Ingrid Reeves v. C. H. Robinson Worldwide, Inc.

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JANUARY 20, 2010
JOHN LEY
ACTING CLERK
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 07-10270
________________________
D. C. Docket No. 06-00358-CV-2-IPJ
INGRID REEVES,
Plaintiff-Appellant,
versus
C.H. ROBINSON WORLDWIDE, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(January 20, 2010)
Before DUBINA, Chief Judge, TJOFLAT, EDMONDSON, BIRCH, BLACK,
CARNES, BARKETT, HULL, MARCUS, WILSON, and PRYOR, Circuit Judges.
MARCUS, Circuit Judge:

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We sit en banc to consider this claim of a hostile work environment under
Title VII, 42 U.S.C. § 2000e-2(a)(1), and whether it was error for the district court
to grant summary judgment to appellee C.H. Robinson Worldwide, Inc. (“C.H.
Robinson”). After thorough review of the record, and reading the evidence in a
light most favorable to appellant Ingrid Reeves, we conclude that there is sufficient
evidence to present a jury question of disparate treatment. While the record is
replete with evidence of general, indiscriminate vulgarity, there is also ample
evidence of gender-specific, derogatory comments made about women on account
of their sex. Accordingly, we reverse and remand.
I.
We take the evidence found in this summary judgment record in a light most
favorable to Reeves. We recite the profane language that allegedly permeated this
workplace exactly as it was spoken in order to present and properly examine the
social context in which it arose. We do not explicate this vulgar language lightly,
but only because its full consideration is essential to measure whether these words
and this conduct could be read as having created “an environment that a reasonable
person would find hostile or abusive.” Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 81 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993)).
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The essential facts in this unedifying record are these. From July 2001 to
March 2004, Ingrid Reeves worked as a transportation sales representative in the
Birmingham, Alabama, branch of the shipping company C.H. Robinson. She was
responsible for sales and operations management for freight shipping. Among
other duties, Reeves telephoned companies, set up sales appointments, and
managed shipping freight from beginning to end. Her job was phone-intensive,
requiring her to speak daily with carriers, truck drivers, customers, and dispatchers.
Reeves was the only woman working on the sales floor, an open area structured
into a “pod” of cubicles, with six male co-workers. The only other female
employee in the Birmingham branch worked in the same building, but in an area
separate from Reeves’s “pod.” Because there were no large barriers between the
cubicles, Reeves could often hear the language of her male co-workers as they
spoke over the phone or with each other. Reeves could also hear the central office
radio that sat on a bookshelf near the “pod.”
Reeves had previously worked on a container ship and in the Merchant
Marines, and was no stranger to the coarse language endemic to the transportation
industry. In fact, Reeves herself used generic swear words, such as “shit” or
“damn,” to express her frustration or anger. Nonetheless, she testified, there was
language that her co-workers used at C.H. Robinson that was unusually offensive,
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even compared to the curse words she heard in the Merchant Marines.
Much of this language, while incessant, vulgar, and generally offensive, was
not gender-specific. Throughout her tenure at C.H. Robinson, Reeves frequently
heard generally indiscriminate vulgar language and discussions of sexual topics.
Her co-workers, she claimed, regularly used curse words such as “fuck,” “fucker,”
and “asshole.” They used the intensely offensive epithet “Jesus fucking Christ,”
and the terms “fucking asshole,” “fucking jerk,” and “fucking idiot.” They also
discussed sexual topics such as masturbation and bestiality.
Reeves, however, also identified a substantial corpus of gender-derogatory
language addressed specifically to women as a group in the workplace. Her co-
workers used such language to refer to or to insult individual females with whom
they spoke on the phone or who worked in a separate area of the branch. Although
not speaking to Reeves specifically, Reeves said that her male co-workers referred
to individuals in the workplace as “bitch,” “fucking bitch,” “fucking whore,”
“crack whore,” and “cunt.”
Reeves’s co-worker Scott Gagliardi frequently shouted the epithets “fucking
bitch” or “fucking whore” after hanging up his phone. He also called one woman a
“cunt.” Indeed, Reeves’s supervisor, branch manager David Mitchell, often
referred to his female colleagues by the term “bitch.” Among other examples
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offered, he ordered Reeves to speak with “that stupid bitch on line 4,” and
described a former female colleague, Jackie Burt, as a “lazy, good-for-nothing
bitch.” Gagliardi, in turn, concluded a joke with the punch-line “fuck your sister,
and your mother is a whore.”
