The Eleventh Circuit, in Reeves v. C.H. Robinson Worldwide, Inc., recently addressed the question of whether vulgar language, even if not directed specifically at the plaintiff, could be actionable as sexual harassment. 2110 WL 174074 (11th Cir. Jan. 20, 2010). The plaintiff was one of only two women working at a shipping company in Birmingham, Alabama. She claimed that her male co-workers referred to females in the workplace with extremely offensive terms like the “b” word and the “c” word”. Plaintiff also alleged that her male co-workers listened to a crude morning radio show that used offensive language and one employee displayed a naked image of a woman on his screen saver.
The court stated that general vulgarity is not enough to violate title VII as it is not a “civility code”. Nevertheless, addressing the gender specific vulgarity such as referring to women as the “b” or “c” word, the Court said “a member of a protected group cannot be forced to endure pervasive, derogatory conduct and references that are gender specific in the workplace, just because the workplace may otherwise be rife with generally indiscriminate profanity as well”.
In overturning a summary judgment, the Reeves court found that while much of the vulgar language used in the plaintiff’s office was general and indiscriminate, a substantial portion of the vulgar and profane words were gender-specific, such as offensive words referring to women’s anatomy and promiscuity. Even if the words were not directed at the plaintiff, the court noted that such gender-specific words and conduct could lead to liability for sexual harassment.
The Reeves case differs from many other cases that focus on whether the alleged sexual harassment was directed toward the plaintiff. If this case is the new standard for sexual harassment cases, this could open the door to a slew of claims in industries wherein vulgar language is the norm if the language is gender specific. This is a fine line because a majority of vulgar language is gender specific even if not intended to be used in that way. Employers may now have to police the type of vulgarities used in the workplace, even if not directed at an individual employee. As such, employers should consider the context in which vulgar language or conduct is used in the workplace and whether it refers to one gender even if not directed at a specific person. As such, the employer should respond to complaints from an employee if vulgar and offensive conduct even if not directed at the employee.
How do you think this will play out it certain industries that are known for using vulgar and often gender specific language? Are there certain industries that will be affected more than others? What vulgarities are considered gender specific?