Does Harassment of Everyone Mean Harassment of No One? The Challenges of Investigating “Equal Opportunity Harassers”

Introduction

Imagine that a group of male and female employees collectively complain about sexually graphic music blasting throughout the warehouse. Management considers the music “motivational” and wants to continue playing it. HR starts investigating but quickly dismisses the possibility that playing music for everyone to hear could constitute gender-based harassment or discrimination, given that both women and men have complained.

If HR’s investigation stops there, it risks oversimplifying the “equal opportunity harasser” paradigm. A thorough investigation should evaluate the quality, quantity, and context of the conduct—even if it initially does not appear to target a particular gender. A case with these very facts came before the Ninth Circuit in Sharp v. S&S Activewear, LLC, reminding us that the legal consequences of “equal opportunity harassment” are easy to overlook.

This article provides an overview of the legal landscape, along with practical tips and insights on how to evaluate “equal opportunity harassment” before that conduct inspires a lawsuit.

Legal Landscape

Under Title VII, it is an unlawful employment practice to harass or discriminate “because of” an individual’s sex.¹ But what if the harassment or discrimination affects both men and women in the workplace—is it still “because of sex?”

In theory, the “equal opportunity harasser” defense allows perpetrators who harass both male and female employees to evade liability because their conduct is not because of sex.² While some federal circuits have adopted this defense,³ others, including the Ninth Circuit, have rejected the “equal opportunity harasser” defense as a per se bar to bringing a Title VII claim.⁴

Three decades ago, in Steiner v. Showboat Operating Company, the Ninth Circuit held that harassing both males and females does not automatically absolve the perpetrator; rather, both sexes involved can have viable claims for sexual harassment.⁵ Now, 30 years post-Steiner, the Ninth Circuit has cemented its position.

In Sharp v. S&S Activewear, LLC, seven female employees and one male employee filed a Title VII hostile work environment claim alleging that their employer allowed managers to play “sexually graphic, violently misogynistic” music throughout its warehouse. The lower court accepted the employer’s “equal opportunity harasser” defense and dismissed the case, reasoning that the music affected both genders and targeted neither. Citing Steiner, the Ninth Circuit reversed this decision, emphasizing that “offensiveness to multiple genders is not a certain bar to stating a Title VII claim.”⁶

Does this mean the “equal opportunity harasser” defense is dead? Only to the extent that discriminating against both men and women, or directing harassing conduct toward men and women alike, does not absolve the employer of liability. But the analysis does not end there. The facts underlying the alleged “equal opportunity harassment” matter when evaluating whether harassment was “because of sex.” If the behavior targeted a specific sex and/or disadvantageously impacted a specific sex, then employees of the affected sex may prevail. If neither scenario applies, the employer may escape liability.

How Does This Affect Workplace Investigations?

After assessing whether the conduct actually occurred, an investigator should evaluate whether the behavior (1) targeted a specific group and/or (2) disadvantageously affected the terms and conditions of employment of a specific group.

To that end, investigators should explore the quality, quantity, and context of the harassment, all of which can bear on whether conduct was “because of sex.” Certain language or conduct in the workplace may affect men and women differently and offend different sexes in unique, meaningful ways. Further, the fluidity of gender, gender identity, sex, and sexual orientation in today’s modern workplace can add even more nuances to these scenarios. Thus, investigators should consider what is offensive and hostile to a reasonable complainant.

Evaluating Quality, Quantity, and Context

1. Quality

Investigators should think critically about whether the nature of the harassment—the quality of the conduct—was inherently different toward a certain sex or impacted that group differently. For example, in Steiner v. Showboat, the supervisor’s language toward women included offensive, explicit references to female bodies and sexual conduct (e.g., calling them dumb “broads” or “c*nts,” suggesting they have sex with customers, and referencing their “boobs”), whereas the language used with men did not implicate their gender (e.g., calling them “assholes”).

The court concluded that the quality of the conduct was appreciably different and more severe toward women than men. On top of that, even if the supervisor used sexual epithets equal in intensity and in an equally degrading manner against male employees, he could not thereby “cure” his conduct toward women because that conduct could be “differently received” by women.⁷

2. Quantity

Investigators should not only assess differences in the severity of the conduct itself, but also differences in quantity or frequency. For example, in E.E.O.C. v. National Education Association, Alaska, three female employees claimed that a male supervisor harassed them with repeated yelling and physical intimidation. The employer claimed the supervisor subjected both males and females to the same treatment, but he just happened to have more regular contact with female employees than male employees, so any differential effect on women was merely incidental.

