IS THERE A DIFFERENCE IN THE SEXUAL HARASSMENT STANDARD COURTS WILL IMPOSE IN BLUE COLLAR VERSUS WHITE COLLAR WORK ENVIRONMENTS?

Two federal court decisions diametrically state different positions on whether a blue collar work environment is held to a different standard than a white collar work environment in a sexual harassment case.  The United States Court of Appeals for the Tenth Circuit in Gross v. Burggraf Construction Company, 53 F. 3d 1531 (10th Cir. 1995), held that the evidence was to be evaluated in light of the blue collar work place, whereas, the United States Court of Appeals for the Sixth Circuit in Willams v. General Motors Corp., 187 F.3d 553 (6th Cir. 1999), ruled that the facts of the case, whether it be in either a blue collar or a white collar work place, are to be decided on the same basis.  Each case is discussed separately below:

GROSS v. BURGGRAF CONSTRUCTION COMPANY, 53 F. 3d 1531 (10th Cir. 1995).

FACTS:  

Plaintiff Patricia Gross worked as a water truck driver for Burggraf Construction Company, a road construction company.  George Anderson was her direct supervisor.  Ms. Gross contended the following acts supported her claim of gender discrimination:

1. Mr. Anderson referred to her as a "cunt".

2. After Mr. Anderson was unable to elicit a response from Ms. Gross over the CB radio, he made the following statement to another Burggraf employee: "Mark, sometimes, don't you just want to smash a woman in the face?"

3. On one occasion, as Ms. Gross left her truck, Mr. Anderson yelled at her: "What the hell are you doing? Get your ass back in the truck and don't you get out of it until I tell you."

4. Mr. Anderson referred to Ms. Gross as "dumb" and used profanity in reference to her.

5. Only two (2) women out of the forty (40) who worked under Mr. Anderson's supervision completed the 1990 construction season.

6. Mr. Anderson hired Ms. Gross solely to meet federal requirements against gender discrimination.

7. Mr. Anderson disliked women who were not between the ages of nineteen (19) and twenty-five (25) and who weighed more than 115 pounds.

8. Mr. Anderson approached Ms. Gross after work one day and offered to buy her a case of beer if she would tell another Burggraf employee to "go fuck himself."

9. Mr. Anderson warned Ms. Gross that if she ruined the transmission on her truck she would be fired.

10. Mr. Anderson threatened to retaliate against Ms. Gross because he had       heard that she was contemplating filing an Equal Employment Opportunity Commission claim. 

HOLDING BY COURT:

The Court held:

In determining whether Gross has established a viable Title VII claim, we must first examine her work environment. In the real world of construction work, profanity and vulgarity are not perceived as hostile or abusive. Indelicate forms of expression are accepted or endured as normal human behavior.

53 F. 3d at 1537.

The Court continued:

Accordingly, we must evaluate Gross' claim of gender discrimination in the context of a blue collar environment where crude language is commonly used by male and female employees. Speech that might be offensive or unacceptable in a prep school faculty meeting, or on the floor of Congress, is tolerated in other work environments.  We agree with the following comment by the district court in Rabidue v. Osceola Refining Co., 584 F. Supp. 419 (E.D. Mich. 1984), aff'd, 805 F.2d 611 (6th Cir. 1986), cert. denied, 481 U.S. 1041, 95 L. Ed. 2d 823, 107 S. Ct. 1983 (1987):

 The standard for determining sexual harassment would be different depending upon the work environment. Indeed, it cannot seriously be disputed that in some work environments, humor and language are rough hewn and vulgar. Sexual jokes, sexual conversations and girlie magazines may abound. Title VII was not meant to--or can--change this. It must never be forgotten that Title VII is the federal court mainstay in the struggle for equal employment opportunity for the female workers of America. But it is quite different to claim that Title VII was designed to bring about a magical transformation in the social mores of American workers.  Id. at 430. 

53 F. 3d at 1538.

WILLIAMS v. GENERAL MOTORS CORP., 187 F. 3d 553 (6th Cir. 1999).

FACTS:

Marilyn Williams worked in the tool crib at General Motors Corporation’s Delphi-Packard Plant in Warren, Ohio.  While working the midnight shift in the crib, Ms. Williams alleges that she was subjected to sexual harassment in the form of a hostile working environment.  As summarized by the Court, Ms. Williams alleged the following:

 1. Don Giovannoe, an hourly tool crib employee, constantly used the "F-word" as part of his vocabulary.

 2. In June of 1995, as Mr. Giovannoe approached the window at the counter of the tool crib, Ms. Williams heard him say, "Hey slut."

 3. In July of 1995, Pat Ryan, Ms. Williams general supervisor, while talking to Williams' co-worker, Dodie, looked at Ms. Williams' breasts and said something to the effect of, "You can rub up against me anytime."  He also said, "You would kill me, Marilyn. I don't know if I can handle it, but I'd die with a smile on my face." 

