When vulgar language in the workplace is sexual harassment

Lexology.com
Loeb & Loeb LLP
Michael P. Zweig USA April 21 2010

Federal law prohibits employers from discriminating in the workplace on the basis of an individual’s race, color, religion, sex or national origin. Claims for sexual harassment in the workplace are often based on a “hostile work environment,” resulting from vulgar language and conduct directed at the claimant. At the same time, vulgar language is not always actionable as sexual harassment. As one court stated, “Title VII is not a civility code, and not all profane or sexual language or conduct will constitute discrimination” in the workplace.
A federal appeals court, in Reeves v. C.H. Robinson Worldwide, Inc., recently addressed the question of whether vulgar language, even if not directed specifically at the plaintiff, could be actionable as sexual harassment. The plaintiff was one of only two women working at a shipping company in Birmingham, Alabama. She claimed that her male co-workers used vulgar language on a daily basis, and did not refrain from using such language even after she complained to her co-workers and her manager. Most of the language was “general, indiscriminate vulgarity” but some was gender-specific, although none of the language was specifically directed at the plaintiff.
The Reeves court stated that sexual language and discussions that are truly indiscriminate do not establish sexual harassment and that the context of the offending words or conduct is essential to the analysis. In Reeves, while much of the vulgar language used in the plaintiff’s office was general and indiscriminate, a substantial portion of the vulgar and profane words were gender-specific, such as offensive words referring to women’s anatomy and promiscuity. The court noted that such gender-specific words and conduct could lead to liability for sexual harassment, even if the words were not directed specifically at the plaintiff.

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