A federal appeals court panel of three (3) judges has issued an opinion that may make it more difficult for plaintiffs to prevail in sexual harassment cases against their employers in federal courts in Georgia, Alabama and Florida.

The sexual harassment case involved allegations of sexually inappropriate and harassing conduct by Leonard Cavaluzzi, a Regional Human Resources manager for Home Depot in Jacksonville, Florida. Plaintiffs David Corbitt, a Home Depot store manager in Mobile, Alabama and Alexander Raya, a Store Manager in Pensacola, Florida, claimed in their lawsuit that Cavaluzzi began making inappropriate sexual overtures to them within a month of being transferred to their region in March, 2005.

As set forth in court papers, Corbitt claimed that Cavaluzzi made sexual statements in regular telephone calls that started out as business-related but became increasingly personal. Corbitt alleged that Cavaluzzi said he “could not stop thinking about” Corbitt, called Corbitt “small” and “cute,” and said he liked Corbitt’s “baby face” and dark tan. Cavaluzzi allegedly asked Corbitt if he wore “boxers or briefs or nothing,” whether he shaved his body, and if he colored his hair, remarking on what color Corbitt’s hair must be “down there, too.” Corbitt says Cavaluzzi told him he knew Corbitt was not gay but he would “like it.”

Raya claimed that in telephone calls Cavaluzzi would ask what he was wearing and if he wanted to meet for drinks. Cavaluzzi allegedly told Raya that Raya “always dressed so nice,” was “cute,” and had beautiful hair. He purportedly told Raya he liked his green eyes and said “you’re the Italian heifer that I like.”

The plaintiffs asserted that during in-person meetings Cavaluzzi massaged their necks and shoulders, played with their hair and hugged them in front of other managers. Corbitt contended that in one incident he was working in a store training room when Cavaluzzi put one of his hands on Corbitt’s shoulder and rubbed Corbitt’s stomach with the other hand. Raya testified that at a Pensacola store grand opening Cavaluzzi gave him a hug during which Cavaluzzi’s body was touching Raya’s “privates.” Raya alleged that in another incident Cavaluzzi put his arm around Raya’s shoulders while putting his hand on Raya’s leg under a table where they were seated.

In December 2005, after the plaintiffs reportedly complained to various Home Depot managers about Cavaluzzi’s actions, they were fired from their jobs. The company says the harassment stopped as soon as the plaintiffs formally complained, and Corbitt and Raya were terminated for violating company policy related to discounting, not in retaliation for complaining about sexual harassment.

Corbitt and Raya filed suit against Home Depot in the Southern District of Alabama. Chief U.S. District Judge Callie Granade denied the company’s request for summary judgment (dismissal) as to some of their claims—negligent training, supervision and retention—and the parties settled those claims. But the district judge granted Home Depot’s summary judgment request as to the plaintiffs’ claims of sexual harassment, retaliation for complaining about harassment and state law torts of assault and battery, outrage and invasion of privacy. The plaintiffs appealed the part of the ruling which dismissed some of their legal claims to the federal 11th Circuit Court of Appeals in Atlanta.

In July, 2009 a three (3) member panel of the 11^th Circuit Court of Appeals issued its ruling that the plaintiffs’ claims of retaliation should survive Home Depot’s motion for summary judgment (dismissal) and should be decided by a jury. But the panel divided over the sexual harassment claims and some of the state law claims, and the majority dismissed the sexual harassment claims.  The majority held that the plaintiffs did not have a viable sexual harassment claim against Home Depot despite evidence that, among other things, their manager made comments suggesting that he was sexually attracted to them and touched them in arguably inappropriate ways.

After nearly five months went by, with no party filing a motion for rehearing by the panel or full court, the court issued a new majority opinion. The outcome was the same, but Judge Charles R. Wilson revised some aspects of the portion of the majority opinion dealing with the sexual harassment claims. In the July, 2009 opinion, Judge Wilson had emphasized that many of the instances of which the plaintiffs complained were not sexual in nature. In the December, 2009 opinion, in contrast, he said the majority was assuming for purposes of argument that much of the conduct was sexual, but he wrote that a number of the complained-of incidents involved what many would consider innocent behavior that was not offensive to a reasonable person.