 4. A few days after the incident alleged in No. 3, Ms. Williams was bending over and Mr. Ryan came up behind her and said, "Back up; just back up," or "You can back right up to me," or words to that effect.

 5. On another occasion, in July of 1995, Ms. Williams was sitting at her desk writing the name "Hancock Furniture Company" on a piece of paper.  Mr. Ryan came up behind her, put his arm around her neck and leaned his face against hers, and said, "You left the dick out of the hand."

 6. Ms. Williams was forced to work the midnight shift when Steve Bivolesky retired, even though Mr. Giovannoe had originally agreed to take the job.

 7. In September of 1995, when Ms. Williams came in for her midnight shift, she discovered a box of tool crib release forms glued to the top of her desk.

 8. Later on the same day, she discovered the box glued to her desk. Ms. Williams claims to have heard Mr. Giovannoe say, "I'm sick and tired of these fucking women."  As Ms. Williams waited on people at the crib window, Mr. Giovannoe came over to the desk and threw a box on it.  Ms. Williams and Mr. Giovannoe got into a verbal altercation, ending with Mr. Giovannoe throwing another couple of boxes, the last of which grazed Ms. Williams' hip, but did not hurt her.

 9. Ms. Williams claims that she was denied overtime.

 10. Ms. Williams complained that she was the only person who did not have a key to the office.

 11. Ms. Williams stated that she was the only person denied a break.

 12. Ms. Williams was not allowed to sit at the table at the window of the crib, but had to go in the back instead. 

 13. One night when Ms. Williams came to work she found a buggy (a motorized  cart used to haul supplies) sitting on a wooden skid and blocking the other buggies.  She had to find a co-worker to help her move it.

 14. On one occasion a female hourly worker, Shalimar Kufchak, padlocked the crib's main entrance while Ms. Williams was inside.

 15. On a couple of occasions materials were stacked in front of the alternate exit, blocking access in and out. 

HOLDING OF THE COURT:

The Court ruled:

Of course, the fact that a district court should look at the totality of circumstances and the context of the alleged harassment does not mean that courts can point to long-standing or traditional hostility toward women to excuse hostile-work-environment harassment. At oral argument, Williams's attorney asked the court whether the conduct alleged in this case would be tolerated in our courthouses. We believe it would not, and we reject the view that the standard for sexual harassment varies depending on the work environment. Thus, we disagree with the Tenth Circuit decision in Gross v. Burggraf Const. Co., 53 F.3d 1531, 1538 (10th Cir. 1995), in which the court reasoned:

 We must evaluate Gross' claim of gender discrimination in the context of a blue collar environment where crude language is commonly used by male and female employees. Speech that might be offensive or unacceptable in a prep school faculty meeting, or on the floor of Congress, is tolerated in other work environments.

 We do not believe that a woman who chooses to work in the male-dominated trades relinquishes her right to be free from sexual harassment; indeed, we find this reasoning to be illogical, because it means that the more hostile the environment, and the more prevalent the sexism, the more difficult it is for a Title VII plaintiff to prove that sex-based conduct is sufficiently severe or pervasive to constitute a hostile work environment. Surely women working in the trades do not deserve less protection from the law than women working in a courthouse. 

 In addition, raising the standard for women in these professions -- in essence, requiring that they prove conduct that goes well beyond what is considered objectively hostile in other work environments -- is unnecessary, because the objective and subjective tests set forth in Harris sufficiently ‘prevent Title VII from expanding into a general civility code.’ Oncale, 118 S. Ct. at 1002. A hostile-work-environment plaintiff such as Williams must still establish that her environment was objectively hostile, and also that she subjectively perceived the environment to be hostile. See Harris, 510 U.S. at 21; Faragher, 118 S. Ct. at 2283. While ‘common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing . . . and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive,’ Oncale, 118 S. Ct. at 1003, judgments by the court as to a woman's assumption of risk upon entering a hostile environment are improper. 

 In sum, a work environment viewed as a whole may satisfy the legal definition of an abusive work environment, for purposes of a hostile environment claim, even though no single episode crosses the Title VII threshold. Williams's allegations, taken as a whole, raise a question whether Williams was subjected to more than ‘genuine but innocuous differences in the ways men and women routinely interact,’ Oncale, 118 S. Ct. at 1003, and therefore summary judgment was inappropriate. 

187 F. 3d 564-65.

COMMENTARY:

When there is a split in the United States Court of Appeal Circuits, eventually the United States Supreme Court will grant certiorari to settle the conflict between or among the Circuits for equality of Justice for all parties.  Currently there is no case pending before the United States Supreme Court to remedy the split in opinion between the Circuits.  Depending on the facts and circumstances as well as the particular circuit wherein the claim arises will determine which of the above standards will be employed by the court.