The court concluded that an unbalanced distribution of men and women in relevant job positions, and the fact that some men also were harassed, does not automatically defeat a showing of differential treatment. Rather, a trier of fact would have to compare the relative frequency of the conduct toward males versus females, along with its severity, to decide if those differences sufficiently support a sex-based harassment claim.⁸

3. Context

Finally, an investigator should also explore the broader context of the conduct. Imagine a situation like Steiner, but instead, the gender-specific derogatory language (e.g., “c*nt”) is used with everyone, rather than just women. In this case, the investigator needs to think about other contextual factors. In doing so, the investigator may learn that although the gender-specific profanities were directed at everyone, employees also tuned into a crude morning show that spoke offensively about women and that one employee had displayed a pornographic image of a woman on his computer screen.

Such was the case in Reeves v. C.H. Robinson Worldwide, Incorporated. There, the Eleventh Circuit explained that while the sexually laden conversation targeted everyone, the radio show and pornographic pictures provided context “sufficient to afford the inference that the offending conduct was based on the sex of the employee.” The court reversed the lower court’s acceptance of the “equal opportunity harasser” defense, noting a jury could reasonably find that the workplace “exposed Reeves to disadvantageous terms or conditions of employment to which members of the other sex were not exposed.”⁹

Typical Scenarios and Illustrative Examples

Investigators evaluating “equal opportunity harassment” cases will likely find themselves dealing with one of the following four scenarios:

1. The conduct at issue targets a specific sex.

Imagine female employees claim their male supervisor uses abrasive language in providing performance feedback. The supervisor says he also used such language in male employees’ reviews and did not single out women. Beyond the obvious step of reviewing performance evaluations, the investigator should interview that supervisor’s direct reports, who may reveal that the supervisor only used gender-based derogatory words with women (e.g., “bitchy”) but did not use these terms with men.

Had the employer in Sharp investigated more carefully, it may have uncovered more context clues. For example, if male supervisors shouted, “Ladies, this one is for you!” during the opening notes of a sexual song, that circumstantial evidence would tend to suggest the conduct actually did target females over males, even though employees of both sexes heard the same music.

2. The conduct does not target a specific sex but ends up disadvantageously affecting a specific sex.

The E.E.O.C. v. National Education Association, Alaska case (discussed above) described a scenario where a male director’s aggressive yelling and physically intimidating conduct, while directed at both men and women, affected one group differently.

In comparing the females’ reactions to males’, the court took care to note, “there is no evidence in the record that any male employee manifested anywhere near the same severity of reactions (e.g., crying, feeling panicked and physically threatened, avoiding contact with [the director], avoiding submitting overtime hours for fear of angering [the director], calling the police, and ultimately resigning) to [the director’s] conduct as many of the female employees have reported.”¹⁰

Thus, even if the director did not intend to target women, a reasonable jury might still find that his universally abusive behavior was discriminatory because it more severely impacted women than men.

3. The conduct does not target a specific sex and does not disadvantageously affect a specific sex.

Picture a female assistant claiming that three male comedy writers’ use of vulgar language in the writers’ room constituted harassment based on sex. Witness interviews reveal that both male and female staff in the writers’ room heard this vulgar language, and some female writers also engaged in this type of conversation to generate material for the show. The language was not directed at anyone in particular, but rather was part of the creative process. The investigator also learns that, prior to joining the team, employees were forewarned this type of conversation could occur when preparing jokes for the script.

This exact scenario played out in Lyle v. Warner Bros. Television Productions, and the court concluded that nondirected sexual antics in the writers’ room did not contribute to an environment in which women and men were treated disparately.¹¹

4. The conduct does not target a specific sex but disadvantageously affects both sexes.

In some cases, the misconduct may not target a specific sex, but it could still disadvantageously affect both sexes. As the Ninth Circuit pointed out in Steiner, harassing everyone does not cure bad conduct—rather, both sexes impacted can have viable harassment claims. Take the Sharp fact pattern, where a male employee complained alongside his female co-workers about the vulgar music. An investigator may unearth facts showing the male employee was uniquely targeted or affected as well (perhaps because of his sexual orientation, gender identity, or religion).

Imagine a version of the E.E.O.C. v. National Education Association, Alaska scenario in which the male director’s aggressive yelling and physical intimidation also included calling everyone “gay” or “f*ggot.” On top of the court’s finding that the aggression more severely impacted women and therefore constituted differential treatment of women based on sex, a gay male may have his own claim for harassment based on sex, given that the director’s universal reference to sexuality happened to impact the gay male more negatively than straight males.¹² In this case, even though the conduct was comparatively more severe toward females overall, both sexes were disadvantageously affected and have viable harassment claims.¹³

Conclusion

As the “equal opportunity harasser” paradigm continues to evolve, practitioners should keep in mind the various nuances of such claims. Because distinctions in the quality, quantity, and context of certain behavior can completely change the nature of an “equal opportunity harassment” claim, practitioners should take a holistic approach when litigating or investigating these cases. As for employers: tread cautiously when faced with “equal opportunity harassers.” Supposed “fairness” in harassment does no one any favors.