Nearly every day, Reeves’s co-workers tuned the office radio to a crude
morning show. Reeves claimed that this program featured, among other things,
regular discussions of women’s anatomy, a graphic discussion of how women’s
nipples harden in the cold, and conversations about the size of women’s breasts. It
also once advertised a “perverse” bikini contest. On one occasion, Reeves’s co-
worker Darryl Harris displayed a pornographic image of a fully naked woman with
her legs spread, exposing her vagina, on his computer screen. Her co-workers also
regularly sang songs about gender-derogatory topics.
Reeves’s co-workers singled out Casey Snider, the only other female
employee in the Birmingham branch, for gender-specific ridicule. In Reeves’s
earshot, albeit out of Snider’s presence, branch manager Mitchell insulted Snider,
saying “[s]he may be a bitch, but she can read.” Gagliardi also referred to Snider
as a “bitch” after she had left the room to use the bathroom. Reeves’s co-workers
openly discussed Snider’s buttocks. Mitchell commented that “[s]he’s got a big
one,” and Gagliardi likewise said that “[s]he’s got a big ass.”
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According to Reeves, this offensive conduct occurred “on a daily basis.”
She testified that “if you were to pull out a calendar right now and I were to look
at, you know, summer of 2001 to spring of ‘04, I could point at every day of the
year that some of this behavior went on. It went on every day.” She indicated that
“this type of phrase, ‘You fucking whore,’ was commonplace.”
Reeves testified that she objected frequently to the crude language, conduct,
and radio station to her co-workers. Much of the time, she identified only a
generally vulgar and offensive working environment. On occasion, however, she
complained about gender-specific offensive behavior, too.
Thus, for example, when she heard offensive topics on the radio, Reeves
would change the radio station, usually to the “classic rock station,” sometimes
“twice in one day.” Reeves said that when her co-workers used generally offensive
terms, she told them that their language was offensive, first orally and then by
email. Reeves’s co-workers’ offensive behavior allegedly persisted unabated. She
testified: “It was pretty obvious to me by this time that complaining to co-workers
was not bringing about any results. . . . [N]othing would change.” Indeed, on one
occasion, apparently aware that their conduct offended her, Reeves’s co-worker
Gagliardi shouted to her, “Ingrid, better wear your earplugs tomorrow,” so that a
co-worker could behave “any way he liked” on his last day of work.
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At least once, Reeves complained directly to a co-worker about his gender-
specific offensive behavior. Reeves described confronting Darryl Harris when he
displayed an explicit image of a naked woman exposing her vagina on his
computer screen. Reeves testified that she saw the picture as she walked by
Harris’s desk from the copy machine. Reeves recalled her reaction: “I was really
offended by that. I was really upset. And it was very humiliating to me. And I
just remember like my hands were like shaking. And . . . I knew I needed to say
something to him because I felt that if I didn’t say something to him, then he would
assume that it’s okay.” Reeves said that she turned to Darryl and told him that she
“saw that image [he] had on [his] computer. It really is offensive. It ma[de] [her]
really uncomfortable.” Harris apologized.
Because her complaints to her co-workers proved futile, Reeves complained
to her branch manager and supervisor, David Mitchell. Reeves explained, “[i]t was
pretty obvious to me by this time that complaining to co-workers was not bringing
about any results. So by about this time, my focus was on upper management.”
She thought that complaining to her branch manager was “reasonable because
according to that sexual harassment sheet [of C.H. Robinson’s policy], it said this
is who you’re supposed to talk to.”
Reeves recalled complaining to David Mitchell on at least five separate
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occasions. Again, Reeves complained about both non-gender-specific, but
generally vulgar behavior, and gender-specific conduct, too. On July 5, 2001,
Reeves’s third day in the office, she first complained about Mitchell’s use of a
vulgar reference to a woman. Mitchell had been speaking with a Japanese
customer on the telephone. Reeves recalled listening to Mitchell’s frustration
rising. He placed the call on hold, looked directly at Reeves, and told her to “talk
to that stupid bitch on line 4.” After Reeves spoke with the customer, she asked to
speak with Mitchell in his office. In this one-on-one meeting, she explained that
the language he had used made her “very uncomfortable.” He apologized, but
offered that “this is just the way I am, and you will just have to learn to ignore it.”
In a later gender-derogatory incident, after Mitchell and Gagliardi commented on
Snider’s buttocks, Reeves exclaimed, “I can’t believe you just said that.”
