that he gave this impression to everyone, including his co-workers. Mike and Tipton both testified that Doe did not look or carry himself in any way that would suggest femininity. Doe even bragged about his way with women. He gave no one any reason to doubt his manhood. He did nothing and said nothing to suggest that he was homosexual.

So, Doe fits the Ravishing Rick Rude profile. And we know from this earlier post, in which I discussed the legal test for actionable same-sex sexual harassment, Rick Rude should lose his same-sex sexual harassment claim. Although there are some cases, like this one, where a plaintiff may be able to be able to establish a claim of same-sex harassment by showing that the harassing conduct was motivated by a belief that the plaintiff did not conform to the stereotypes associated with his sex, it seems to me that the EEOC has a tough to hoe this case, eh Judge Acker?

EEOC seeks an innovative recognition of a new Title VII concept, namely, that the discrimination element can be established by a showing that the male employee was harassed by members of his own sex because the male plaintiff did not conform to the male stereotype. This court is, then, being asked by EEOC to expand the reach of Title VII to preclude offensive workplace language even when it is not directed at a person of the male sex because of that person's male sex.
* * *
The mere fact that Doe's fellow employees used terms like "faggot", assuming that their purpose was to irritate Doe or to irritate others who were also called "faggot", does not prove that Doe would not have been bothered by other demeaning terms such as "idiot" or "fool". This particular workplace was not exactly a Sunday School. Any person who is offended by filthy language, particularly if aimed at him, might well take offense at the language that offended Doe. The alleged "harassers" may or may not have enjoyed getting under Doe's skin, but they undoubtedly did get under his skin.

Judge Acker, allow me to interject. I'm sensing that my readers would benefit from a little more perspective; maybe, a personal anecdote. Can you help us out?

The undersigned judge well remembers a grizzled veteran drill sergeant during basic training. What the sergeant called us draftees equaled or exceeded what Doe heard himself and others being called at McPherson. The sergeant routinely called us "mother-fuckers" or "cock-suckers", when he wanted to emphasize a point or to get our attention, or he put the two expressions together. He may have considered the language as a training technique, or he may just have been born with a foul mouth, but we did not understand that he believed that any of us fit either of the two pejorative appellations he routinely used to describe us to our faces, both of which, if taken literally, would have had provocative and offensive sexual connotations. We called our sergeant "sir". The context was different, but the analogy is good one.

Oh, that is good! Now bring it home...

The court agrees with EEOC that Mike's and Painter's language crossed the line of social acceptability, even in an all male work environment. But, this court is unwilling to assist in the creation of a general rule that will expose all employers to Title VII suits like this one. EEOC asks the court to take Title VII into a brave new world. The mission of EEOC is an important one, but it does not include the cleaning out of all boorish slobs in the workplace. Bad facts sometimes make bad law, but it will require action by Congress to take Title VII over the great divide that now exists between bad language and same-sex harassment. This court respectfully declines to act as the shoehorn to classify bad language as conduct proscribed by Title VII.

Last, but certainly not least, if Congress had intended in Title VII to prevent the use of foul and offensive language in the workplace, it would have had to find a way to circumvent the First Amendment. A public policy against offensive language, if constitutional, would make the courts into word policemen.

Employers: Don't wait for a court to police such employee behavior in your workplace -- even if it is lawful. Implement appropriate policies, train your employees, get this mess under control before it ever escalates to this level.

Image credit: atom.smasher.org, licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.