The Fourth Circuit Undercuts the “Equal Opportunity Jerk” Defense

Posted by marykeating on July 1, 2010 under sexual harassment | Be the First to Comment

The Fourth Circuit Court of Appeals just sent back a sexual harassment case for trial. The sole owner of a medical practice made frequent sexual jokes and remarks, to both men and women alike, and to his employees, patients and vendors. A female doctor was so distressed by his behavior that she quit, and the EEOC sued on her behalf. The medical practice defended first on the basis that the owner “was a generally crude person who made vulgar comments to men and women alike.” This defense is sometimes successful, since a sexual harassment case requires a showing that the harasser’s behavior is so outrageous that it becomes a form of sexual discrimination. When someone is rude and crude to men and women equally, the employer can escape liability because both men and women are treated equally poorly. The Fourth Circuit noted that this doctor made comments to both sexes, but his comments were intended to demean women. In addition, he made “explicit or implicit proposals of sexual activity directly to the female doctor.

The Court spent more analysis on whether the harassment was severe enough to earn court intervention. Courts are skittish about acting as workplace civility police, and do not get involved with “general crudity.” The incidents at the medical practice were more than “a handful of isolated” events, though, and crossed the line into a “series of sexually graphic and unmistakably personal remarks that made her work environment intensely uncomfortable.”

The opinion leaves open a big gray area in which some crude remarks and pictures, and some (but not a lot) of sexual comments, are still legal. But decisions like this one, that require a jury to decide the extent of outrageous versus acceptable workplace behavior, represent a step forward.