On February 1, 2002, Reeves complained about both gender-derogatory and
indiscriminately sexual topics on the radio. After Reeves had brought her own
radio to work to “drown out” the offensive radio station and her co-workers’
language, her supervisor, Mitchell, emailed Reeves to ask her to stop playing her
radio. Reeves responded to Mitchell, in writing, to complain that, among other
things, the radio station regularly broadcasted shows on topics such as the size of
women’s breasts and “elderly people having sex.” She also told Mitchell that her
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co-workers discussed generally offensive subjects such as “naked women at a
hotel.” Although Mitchell promised that the office could switch to playing less
offensive programming, two months later, when Reeves tried once again to turn
down the offensive radio station, Mitchell asked her to “turn it back up a notch” so
that he could listen.
Reeves formally complained about her co-workers’ offensive language in
two separate work evaluations. Mitchell admitted that, although he had promised
to “pay closer attention” to the language in the office, it “did not stop.” He
conceded that he never reported her complaints about the offensive language in the
office to the corporate office, although it had been his responsibility to do so.
Mitchell testified that, as a manager, he had “special responsibilities” to “report
any infractions or violations of [the sexual harassment policy] to [the] human
resources department.” Indeed, he acknowledged that as a manager/supervisor, he
was “responsible for establishing and maintaining a climate in the workplace that
allows all employees to do their job effectively.” Reeves testified that the
offensive language and conduct continued unabated. Mitchell “laughed at” the
offensive language, which Reeves claimed “just encouraged it.”
When complaints to Mitchell went unaddressed, Reeves contacted two C.H.
Robinson executives, Director of Branch Operations Molly DuBois and Vice
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President Timothy Manning, to set up a meeting during the course of their June
2002 visit to evaluate the Birmingham branch. Reeves explained it this way: “I
had complained to my branch manager. I was fed up. Nothing was changing. So
at that point, what was reasonable was to go above him, which I did.” Prior to the
executives’ visit, Reeves spoke with Director DuBois over the telephone and
complained generally to her about the “sexually offensive language and
conversation in the office,” and the offensive radio talk show. Although Vice1
President Manning had promised to meet with Reeves during his visit to
Birmingham, he never met with her “one on one.” Reeves testified that she was
“very disappointed” in the executives’ visit, because “they never, ever brought [the
topic of the offensive conduct] up again with [her], and nothing ever changed.
Everything in the office continued day after day after day.”
Reeves resigned from her position at C.H. Robinson on March 24, 2004. On
February 23, 2006, she filed a complaint against C.H. Robinson in the United
States District Court for the Northern District of Alabama, alleging that she had
been subjected to a hostile work environment in violation of Title VII. On
December 11, 2006, the district court granted C.H. Robinson’s motion for
DuBois admitted to talking with Reeves on the telephone about problems at C.H.1
Robinson, but testified that, while “anything’s possible,” she did not remember the content of the
phone call.
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summary judgment. In so doing, the court held that the offensive conduct was not
motivated by Reeves’s sex, because the derogatory language in the office was not
directed at her in particular. The district court reasoned that because the language
was used and the radio program was played in the presence of all employees, “both
men and women were afforded like treatment,” and Reeves was not “intentionally
singled out for adverse treatment because of her sex.” Ingrid Reeves v. C.H.
Robinson Worldwide, No. 2:06-CV-358-IPJ, Slip Op. at 19-20 (N.D. Ala. Dec. 11,
2006) (quotation marks and citation omitted).
Reeves appealed and a panel of this Court reversed the district court’s
judgment, holding, among other things, that Reeves had presented a jury question
about whether the offensive conduct was based on her sex. Reeves v. C.H.
Robinson Worldwide, Inc., 525 F.3d 1139, 1148 (11th Cir. 2008). On May 29,
2009, we vacated this opinion and granted rehearing en banc. Reeves v. C.H.
Robinson Worldwide, Inc., 569 F.3d 1290, 1290-91 (11th Cir. 2009).
II.
We review de novo an order granting summary judgment. Cruz v. Publix
Super Markets, Inc., 428 F.3d 1379, 1382 (11th Cir. 2005). Summary judgment is
appropriate “if the pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any material fact and that
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the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “An
issue of fact is material if it is a legal element of the claim under the applicable
substantive law which might affect the outcome of the case. It is genuine if the
record taken as a whole could lead a rational trier of fact to find for the nonmoving
party.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (citations
and quotation marks omitted). We construe the evidence in a light most favorable
to the non-moving party. St. Paul Fire & Marine Ins. Co. v. ERA Oxford Realty
Co. Greystone, LLC, 572 F.3d 893, 897 (11th Cir. 2009). Here, we read the
evidence in a light most favorable to Reeves.
