On January 20, 2010, the Eleventh Circuit issued an en banc decision ruling that, “a plaintiff can prove a hostile work environment by showing severe or pervasive discrimination directed against her protected group, even if she herself is not individually singled out in the offensive conduct.”  The unanimous ruling came in a rehearing and affirmation of an earlier 3-judge panel which overturned the district court’s grant of the employer’s motion for summary judgment in Reeves v. C.H. Robinson Worldwide, Inc..

Reeves, the only female employee on the sales floor of a shipping company was confronted with such extreme vulgarities that the Eleventh Circuit’s opinion contains a disclaimer that “we do not explicate this vulgar language lightly, but only because its full consideration is essential to measure whether these words and this conduct could be read has having created ‘an environment that a reasonable person would find hostile and abusive.’”  In addition to offensive language, Reeves also observed her co-workers discussing the anatomy of another female employee and witnessed a co-worker viewing pornography on his computer.  Reeves attempted unsuccessfully to resolve the issues with her co-workers, middle, and senior management and at one point was told, “better wear your earplugs tomorrow.”  Reeves resigned and filed a Title VII complaint in the U.S. District Court for the Northern District of Alabama. 

Examining the record, the Eleventh Circuit found “a substantial corpus of gender-derogatory language addressed specifically to women as a group in the workplace.”  The court applied a disparate treatment analysis and isolated the issue to whether “the conduct alleged. . . created a hostile work environment that ‘exposed [Revees] to disadvantageous terms or conditions of employment to which members of the other sex [were] not exposed.’”  The court distinguished between general and indiscriminate vulgarities and references to sex from repetitive “comments addressed to the plaintiff’s ‘target area’,” which the court said may constitute actionable harassment. The court next addressed the employer’s inaction, finding their complacency to be the same as an affirmative authorization of the conduct and thus an intent to discriminate.  The court also rejected the employer’s argument that it lacked intent since the same behavior took place before Reeves was hired. 

In an important win for victims of harassment and discrimination, the Eleventh Circuit declared that insults aimed “at a protected group may give rise to the inference of an intent to discriminate on the basis of sex, even when those insults are not directed at the individual employee.”  Accordingly, a “jury could reasonably find. . . the alleged offensive conduct in the office contributed to conditions that were humiliating and degrading to women on account of their gender,” creating a hostile environment.  Also of note, the court observed that insulting a man by comparing him to a woman could be taken as humiliating to women as a group as well.

This decision affirms the right of employees not to suffer conditions in the work place that are disparately humiliating, abusive, or degrading.  The Employment Law Group® has developed a practice committed to protecting the rights of employees.  For information on The Employment Law Group® law firm’s Sexual Harassment Practice, click here.

On January 5, 2010, United States District Court Judge Bernice B. Donald denied, on all counts, defendant Hilton Hotels’ motion for summary judgment of state and federal claims of discrimination and retaliation, allowing Kumar v. Hilton Hotels Corp. to proceed to trial.  Mr. Manoj Kumar, an Indian native and former information technology department employee, alleges that he was denied a promotion due to alienage, retaliated against, and ultimately terminated in violation of Title VII of the Civil Rights Act, Section 1981, and the Tennessee Human Rights Act. 

Also included in Mr. Kumar’s complaint are allegations that he was told to start a business selling statues of a Hindu god and ridiculed over his accent.  After attempting to assert his rights, Mr. Kumar was retaliated against and ultimately terminated.  Hilton Hotels claims that the adverse employment actions suffered by Mr. Kumar were related to performance and in no way related to his national origin or alienage.  They also claim that continued poor performance and behavioral issues were to blame for his termination and not his engagement in the protected behavior of asserting his rights.  Finding that genuine issues of material fact exist surrounding all claims, Judge Donald appropriately denied the motion on all counts.  Importantly, Judge Donald also found direct evidence of alienage discrimination, prohibiting summary judgment from being granted.  A copy of the opinion is available here.  A jury trial is scheduled to begin January 19, 2010.

Mr. Kumar is represented by Adam Augustine Carter and R. Scott Oswald, Principals at The Employment Law Group® law firm.  For more information on the firm’s Discrimination Law Practice, click here.