Jottings By An Employer's Lawyer |
Saturday, October 02, 2004
"Equal Offender Discriminator" Defense Suffers Another Defeat
The comments and graphics that permeated Petrosino’s work environment may have sexually ridiculed both men and women, but there is an important, though not surprising, distinction. The conduct at issue sexually ridiculed some men, but it also frequently touted the sexual exploits of others. In short, the insults were directed at certain men, not men as a group. By contrast, the depiction of women in the offensive jokes and graphics was uniformly sexually demeaning and communicated the message that women as a group were available for sexual exploitation by men. Such workplace disparagement of women, repeated day after day over the course of several years without supervisory intervention, stands as a serious impediment to any woman’s efforts to deal professionally with her male colleagues.The Court also noted that the debate was still open as to whether the perspective used in judging the comments was to be a reasonable person or a reasonable woman, or as one of their colleagues had suggested in an earlier opinion, at least a reasonable person informed of “how members of the protected class regard the challenged remarks or displays.” No need to decide here, since a person of either gender could find the "sexually offensive comments and graffiti here at issue more offensive to women than to men and, therefore, discriminatory based on sex." The line drawn by the district court would be much simpler to apply, but it is hard to fault the logic of the Circuit Court's explicatory paragraph.
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