“For example,” Wilson wrote, “Cavaluzzi telling Raya that he liked how Raya dressed may not be appropriate workplace conversation, but under most circumstances it is not highly objectionable. Similarly, Cavaluzzi’s comment that he liked the way Corbitt dressed could best be characterized as a compliment. That Corbitt and Raya may have subjectively interpreted these comments as sexually offensive does not change the analysis under the objective component.” “Flirtation is part of ordinary socializing in the workplace” and doesn’t constitute discrimination, continued Wilson. “Although the [plaintiffs] may be subjectively more uncomfortable because a presumably gay man made the flirtatious comments,” he wrote, “this does not factor into the objective component of the analysis.”

Senior U.S. District Judge Patricia C. Fawsett of Orlando, Florida dissented from the majority opinion. In her dissent, she noted that the other two (2) judges on the three (3) member panel (Judges Wilson and Cox), failed to allow claims over the sort of conduct that reasonable people have come to expect they will be protected from in the workplace. Judge Fawsett stressed that context matters in sexual harassment cases, and individual comments by a sexual harasser cannot be viewed in isolation separate and apart from evidence of other inappropriate and harassing comments and actions. In other words, all of the comments and actions must be considered in concert, not separately and individually.  Judge Fawsett wrote that a jury, not judges, should be allowed to review and interpret all of the facts collectively and should determine whether someone was sexually harassed at work.

“The conduct in this case goes well beyond ‘ordinary socializing in the workplace,’” wrote Judge Fawsett. “The [plaintiffs] found Cavaluzzi’s conduct offensive, and several of their peers in management testified that they found the conduct to be offensive. While the law utilizes an objective standard to evaluate hostile work environment claims, this standard is justifiable only if it accurately reflects real-life workplace conditions and expectations. When the objective ‘reasonable person’ standard becomes so divorced from reality that a reasonable person can be unreasonably subjected to discriminatory conduct under the case law, the courts cease to give effect to the statutory language and the remedial purpose of Title VII.”

The plaintiffs’ lawyer, Edward Hawkins of Mobile, Alabama, said the panel’s decision effectively does away with sexual harassment cases in Florida, Georgia and Alabama under federal law. Recounting the various incidents alleged by his clients, Hawkins concluded, “if that’s not harassment, what is? It’s just about going to take a rape” to prevail on a claim of sexual harassment against an employer.

The effect of the panel’s decision on future cases remains to be seen. Without question, this decision will be relied on heavily by employers in their defense of sexual harassment claims by employees. It will be interesting to see whether at some point in the future the full 11^th Circuit Court of Appeals will address this issue further.

The case is Corbitt v. Home Depot U.S.A., No. 08-12199.

On January 20, 2010 the U.S. Court of Appeals for the 11^th Circuit (covering Georgia, Florida and Alabama) issued a landmark decision concerning sexual harassment in the workplace. At issue was whether the use of offensive “gender specific” words such as “bitch”, “cunt” and “whore” in the workplace could support a sexual harassment lawsuit. The court ruled that while not all profane or sexual language would be actionable, certain gender-specific words could be, even if they weren’t used explicitly in reference to the plaintiff. For plaintiff Ingrid Reeves, her victory means she will get to make her case to a jury.

Ingrid Reeves worked aboard container ships before she went to work for the Minnesota-based logistics company C.H. Robinson Worldwide from 2001 to 2004. Reeves contends that during her employment as a transportation sales representative at C.H. Robinson’s Birmingham, Alabama branch office she was subjected to hearing words such as “bitch” and “whore” on a daily basis.

Reeves claims that her co-workers used vulgar and offensive language to refer to or to insult individual females with whom they spoke on the phone or who worked in a separate area of the branch. Although not speaking to Reeves specifically, Reeves said that her male co-workers referred to individuals in the workplace as “bitch,” “fucking bitch,” “fucking whore,” “crack whore,” and “cunt.”

Reeves claims that a co-worker, Scott Gagliardi, frequently shouted the epithets “fucking bitch” or “fucking whore” after hanging up his phone. Reeves claims he also called one woman a “cunt.” Indeed, Reeves alleges that her supervisor, branch manager David Mitchell, often referred to his female colleagues by the term “bitch.” Among other examples offered, Mitchell allegedly ordered Reeves to speak with “that stupid bitch on line 4” and described a former female colleague, Jackie Burt, as a “lazy, good-for-nothing bitch.” On one occasion, Gagliardi allegedly ended a joke with the punch-line “fuck your sister, and your mother is a whore.”