We begin by reiterating several core principles of employment
discrimination law: first, to prove a hostile work environment under 42 U.S.C. §
2000e-2(a)(1), a plaintiff must show that her employer discriminated because of
her membership in a protected group, and that the offensive conduct was either
severe or pervasive enough to alter the terms or conditions of employment; second,
Title VII is not a civility code, and not all profane or sexual language or conduct
will constitute discrimination in the terms and conditions of employment; third,
workplace conduct cannot be viewed in isolation, but rather is to be viewed
cumulatively, and in its social context; and fourth, a plaintiff can prove a hostile
work environment by showing severe or pervasive discrimination directed against
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her protected group, even if she herself is not individually singled out in the
offensive conduct.
Title VII of the Civil Rights Act prohibits employers from discriminating in
the workplace on the basis of an individual’s “race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a). The statute and accompanying case law organize
discrimination into two categories. In disparate treatment, an employer
discriminates against a worker “with respect to his compensation, terms,
conditions, or privileges of employment, because of” the individual’s membership
in a protected category. Id. § 2000e-2(a)(1). Disparate treatment can take the form
either of a “tangible employment action,” such as a firing or demotion, or of a
“hostile work environment” that changes “the terms and conditions of
employment, even though the employee is not discharged, demoted, or
reassigned.” Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 1245 (11th Cir. 2004).
Disparate impact, in contrast, involves “facially neutral employment practices that
have significant adverse effects on protected groups . . . without proof that the
employer adopted those practices with a discriminatory intent. . . . The evidence in
these ‘disparate impact’ cases usually focuses on statistical disparities, rather than
specific incidents, and on competing explanations for those disparities.” Watson v.
Fort Worth Bank & Trust, 487 U.S. 977, 986-87 (1988) (internal citations omitted).
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“The doctrine seeks the removal of employment obstacles, not required by business
necessity, which create ‘built-in headwinds’ and freeze out protected groups from
job opportunities and advancement.” EEOC v. Joe’s Stone Crab, Inc., 220 F.3d
1263, 1274 (11th Cir. 2000) (quoting Griffin v. Carlin, 755 F.2d 1516, 1524 (11th
Cir. 1985)).
At issue today is whether the conduct alleged to have pervaded C.H.
Robinson created a hostile work environment that “exposed [Reeves] to
disadvantageous terms or conditions of employment to which members of the other
sex [were] not exposed.” Oncale, 523 U.S. at 80 (quoting Harris, 510 U.S. at 25
(Ginsburg, J., concurring)). Accordingly, Reeves’s case is properly read under the
disparate treatment framework.2
There has been some confusion about whether this case is one of disparate treatment or2
disparate impact. This confusion may have originated in the plaintiff’s complaint: it neither
classified the action as disparate treatment, nor identified the specific statutory section under
which C.H. Robinson could be held liable (instead referring generally to “Title VII of the Civil
Rights Act of 1964 (‘Title VII’), 42 U.S.C. § 2000e et seq., as amended.” Complaint at ¶ 6,
Ingrid Reeves v. C.H. Robinson Worldwide, Inc., Case No. 2:06-CV-358-IPJ (N.D. Ala. Feb. 23,
2006)). We reiterate that disparate treatment under 42 U.S.C. § 2000e-2(a)(1) is the proper
framework under which to evaluate hostile work environment claims. See, e.g., Baldwin v. Blue
Cross/Blue Shield of Ala., 480 F.3d 1287, 1301-02 (11th Cir. 2007); Henson v. City of Dundee,
682 F.2d 897, 902 (11th Cir. 1982). Under this framework, sexual harassment violates Title VII
if it is “sufficiently severe or pervasive to alter the terms and conditions of work.” Baldwin, 480
F.3d at 1300. The hostile work environment that Reeves has described was not “facially
neutral.” She has alleged, among others, that the office environment was permeated with
gender-derogatory slurs and other demeaning, gender-specific conduct. The crux of Reeves’s
actionable claim is that these gender-specific actions exposed her to humiliation and
discrimination that none of her male co-workers faced. She presented evidence of “specific
incidents,” not “statistical disparities.” See Watson v. Fort Worth Bank & Trust, 487 U.S. 977,
986-87 (1988).
