Learn more about the Labor and Employment Group at Schiff Hardin. Attorneys In This Practice Eric L. Barnum Howard R. Barron Wendi J. Berkowitz Max G. Brittain Jr. Lisa Carey-Davis William J. Carroll Ashley G. Eddy Nicole Finitzo Larry B. Garrett Stephen M. Hankins Victoria Hartanto Valarie Hays Charlene Q. Kalebic Paula M. Ketcham Matthew D. Lahey Neil Lloyd Catherine M. Masters Ralph A. Morris Marc L. Silverman Henry W. Sledz Jr. Patricia Costello Slovak Julie Furer Stahr Kathleen A. Stimeling Catherine H. Thompson Richard L. Verkler Nora Kersten Walsh Tamera M. Woodard Schiff Hardin Offices One Atlantic Center, Suite 2300 1201 West Peachtree Atlanta, GA 30309 225 Franklin Street, Suite 2600  Boston, MA 02110  233 S Wacker Drive Suite 6600 Chicago, IL 60606 One Westminster Place Suite 200 Lake Forest, IL 60045 900 Third Avenue New York, NY 10022 One Market, Spear Street Tower 32nd Floor San Francisco, CA 94105 1666 K Street, NW Suite 300 Washington, DC 20006 - - - - - - - - - Join our mailing list. Forward this alert to a friend or colleague.

Schiff Hardin Labor and Employment Alert

Employers Take Heed: Sticks & Stones May Break Bones, But Words Alone Can Hurt You

By Keisha M. Oldacre and Eric L. Barnum

Warning: The following article contains language that may be offensive. We recite the language as it was discussed in the 11th Circuit Court of Appeals opinion which is the subject of this article

In a unanimous decision, the 11th Circuit Court of Appeals in Reeves v. C.H. Robinson Worldwide, Inc., 07-10270 (Jan. 20, 2010), held that the use of derogatory words in the workplace — even when not directed toward a specific individual — can serve as the basis for a Title VII sexual harassment claim. The decision departs from many of the 11th Circuit's previous decisions holding that only derogatory comments directed toward a particular individual and/or accompanied by a touching would be actionable.

Plaintiff Ingrid Reeves worked as a sales representative at the shipping company, C.H. Robinson. As the only female employee on a cubicle-arranged sales floor, Reeves alleges that she was subjected to hearing her co-workers call other women names such as "b***h," "wh**e," and "c**t" on a daily basis. She also alleged that her co-workers often tuned the office radio to a crude morning show and that one co-worker displayed a pornographic image of a naked woman on his computer screen. Reeves complained to her co-workers, her supervisor, and top company executives, but the offensive conduct did not stop. Reeves brought suit, and initially lost, in the District Court for the Northern District of Alabama. The District Court held that Reeves could not prove the conduct was motivated by her sex, because it was not directed toward her in particular.

On appeal, the 11th Circuit Court of Appeals reversed and remanded the case for a jury to decide whether C.H. Robinson's workplace constituted a hostile work environment. The court reiterated that an employer subjects itself to a claim of sexual harassment when it creates a "hostile work environment" that exposes an individual to disadvantageous terms or conditions of employment to which members of the other sex are not exposed. The court explained that "general vulgarity" and non-discriminatory references to sex will not, by themselves, give rise to a sexual harassment claim; however, gender-specific words and conduct that are either severe or frequent may state a hostile work environment claim, even if not directed specifically at a particular individual. Further, the court warned that if an employer knows about and tolerates offensive words and conduct, it may be viewed as having adopted and authorized the behavior. The Reeves case is significant for employers doing business in the 11th Circuit. The case represents a decided shift toward an employee-friendly view of hostile work environment claims in a Circuit traditionally known for its staunch protection of employers' rights.

In light of the court's ruling, employers should review and, if necessary, revise their sexual harassment policies to prohibit altogether the use of offensive language and conduct in the workplace. Employers should also regularly train management and employees on sexual harassment as well as other forms of discriminatory conduct and harassment. Additionally, to help ensure that individuals are complying with sexual harassment policies, employers should consider implementing procedures for disciplining employees who use derogatory language or otherwise engage in offensive conduct, whether or not directed at a specific individual. Be advised that some states may impose specific requirements on employers regarding non-discrimination training.

Schiff Hardin's Labor and Employment Practice Group has particular expertise in designing non-discrimination policies and in advising clients on anti-harassment and non-discrimination training for employees and management. If you have any questions about preventing or handling discrimination in your workplace, or if you have questions about state-specific requirements, please contact any attorney in Schiff Hardin's Labor and Employment Group.

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