Privacy, Business and Law

A former clerk, Vanessa Bailey, with the United States Postal Service brought an action against the Postmaster General, alleging sex, race, and disability discrimination in violation of Title VII and the Rehabilitation Act. Bailey v. Henderson, No. Civ-A. 98-02224 (HKK) WL 488466 at *1 (D.D.C. Apr. 20, 2000).

Ms. Bailey based her discrimination and harassment claims, in part, on the actions and conduct of two female co-workers. Specifically, Ms. Bailey alleged that the two female co-workers taunted her by constantly referring to her as a “bitch” or “toilet-paper wipe” and crudely accusing Bailey of being sexually promiscuous. On one occasion, one of the women followed Bailey into the women’s rest room and cursed at her as she used the facilities.

The Postal Service argued that Bailey failed to present evidence upon which a jury could find in her favor on her claim of sexual harassment because, argued the Postal Service, the alleged remarks were not overtly sexual in nature. As primary support for its position, the Postal Service cited to Galloway v. General Motors Service Parts. In Galloway a female employee claimed that her employer failed to protect her from sexual harassment by a co-worker with whom she had previously had a romantic relationship. The co-worker had repeatedly called her a “sick bitch” and made other similarly inappropriate remarks. The Seventh Circuit affirmed the grant of summary judgment in the defendant’s favor, concluding that the language was, in context, not a sex or gender related term.

The Court in Bailey found this argument without merit and defendant’s reliance on Galloway misplaced. The Court explained that while an element of a Title VII sexual harassment claim is that the offending conduct be “based on sex,” there is no requirement that a defendant demonstrate the “motives” of her antagonists or that the conduct to which she was subjected was “sexual or romantic come-ons.” The Court pointed out that a similar argument, that only conduct of a sexual nature can be the basis of a sexual harassment claim, had been considered and rejected by several courts, including the Court of Appeals in the D.C Circuit:

We have never held that sexual harassment or other unequal treatment of an employee or group of employees that occurs because of the sex of an employee must, to be illegal under Title VII, take the form of sexual advances or of other incidents with clearly sexual overtones. And we decline to do so now. Rather, we hold that any harassment or other unequal treatment of an employee or group of employees that would not occur but for the sex of the employee or employees, if sufficiently patterned or pervasive, comprises an illegal condition of employment under Title VII. McKinney v. Dole, 765 F. 2d 1129 (D.C. Cir. 1985). (Emphasis added.)

In the case at bar, the Court of Appeals held that in context, the references to Bailey as a “bitch” and Bailey’s co-workers statements that she was “giving it up” as well as her second-line supervisor’s statement to her direct supervisor that he should not intervene because Bailey and the two co-workers were “just some black women going through menopause,” provided a basis for a reasonable juror to find that the conduct about which Bailey complained was directed at her because of her gender. In other words, sex harassment need not involve “sex” so long as it is “gender”-based harassment.

While it is tempting, as an employer, to dismiss claims of alleged harassment between same-sex workers as “horseplay,” this decision makes clear that employers must be sensitive and responsive to all complaints of harassment, regardless of the gender of those involved.