Gender neutral behavior can be sexual harassment
Published 09/16/05

 An employer who allows a manager to bully and subject his subordinates to angry outbursts could be liable for sexual harassment even if the manager's conduct is gender neutral.

This possibility was illustrated in the September 2, 2005 Ninth Circuit Federal Court of Appeal's decision of EEOC v. National Education Association Alaska . In that case, the Equal Employment Opportunity Commission brought a claim against NEA-Alaska for violations of federal harassment discrimination law, Title VII of the Civil Rights Act of 1964.

The NEA-Alaska is a labor union that represents teachers and other public school employees. In this case, three female employees had filed EEOC charges against NEA-Alaska because of the alleged abusive conduct of Thomas Harvey who was the Assistant Executive Director. The issue that the Court of Appeals had to decide was whether or not the trial court was correct in allowing NEA-Alaska to summarily win without allowing the EEOC and the three female employees to present their claims to a jury.

The Court of Appeals found that the trial court made an error and therefore ordered the case to proceed with a jury trial.

The claims arose out of Harvey's alleged bullying his subordinates and angry outbursts in which he would swear and yell at employees, shake his fists in their direction, and generally intimidate them. While he allegedly intimidated at least one male subordinate, his actions were generally more directed at female subordinates and had a more severe impact on them.

The trial court found that in order for there to be a sexual harassment claim, it required a showing that the behavior Harvey was accused of be of a sexual nature or motivated by a sexual animus. The trial court readily acknowledged that the EEOC and the three employees presented substantial evidence that Harvey is rude, overbearing, obnoxious, loud, vulgar, and generally unpleasant, but nonetheless, there was no evidence that any of the exchanges between Harvey and the three employees were motivated by lust or by a sexual animus towards women as women.

Therefore, the trial court found that this conduct was not discriminatory. The Court of Appeals disagreed stating that the sexual harassment law was aimed at the consequences or the effects of the employment practices and not the motivation of coworkers or employers.

The Court further noted that that case illustrated an alternative motivational theory for sexual harassment in which an abusive bully takes advantage of a traditionally female workplace because he is more comfortable when bullying women than when bullying men. The Court further noted the evidence of differences in the subjective effects of a bully's abusive conduct to subordinates between men and women is relevant in determining whether or not men and women were treated differently even where the conduct is not facially sex or gender specific.

Therefore if a bully's intimidating conduct negatively affects his female subordinates more than his male subordinates the Court stated this may be evidence of illegal sexual harassment.

This decision does not create any legal precedent for New Hampshire employers or employees but does emphasize that allowing bullying of subordinates is not only obviously a bad business practice; it may also subject the employer to a host of legal claims from the subordinate victims.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

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