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The legal standard for hostile work environment claims in this Circuit is
well-settled. To prove a hostile work environment, the plaintiff must show
(1) that he or she belongs to a protected group; (2) that the employee
has been subject to unwelcome sexual harassment, such as sexual
advances, requests for sexual favors, and other conduct of a sexual
nature; (3) that the harassment must have been based on the sex of the
employee; (4) that the harassment was sufficiently severe or pervasive
to alter the terms and conditions of employment and create a
discriminatorily abusive working environment; and (5) a basis for
holding the employer liable.
Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999) (en banc) (citation
omitted). “Workplace conduct is not measured in isolation.” Clark County Sch.
Dist. v. Breeden, 532 U.S. 268, 270 (2001) (per curiam). Rather, the evidence of
harassment is considered both cumulatively and in the totality of the
circumstances. Mendoza, 195 F.3d at 1242.
Either severity or pervasiveness is sufficient to establish a violation of Title
VII. See, e.g., Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 743 (1998) (noting
that hostile work environment claims “require[] harassment that is severe or
pervasive”) (emphasis added). In evaluating allegedly discriminatory conduct, we
consider its “frequency . . . ; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee’s work performance.” Harris, 510 U.S. at 23, quoted in
Mendoza, 195 F.3d at 1258 (Tjoflat, J., concurring in part, and dissenting in part).
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Moreover, the plaintiff must prove that the environment was both
subjectively and objectively hostile. Id. at 21-22. “The employee must
‘subjectively perceive’ the harassment as sufficiently severe and pervasive to alter
the terms or conditions of employment, and this subjective perception must be
objectively reasonable.” Mendoza, 195 F.3d at 1246 (quoting Harris, 510 U.S. at
21-22). “So long as the environment would reasonably be perceived, and is
perceived, as hostile or abusive, there is no need for it also to be psychologically
injurious.” Harris, 510 U.S. at 22 (citation omitted). “[T]he objective severity of
harassment should be judged from the perspective of a reasonable person in the
plaintiff’s position, considering ‘all the circumstances.’” Oncale, 523 U.S. at 81
(quoting Harris, 510 U.S. at 23).
In a case like this, where both gender-specific and general, indiscriminate
vulgarity allegedly pervaded the workplace, we reaffirm the bedrock principle that
not all objectionable conduct or language amounts to discrimination under Title
VII. Although gender-specific language that imposes a change in the terms or
conditions of employment based on sex will violate Title VII, general vulgarity or
references to sex that are indiscriminate in nature will not, standing alone,
generally be actionable. Title VII is not a “general civility code.” Faragher v. City
of Boca Raton, 524 U.S. 775, 788 (1998) (quoting Oncale, 523 U.S. at 80). As we
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observed in Baldwin v. Blue Cross/Blue Shield of Alabama, “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.”
480 F.3d at 1301-02. Indeed, as the Supreme Court observed in Oncale v.
Sundowner Offshore Services, Inc., Title VII
does not reach genuine but innocuous differences in the ways men and
women routinely interact with members of the same sex and of the
opposite sex. The prohibition of harassment on the basis of sex
requires neither asexuality nor androgyny in the workplace; it forbids
only behavior so objectively offensive as to alter the ‘conditions’ of
the victim’s employment.
523 U.S. at 81.
In particular, sexual language and discussions that truly are indiscriminate
do not themselves establish sexual harassment under Title VII. The Supreme
Court has “never held that workplace harassment, even harassment between men
and women, is automatically discrimination because of sex merely because the
words used have sexual content or connotations.” Id. at 80. Title VII’s test instead
is whether “members of one sex are exposed to disadvantageous terms or
conditions of employment to which members of the other sex are not exposed.” Id.
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(quoting Harris, 510 U.S. at 25 (Ginsburg, J., concurring)).3
Nevertheless, 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 be otherwise rife with generally
indiscriminate vulgar conduct. Title VII does not offer boorish employers a free
pass to discriminate against their employees specifically on account of gender just
because they have tolerated pervasive but indiscriminate profanity as well. See
Williams v. Gen. Motors Corp., 187 F.3d 553, 564 (6th Cir. 1999) (“We do not
believe that a woman who chooses to work in the male-dominated trades
relinquishes her right to be free from sexual harassment.”).
