Jottings By An Employer's Lawyer

Saturday, October 02, 2004

"Equal Offender Discriminator" Defense Suffers Another Defeat

Numerous discrimination cases arise out of workplaces dominated by one gender, usually male, and the 2nd Circuit uses one such case to make clear that merely because both sexes are exposed to the same sexual banter does not necessarily mean that there can not be a hostile environment claim on the basis of sex. Petrosino v. Bell Atlantic (2nd Cir. 9/29/04) [pdf]. Petrosino worked as installation and repair technician for Bell Atlantic and would report with her all male coworkers each morning to a company garage for their daily assignments.

The trial court found that while there were "incessant sexually offensive exchanges at the daily assignment meeting and omnipresent sexual graffiti in the terminal boxes" which was "undeniably boorish and offensive" it could not be the basis for a hostile environment gender claim because it "was not motivated by hostility to Petrosino because of her sex." A finding fueled in large part because of the court's conclusion that the same conduct would have occurred even if Petrosino had not been there. (A no doubt accurate finding that probably says as much about male culture as anything else.) The Circuit Court dispatched with that finding, holding instead, "the mere fact that men and women are both exposed to the same offensive circumstances on the job site, however, does not mean that, as a matter of law, their work conditions are necessarily equally harsh."

The Court explained:
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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