Jottings By An Employer's Lawyer

Wednesday, February 02, 2005

A Handful of Gender-Neutral Harassment and A Pinch of Gender-Based Harassment And What Do You Have?

A trial, according to the 10th Circuit. In a lawsuit brought by several female employees of the New Mexico Boys' School, the 10th Circuit affirmed the summary judgment on most claims, but salvaged a portion of the sexual harassment claims of some of the plaintiffs. It found itself faced with the following question, "[Can] Plaintiffs use a substantial amount of arguably gender-neutral harassment to bolster a smaller amount of gender-based conduct in opposing summary judgment? And the answer:

Our precedents say that they can. "Facially neutral abusive conduct can support a finding of gender animus sufficient to sustain a hostile work environment claim when that conduct is viewed in the context of other, overtly gender-discriminatory conduct." O'Shea, 185 F.3d at 1097. This is because what is important in a hostile environment claim is the environment, and gender-neutral harassment makes up an important part of the relevant work environment. Conduct that appears gender-neutral in isolation may in fact be gender-based, but may appear so only when viewed in the context of other gender-based behavior.

Chavez v. State of New Mexico (2/2/05) [pdf]. Reading the opinion gives you several examples of how what someone no doubt thought was "cute behavior" in the workplace, sounds much more sinister in the context of the court room.

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