Equally important to our inquiry here is the common-sense rule that the
context of offending words or conduct is essential to the Title VII analysis. Even
gender-specific terms cannot give rise to a cognizable Title VII claim if used in a
context that plainly has no reference to gender. Thus, for example, were a
Likewise, the Courts of Appeals have uniformly observed that Title VII is not a civility3
code, and that harassment must discriminate on the basis of a protected characteristic in order to
be actionable. See, e.g., Lee-Crespo v. Schering-Plough Del Caribe Inc., 354 F.3d 34, 37 (1st
Cir. 2003); Petrosino v. Bell Atlantic, 385 F.3d 210, 223 (2d Cir. 2004); Abramson v. William
Paterson College of N.J., 260 F.3d 265, 280 (3d Cir. 2001); Ziskie v. Mineta, 547 F.3d 220, 228
(4th Cir. 2008); Indest v. Freeman Decorating, Inc., 164 F.3d 258, 263-64 (5th Cir. 1999); Clark
v. United Parcel Serv., Inc., 400 F.3d 341, 352 (6th Cir. 2005); Stephens v. Erickson, 569 F.3d
779, 790 (7th Cir. 2009); Anderson v. Family Dollar Stores of Ark., Inc., 579 F.3d 858, 862-63
(8th Cir. 2009); Manatt v. Bank of Am., NA, 339 F.3d 792, 798 (9th Cir. 2003); Etsitty v. Utah
Transit Auth., 502 F.3d 1215, 1220-21 (10th Cir. 2007); Davis v. Coastal Int’l. Sec., Inc., 275
F.3d 1119, 1123-24 (D.C. Cir. 2002).
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frustrated sales representative to shout “Son-of-a-bitch! They lost that truck,” the
term would bear no reference to gender. In contrast, however, when a co-worker
calls a female employee a “bitch,” the word is gender-derogatory. As we observed
in Baldwin, the terms “bitch” and “slut” are “more degrading to women than to
men.” 480 F.3d at 1302. The original definition of the term “bitch” is “the female
of the dog.” Webster’s Third New International Dictionary 222 (2002). The
term’s secondary meanings are likewise gender-specific: “a lewd or immoral
woman” or “a malicious, spiteful, and domineering woman.” Id. Calling a female
colleague a “bitch” is firmly rooted in gender. It is humiliating and degrading
based on sex. Cf. Harris, 510 U.S. at 23 (holding that, to prove a hostile work
environment, courts may consider whether conduct is humiliating).4
As the Supreme Court has observed, “[t]he real social impact of workplace
behavior often depends on a constellation of surrounding circumstances,
expectations, and relationships which are not fully captured by a simple recitation
of the words used or the physical acts performed.” Oncale, 523 U.S. at 81-82.
Similarly, the context may illuminate whether the use of an extremely vulgar, gender-4
neutral term such as “fucking” would contribute to a hostile work environment. “Fucking” can
be used as an intensifying adjective before gender-specific epithets such as “bitch.” In that
context, “fucking” is used to strengthen the attack on women, and is therefore relevant to the
Title VII analysis. However, the obscene word does not itself afford a gender-specific meaning.
Thus, when used in context without reference to gender, “fuck” and “fucking” fall more aptly
under the rubric of general vulgarity that Title VII does not regulate. See Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (observing that harassment with sexual
connotations is not by itself sexual harassment).
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See also Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 69 (2006)
(“Context matters.”); EEOC v. WC&M Enters., Inc., 496 F.3d 393, 398-99 (5th
Cir. 2007) (emphasizing the importance of context for analyzing claims under Title
VII). Thus, we proceed with “[c]ommon sense, and an appropriate sensitivity to
social context,” to distinguish between general office vulgarity and the “conduct
which a reasonable person in the plaintiff’s position would find severely hostile or
abusive.” Oncale, 523 U.S. at 82.
A final principle that guides us in this decision is that words and conduct
that are sufficiently gender-specific and either severe or pervasive may state a
claim of a hostile work environment, even if the words are not directed specifically
at the plaintiff. Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 331-32 (4th Cir.
2003) (en banc) (concluding that Title VII may be violated even when the plaintiff
is not individually targeted). See also Petrosino v. Bell Atlantic, 385 F.3d 210, 221
(2d Cir. 2004). It is enough to hear co-workers on a daily basis refer to female
colleagues as “bitches,” “whores” and “cunts,” to understand that they view
women negatively, and in a humiliating or degrading way. The harasser need not
close the circle with reference to the plaintiff specifically: “and you are a ‘bitch,’
too.” See Yuknis v. First Student, Inc., 481 F.3d 552, 553-54 (7th Cir. 2007)
(observing that comments need not be directed specifically at a person to be
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discriminatory; comments addressed to the plaintiff’s “target area” -- that is, her
protected group -- may constitute actionable harassment). Similarly, words or
conduct with sexual content that disparately expose members of one sex to
disadvantageous terms or conditions of employment also may support a claim
under Title VII. See Petrosino, 385 F.3d at 222 (“[T]he depiction of women in the
offensive jokes and graphics was uniformly sexually demeaning and
communicated the message that women as a group were available for sexual
exploitation by men.”).
