Ninth Circuit Addresses Breadth of “Sexual” Harassment and Provides an Important Reminder for Employees and Their Trainers

Volume 4, Issue 11
September 9, 2005

In Christopher v. National Education Association, Alaska, Nos. 04-35029, 04-35201 (9th Cir. Sept. 2, 2005), the Ninth Circuit addressed the conduct of a manager who could be described as an "equal-opportunity" harasser. Although the manager berated both male and female employees, the Court found that Title VII can still be violated if there were sufficient differences in the type, quantity, andeffect of harassment imposed upon the female employees. Moreover, the Court found that the manager's conduct toward female employees could be "because of their sex," and thus a violation of Title VII, even though the manager never made sexually explicit or sexually offensive comments. The case serves as an important reminder that the scope of "sexual" harassment claims has significantly broadened, underscoring the need for thorough training of employees and supervisors.

The Christopher lawsuit was filed by the EEOC on behalf of three female employees of NEA-Alaska, a labor union that represents public school employees. The employees contended that they were harassed by Thomas Harvey, Assistant Executive Director of NEA-Alaska. They alleged that Harvey frequently shouted at them in a loud and hostile manner, using profanity, invading their personal space, and shaking his fist or fingers at them. One employee contended that Harvey "lunged across the table" at her and shook his fist at her, while another explained that he came behind her, grabbed her shoulders and yelled at her to get back to her office while she was talking with a union representative. Male employees confirmed much of Harvey's conduct and testified that the women were terrified of him.

The evidence did not reveal, however, that Harvey made sexual overtures or lewd comments to the female employees. He was not alleged to have made references to their bodies, make sexual epithets, or even reference gender during his tirades. As such, Harvey's alleged conduct did not appear, on its face, to be sex or gender related. Indeed, testimony was presented that Harvey yelled at the male employees too and "scared the hell out of" one male employee when he launched himself within three inches of the employee's face, screaming about insubordination, and spitting on the employee.

The district court granted summary judgment on behalf of the employer, finding that a reasonable jury could not conclude that Harvey's conduct was "because of sex" and in violation of Title VII. The district court reasoned that the "because of sex" element of a Title VII sexual harassment claim required that the behavior be either "of a sexual nature" or motivated by "sexual animus." While the trial court recognized that Harvey was rude, overbearing, obnoxious, vulgar and "generally unpleasant," it held that because there was no evidence that any of the exchanges toward the plaintiffs were motivated by lust or sexual animus toward women, his conduct was not discriminatory.

The Ninth Circuit Court disagreed and reminded us that harassing conduct need not be motivated by sexual desire nor must it be overtly sex or gender specific. The Court relied upon Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), where the United States Supreme Court recognized same-sex harassment toward a male employee who was subjected to humiliating sexual conduct from his male coworkers. The Christopher Court explained that since Oncale, the ultimate question in sexual harassment cases is the extent to which members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed. This focus has resulted in plaintiff victories in same-sex harassment cases where the conduct does not appear sexual and is instead often described as "hazing" or "horseplay" directed only, or more severely, toward one gender versus another. In Christopher, the Ninth Circuit Court made clear that even in traditional male-to-female sexual harassment cases the question is whether one gender is treated in an offensive and unwelcome manner that differs from how the other gender is treated, without regard to whether the conduct appears overtly sexual or gender related.

With regard to "equal opportunity harassers," the Court reminded us of its decision in Steiner v. Showboat Operating Co., 25 F.3d 1459 (9th Cir. 1994), that harassing conduct can be because of sex even when the harasser abused both men and women. In Steiner, however, the type of harassment suffered by the female employees was different as well as sexual - when addressing women, the alleged harasser used sexual epithets and offensive, explicit references to their bodies and sexual conduct. The Christopher Court broadened the analysis of seemingly "equal opportunity harassers" to include not only differences in the type or quantity of harassment suffered but also theeffect or impact the harassment had upon women. Moreover, as discussed above, the Court did not find important the fact that Harvey's alleged conduct was devoid of any sexual or gender specific overtones, unlike the conduct in Steiner.

The Christopher Court concluded that sufficient evidence existed for a jury to determine whether the female employees were subjected to objectively different levels of harassment and whether the women were affected differently than the male employees. The Court pointed out that at least one male employee testified that Harvey treated him fairly well and that no evidence suggested that the male employees reacted as severely as the female employees when confronted by Harvey. Indeed, unlike the male employees, the female employees testified that they cried, felt panicked and threatened, avoided contact with Harvey, called the police, and ultimately resigned their employment because of the alleged conduct. The Court determined that this difference in effect was entirely relevant to determining whether the plaintiffs had proven a violation of Title VII.

For employers, the Christopher decision is significant because it reminds us of just how broad the concept of "sexual" harassment has become. The decision underscores why employer's policies against harassment should prohibit all forms of harassment without regard to whether the conduct is sufficient to constitute an actionable Title VII claim. As we train employees and supervisors and investigate and analyze complaints of harassment, we need to keep the lessons of Christopher,Steiner and Oncale in mind: (1) harassment does not have to be sexual in nature or even explicitly gender-related; (2) equal opportunity harassment is not acceptable and will not be a reliable defense inasmuch as it is likely to always impact one gender differently than another; and (3) the real issue in deciding whether Title VII has been violated is whether one gender is being subjected to disadvantageous terms or conditions of employment to which members of the other gender are not exposed.

The full decision of the Ninth Circuit Court in Christopher v. National Education Association, Alaska is available at:

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