Sexual Harassment Standard Shifts

SAN FRANCISCO – The umbrella covering sexual harassment got a little wider this week, following a recent ruling by the 9th U.S. Circuit Court of Appeals that sexual harassment can be proven even if the harassing in question wasn’t motivated by sex.

The decision stems from a lawsuit brought on by three Alaskan employees of the National Education Association in 2001. The suit alleged Carol Christopher, Julie Bhend and Carmela Chamara endured repeated verbal and physical abuse from Thomas Harvey, then the union's assistant executive director in Alaska and now its executive director in the state.

Originally, a federal judge in Alaska rejected the sexual harassment claims, saying there was no evidence that Harvey acted out of bias against women.

But Senior Judge Alfred T. Goodwin, writing for the appellate court, said there was evidence that the women were subjected to “frequent, profane, and often public” tirades, enough to infer that Harvey treated men and women differently, and creating what one male employee testified was “general fear” on the part of the women. Evidence included testimony from various staff members who said Harvey often yelled at the women and made threatening physical gestures, including grabbing their shoulders and shaking his fists at them.

Two of the women have since resigned, attributing their resignations to Harvey.

“This will potentially be a highly beneficial ruling for people filing harassment claims,” attorney John Stiller, an expert in gender discrimination suits, told XBiz. “It’s basically saying that the effects of harassment are more important than the reasons behind it.”

Goodwin said the final decision in such matters should be left to a jury, sending the case, Christopher v. National Education Association No. 04-35029, back to the U.S. District Court for the District of Alaska, which originally dismissed the suit.

“Abuse in the workplace directed at women, whether or not it is motivated by ‘lust’ or by a desire to drive women out of the organization, can violate Title VII of the Civil Rights Act of 1964,” Goodwin wrote. “Offensive conduct that is not sex-specific nonetheless may violate Title VII if there is sufficient circumstantial evidence of differences in the harassment suffered by female and male employees.”

A retrial date has not been set.