The Ninth Circuit Court of Appeals recently ruled that the repeated use of gender specific epithets (e.g. “b*tch”) against a female employee could constitute unlawful harassment because of sex.
In Ochs v. Eugene Emeralds Baseball Club, (9th Cir., May 30, 2019), a female employee sued her employer after she was called a “b*itch” by her supervisor on several occasions and a “f*cking b*tch” and “c*nt” on one occasion. According to the employee, the supervisor’s repeated and aggressive use of such words occurred over the course of three years.
In addressing whether such conduct constituted unlawful workplace harassment, the court explained that although gender-based epithets may not satisfy the “because of sex” factor in all contexts, a jury could find that the supervisor’s repeated and aggressive use of such words was because of her sex in this particular case. In addition, the court also concluded that a jury could find that the supervisor’s conduct was objectively severe or pervasive enough to alter the conditions of her employment and create an abusive working environment.
Finally, the court noted that the female employee could also reasonably perceive her work environment as abusive based on evidence that she informed her supervisor that his conduct was disrespectful, complained about his conduct to others, and felt she was being undermined by her supervisor. Based on all of the foregoing, the court ruled that the employee presented evidence that a reasonable jury could find constituted unlawful workplace harassment because of her sex.
Employer Takeaways:
- Slurs or epithets that are sexually-charged can give rise to a claim for unlawful sexual harassment;
- As a reminder, any words or phrases that relate to other protected classes (such as race, religion or sexual orientation) can similarly create a cause of action for unlawful workplace harassment. See e.g. McGinest v. GTW Service Corp., 360 F.3d 1103 (9th 2004) (the use of the N-word is highly offensive and demeaning, evoking a history of racial violence, brutality, and subordination.)
A copy of the court’s (unpublished) opinion can be viewed here: Ochs v. Eugene Emeralds Baseball Club.