Evidence that co-workers aimed their insults at a protected group may give
rise to the inference of an intent to discriminate on the basis of sex, even when
those insults are not directed at the individual employee. A jury could infer the
requisite intent to discriminate when that employee complained to her employer
about the humiliating and degrading nature of the commentary about women as a
group and the conduct persisted unabated. See Faragher, 524 U.S. at 789 (an
employer’s knowledge and refusal to act may be read as “the employer’s adoption
of the offending conduct and its results, quite as if they had been authorized
affirmatively as the employer’s policy.”).
III.
If the environment portrayed by Reeves at C.H. Robinson had just involved
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a generally vulgar workplace whose indiscriminate insults and sexually-laden
conversation did not focus on the gender of the victim, we would face a very
different case. However, a substantial portion of the words and conduct alleged in
this case may reasonably be read as gender-specific, derogatory, and humiliating.
This evidence, measured against the aforementioned principles, is sufficient to
afford the inference that the offending conduct was based on the sex of the
employee.
A jury reasonably could find on this record that a meaningful portion of the
allegedly offensive conduct in the office contributed to conditions that were
humiliating and degrading to women on account of their gender, and therefore may
have created a discriminatorily abusive working environment. The terms “whore,”
“bitch,” and “cunt,” the vulgar discussions of women’s breasts, nipples, and
buttocks, and the pornographic image of a woman in the office were each targeted
at Reeves’s gender. Like “bitch,” “whore” is traditionally used to refer only to
women. The dictionary defines “whore” in terms of gender as “a woman who
practices unlawful sexual commerce.” Webster’s Third New International
Dictionary 2612. “Cunt,” referring to a woman’s vagina, is the essence of a
gender-specific slur. See also Forrest v. Brinker Int’l Payroll Co., 511 F.3d 225,
229 (1st Cir. 2007) (“A raft of case law . . . establishes that the use of sexually
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degrading, gender-specific epithets, such as ‘slut,’ ‘cunt,’ ‘whore,’ and ‘bitch,’ . . .
has been consistently held to constitute harassment based upon sex.”); Winsor v.
Hinckley Dodge, Inc., 79 F.3d 996, 1000-01 (10th Cir. 1996) (holding that the
“intensely degrading” “sexual epithets” “‘whore,’ ‘floor whore,’ ‘curb whore,’
‘curb side cunt,’ and ‘bitch’” demonstrated a violation of Title VII); Burns v.
McGregor Elec. Indus., Inc., 989 F.2d 959, 964-65 (8th Cir. 1993) (describing
terms such as “bitch,” “slut” and “cunt” as “[v]ulgar and offensive epithets” that
amount to harassment based on sex); Andrews v. City of Phila., 895 F.2d 1469,
1485 (3d Cir. 1990) (“[T]he pervasive use of derogatory and insulting terms
relating to women generally and addressed to female employees personally may
serve as evidence of a hostile environment.”). A reasonable juror could find that
this gender-derogatory language and conduct exposed Reeves to “disadvantageous
terms or conditions of employment.” Oncale, 523 U.S. at 80 (quoting Harris, 510
U.S. at 25 (Ginsburg, J., concurring)).5
We do not accord too much weight to the morning radio show. Like so much of the5
workplace conduct, the morning radio show, which Reeves compared to a Howard Stern show,
also aired general, indiscriminate vulgarity and profanity. Nevertheless, Reeves’s account of the
contents of the show may be relevant in some ways: Reeves also claims to have repeatedly heard
gender-specific, derogatory comments about women’s anatomy; the commentary may have been
subjectively or objectively offensive; and the branch manager’s and co-workers’ refusal to
respond to her repeated complaints may yield an inference about their intent to discriminate. We
add that, while the F.M. broadcast station that featured the morning show is subject to F.C.C.
