Metropolitan News-Enterprise


Tuesday, September 6, 2005


Page 1


Ninth Circuit Shifts Standard for Showing Sexual Harassment


By KENNETH OFGANG, Staff Writer/Appellate Courts


Harassing conduct directed at female employees may violate federal law, based on circumstantial evidence that male and female employees were treated differently, even in the absence of direct evidence that the harassing conduct or the intent that produced it was because of sex, the Ninth U.S. Circuit Court of Appeals ruled Friday.

A panel reinstated a suit brought on behalf of three employees of the National Education Association’s Alaska affiliate, alleging that all three were subjected to a hostile working environment and that one of them was constructively discharged.

Senior Judge Alfred T. Goodwin, writing for the appellate court, said there was evidence that Carol Christopher, Julie Bhend and Carmela Chamara were subjected to “frequent, profane, and often public” tirades on the part of Thomas Harvey, on whose staff they worked in the union’s Anchorage office.

Christopher resigned in 2000, after five years with the union, and is claiming constructive discharge. Bhend has worked for the union since 1993; Chamara was employed by the union from 1997 to 2000 and attributes her resignation to Harvey’s conduct, but is not alleging constructive discharge.

Women’s Testimony

The women testified that Harvey frequently yelled at them for no reason and occasionally made intimidating physical gestures, such as grabbing Bhend’s shoulders and telling her to go back to her office when she was conversing with a local union president, and pumping his fist at employees on several occasions, including one on which Chamara said she felt threatened and called the police.

Other witnesses, including male employees, confirmed those accounts.

U.S. District Judge James K. Singleton, who has since taken senior status, granted summary judgment in favor of NEA-Alaska on the ground that a reasonable trier of fact could not find that the alleged harassment was “because...of sex” within the meaning of Title VII of the Civil Rights Act of 1964.

But Goodwin, in his opinion Friday, said there was sufficient evidence to enable a trier of fact to infer that Harvey treated the men and women in the office differently by creating what one male employee testified was “general fear” on the part of the women.

“[A] pattern of abuse in the workplace directed at women, whether or not it is motivated by ëlust’ or by a desire to drive women out of the organization, can violate Title VII,” the judge wrote. “Indeed, this 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. There is no logical reason why such a motive is any less because of sex than a motive involving sexual frustration, desire, or simply a motive to exclude or expel women from the workplace.”

It is “at least a debatable question,” the judge went on to say, whether male and female employees were treated in an objectively different way.

‘Illustrative Incident’

He cited testimony by Christopher regarding “an illustrative incident,” as Goodwin termed it, in which Harvey yelled and swore at her for missing an e-mail regarding a meeting after she took an extra day off over a holiday weekend to care for her dying sister in California.

In contrast, Christopher testified, “all the men take days off there to go fishing and hunting and that’s okay. He knows my sister is dying. He knows how heavy my heart is, and he can [make a profane remark about her missing a day]?”

There was also testimony that while Harvey did publicly criticize male workers within the office, he was far less aggressive about it than he was with the women and showed a greater willingness to resolve matters amicably with the men.

NEA’s evidence in support of its contention that male and female employees were treated in a similar manner, Goodwin said, including testimony regarding a single incident in which Harvey loudly accused a man of insubordination, shows a conflict that must be resolved by trial, not summary judgment.

Citing cases from the Seventh and Eighth Circuits, Goodwin declared:

“At least two other circuits have held, as we now do, that an unbalanced distribution of men and women in relevant employment positions, and the fact that some men were also harassed, does not automatically defeat a showing of differential treatment.”

He added:

 “To hold otherwise would allow the accident of a mostly female workplace to insulate even a culpable employer from liability. The precise determination of how much qualitative and quantitative difference in treatment is enough circumstantial evidence to support a Title VII claim is a question for the jury. We leave open the possibility that in some cases, the quantitative comparison between male and female employees as classes will reveal differences too slight to survive summary judgment. In this case, however, summary judgment was not appropriate.”

The opinion was joined by Senior Judge Melvin Brunetti and Judge William Fletcher.

The case is Equal Employment Opportunity Commission v. National Education Association, Alaska, 04-35029.


Copyright 2005, Metropolitan News Company