There is no evidence that Reeves’ co-workers, all but one of them men, called her those names. Instead, Reeves complained about the use of such language more generally in conversation with her, such as when she was asked to “talk to that stupid bitch on line four.” Most of the language at issue was used in conversation she heard between co-workers or on the sometimes sexually charged local morning radio program favored by some of Reeves’ colleagues.  The program occasionally included discussions of subjects like women’s breast sizes and pornography. Reeves also complained that others regaled their co-workers with sexual jokes, talk of masturbation and their own sexual tales. She cited an instance in which she walked past the workstation of a co-worker and saw an image of a naked woman on his computer.

After several unsuccessful attempts to get management to do something about the offensive conduct, Reeves resigned from her position in March 2004 and filed a lawsuit against the company for hostile work environment sexual harassment. The lower court dismissed her claim, and Reeves appealed the ruling to the U.S. Court of Appeals. A three (3) member panel of the Court of Appeals reversed the lower court’s ruling in 2008. At the company’s request, the 11^th Circuit Court of Appeals agreed to a rare hearing before all 11 active judges on the court.

The full court found that Reeves had pointed to enough evidence of conduct which could support a hostile work environment sexual harassment claim. The terms “bitch,” “whore” and “cunt” were targeted at Reeves’ gender, wrote Judge Stanley Marcus, explaining that the latter was “the essence of a gender-specific slur.” So were the discussions of women’s breasts, nipples and buttocks, he said, as well as the pornographic image of a woman in the office. “It is enough to hear co-workers on a daily basis refer to female colleagues as ‘bitches,’ ‘whores’ and ‘cunts,’ to understand that they view women negatively, and in a humiliating or degrading way,” Judge Marcus wrote in Wednesday’s decision. “The harasser need not close the circle with reference to the plaintiff specifically: ‘and you are a “bitch,” too.’”

The court’s decision is groundbreaking in that it emphasizes that offensive words alone, without any objectionable touching or physical contact, can now form the basis of a sexual harassment case which can get before a jury. Prior to this decision, most cases in the 11th Circuit had required some form of objectionable touching or offensive physical contact to make out a hostile work environment sexual harassment claim.

The court’s opinion emphasized that the context in which offensive words are spoken matters, and that use of a given word doesn’t automatically create a viable Title VII action. For example, a frustrated employee blurting out “Son-of-a-bitch! They lost that truck,” wouldn’t be a reference to gender in the way that a co-worker’s reference to a female employee as a “bitch” would be. Similarly, the use of the word “fuck” may not itself support a sexual harassment claim, although it could be relevant in a given context, such as when it is used alongside a gender-based slur as an intensifying adjective like “that fucking bitch” or “that fucking cunt.”

The court explicitly rejected the company’s argument that because Reeves’ male co-workers had used gender-specific epithets before she arrived in the workplace, such language couldn’t be proof of gender bias. “That argument is inconsistent with the central premise of Title VII,” wrote Judge Marcus, saying ultimately the question was one of intent for a jury to decide.

The court also rejected the company’s argument that words such as “bitch” weren’t really gender-specific at all because they were used to refer to both men and women in Reeves’ workplace. Noting there may be a factual dispute on that point, Judge Marcus wrote that use of these words in reference to men doesn’t make them less degrading to women. “Calling a man a ‘bitch’ belittles him precisely because it belittles women,” wrote Marcus. “It implies that the male object of ridicule is a lesser man and feminine, and may not belong in the workplace. Indeed, it insults the man by comparing him to a woman, and, thereby, could be taken as humiliating to women as a group as well.”

Counsel for the plaintiff said that the part of the court’s opinion with which he was most pleased was that the court clearly rejected defense arguments that the use of gender-specific terms was not “based on” sex. (Under the Title VII sexual harassment law, an employee must show that the objectionable conduct was “based on” his or her gender/sex). “If it had come down the other way, it would have been very unhelpful to plaintiffs,” he said.

This case represents a significant departure from a recent trend of court decisions which favored employers and made pursuing sexual harassment claims much more difficult for employees. Under this decision, workplace sexual harassment claims must no longer involve offensive touching, groping or other objectionable physical conduct. Now, vulgar and offensive “gender specific” comments in and of themselves, may, depending on the context, form the basis of a sexual harassment claim that can actually get before a jury.  As such, employers who fail or refuse to address employees’ complaints of certain vulgar and offensive comments by co-workers now do so at their peril.

The case is Reeves v. C.H. Robinson Worldwide, No. 07-10270.