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Sexual harassment without sexual conduct
September 06, 2005 by Ross Runkel at LawMemo
Most sexual harassment cases involve conduct that is sexual.
Question: What if the conduct on its face is not sex-related or gender-related, with no sexual overtures, and no gender-specific words?
The 9th Circuit has held that conduct can be sexual harassment within the meaning of Title VII even though there is nothing "sexual" about the conduct. Christopher v. National Education Assoc (9th Cir 09/02/2005).
The court put it this way:
While sex- or gender-specific content is one way to establish discriminatory harassment, it is not the only way: “direct comparative evidence about how the alleged harasser treated members of both sexes” is always an available evidentiary route. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80-81 (1998). The ultimate question in either event 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. at 80 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993)).
My view: The decision is correct.
- Title VII does not focus on harassment and does not focus on sexuality. It's focus is on discrimination. Here, specifically discrimination because of sex.
- "Because of sex" means because of gender, usually because of the gender of the person being harassed.
- So the key is whether one gender is being treated differently than the other gender.
- My favorite hypothetical from teaching a law school class on employment discrimination - the stink-bomb:
The supervisor puts a stink-bomb in an employee's desk. (Assume this is sufficiently "severe" (big stink-bomb) and pervasive (happens every day).) The Title VII question is "why?" Was it because of the employee's sex, race, national origin, religion? If so, then it violates Title VII. Racial harassment need not involve the use of racial slurs; religious harassment need not involve the use of religious words; sexual harassment need not involve anything that one would consider "sexual."
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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