Seventh Circuit Reaffirms that Use of Gender-Specific Term Does Not Automatically Constitute Harassment
July 25, 2012
Last week, the U.S. Court of Appeals for the Seventh Circuit affirmed earlier decisions holding that the use of gender-specific terms (e.g., “bitch”) in the workplace does not automatically constitute harassment. Instead, the use of such words in the workplace must be viewed in context—and only supports a sexual harassment claim if there is evidence that it was used in a hostile manner to demean someone based on, or because of, his or her sex.
In Passananti v. Cook County, Kimberly Passananti filed a hostile work environment and sexual harassment suit against her former employer, Cook County. Passananti alleged that during her employment, her supervisor repeatedly and angrily called her “bitch,” (often preceded by other words like “lying,” “stupid,” and “f---ing”) while yelling at her and belittling her in front of her co-workers. She also alleged that her supervisor trumped up charges against her by claiming that she tampered with an inmate’s urine, and falsely accused her of having sexual relations with another inmate.
The U.S. District Court for the Northern District of Illinois dismissed Passananti’s sexual harassment claim because it found that no rational jury could conclude that the supervisor’s language and conduct were directed at Passananti because she was a woman. The judge recognized the statements were “vulgar, rude, and ungentlemanly,” but held that without more, there was no evidence that they were sexist. In doing so, the judge relied on a line of Seventh Circuit cases holding that the mere use of a gender-specific pejorative term, does not, by itself, establish sexual harassment.
On review, the Seventh Circuit reversed the District Court’s ruling and concluded that a reasonable jury could find harassment based on the supervisor’s conduct and the context in which he called Passananti a “bitch.” Specifically, the facts as alleged, showed that her supervisor repeatedly used the term in a demeaning context—while yelling at her and angrily criticizing her in front of other employees. For example, he was overheard to demand, “what is that f---ing bitch doing in here this time?” and “you better instruct that F’n bitch to dress appropriately.” Similarly, when Passananti denied his accusation that she tampered with an inmate’s urine, he screamed at her to “shut the ‘F’ up, you lying ‘B’.” Because the supervisor allegedly used the term in an evidently hostile and demeaning manner, the Seventh Circuit held that these facts, by themselves, supported Passananti’s sexual harassment claim.
Importantly, however, the Seventh Circuit reaffirmed previous cases which found that the repeated use of “bitch” in the workplace does not automatically constitute sexual harassment. The court recognized that although “bitch” is an inherently gendered term, it does not necessarily mean that the word is being used to target someone because of his or her gender. Consequently, context is everything.
For employers, this case signifies the importance of investigating the context of any alleged verbal harassment. The speaker’s demeanor, intent, manner of delivery, tone, and the surrounding context determine whether the use of a gender-specific term supports a claim for sexual harassment.