controls for obscene language, see 47 C.F.R. § 73.4165 (regulation of broadcasting obscenity on
the radio); FCC v. Pacifica Found., 438 U.S. 726, 737-38 (1978) (F.C.C. has the power to
regulate profanity over the radio), the show’s commentary need not have been obscene to be
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The social context at C.H. Robinson detailed by Reeves allows for the
inference to be drawn that the abuse did not amount to simple teasing, offhand
comments, or isolated incidents, see Faragher, 524 U.S. at 788, but rather
constituted repeated and intentional discrimination directed at women as a group, if
not at Reeves specifically. It is not fatal to her claim that Reeves’s co-workers
never directly called her a “bitch,” a “fucking whore,” or a “cunt.” Reeves claims
that the offensive conduct occurred “every single day,” and that the manager
“accepted and tolerated that same behavior” over her repeated complaints. If C.H.
Robinson tolerated this environment, it may be found to have adopted “the
offending conduct and its results,” just as if the employer affirmatively authorized
it. See id. at 789.
C.H. Robinson objects, however, that there is no proof of gender animus
because Reeves’s co-workers began to use gender-specific epithets before Ingrid
Reeves arrived at the workplace. Thus, C.H. Robinson argues that Reeves’s
presence was irrelevant to the insults and, therefore, the conduct did not occur on
account of her sex.
This argument is inconsistent with the central premise of Title VII: workers
are to be protected from discrimination on account of gender in the workplace.
considered as part of the Title VII calculus.
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Congress made a clear choice in enacting Title VII of the Civil Rights Act of 1964
“‘to strike at the entire spectrum of disparate treatment of men and women’ in
employment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) (quoting
Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978)).
“The critical issue, Title VII’s text indicates, is whether members of one sex are
exposed to disadvantageous terms or conditions of employment to which members
of the other sex are not exposed.” Oncale, 523 U.S. at 80 (quoting Harris, 510 U.S.
at 25 (Ginsburg, J., concurring)). Here, Reeves claims that her conditions of
employment were humiliating and degrading in a way that the conditions of her
male co-workers’ employment were not. It is no answer to say that the workplace
may have been vulgar and sexually degrading before Reeves arrived. Once Ingrid
Reeves entered her workplace, the discriminatory conduct became actionable under
the law. Congress has determined that Reeves had a right not to suffer conditions
in the workplace that were disparately humiliating, abusive, or degrading.
At the end of the day, this is a question of intent, which, because intent may
be difficult to discern, often requires recourse to circumstantial evidence. See
Crawford v. Carroll, 529 F.3d 961, 975-76 (11th Cir. 2008) (noting that a plaintiff
may prove discriminatory intent under Title VII by direct or circumstantial
evidence); Denney v. City of Albany, 247 F.3d 1172, 1182 (11th Cir. 2001)
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(“Disparate treatment claims require proof of discriminatory intent either through
direct or circumstantial evidence.”) (quoting Joe’s Stone Crab, Inc., 220 F.3d at
1286). We are satisfied on this record that a jury could infer the necessary intent.
Simply stated, this is a question for the jury.
Finally, C.H. Robinson suggests that Reeves’s co-workers used the terms
“bitch” and “whore” to refer to both men and women and that, therefore, these
terms cannot themselves be gender-specific. First, as for the term “bitch,” there
may be a dispute of material fact about this matter. While Mitchell specifically
testified that he referred to men in the office by the term “bitch,” Reeves claimed
never to have heard any male employee refer to another male as a “bitch.”
Compare Mitchell Dep. 83 with Reeves Decl. ¶ 4. But even accepting that
Reeves’s co-workers sometimes used the terms “bitch” and “whore” to refer to
men, this usage may not make the epithets any the less offensive to women on
account of gender. It is undeniable that the terms “bitch” and “whore” have
gender-specific meanings. Calling a man a “bitch” belittles him precisely because
it belittles women. It implies that the male object of ridicule is a lesser man and
feminine, and may not belong in the workplace. Indeed, it insults the man by
comparing him to a woman, and, thereby, could be taken as humiliating to women
as a group as well.
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In short, if Reeves’s account is to be believed, C.H. Robinson’s workplace
was more than a rough environment -- indiscriminately vulgar, profane, and sexual.
Instead, a jury reasonably could find that it was a workplace that exposed Reeves
to disadvantageous terms or conditions of employment to which members of the
other sex were not exposed. Title VII was plainly designed to protect members of
a protected group from adverse conditions of employment like those Reeves
alleges were endemic to C.H. Robinson.
Accordingly, we REVERSE and REMAND for further proceedings
consistent with this opinion.
REVERSED AND REMANDED.
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