Two cases recently addressed by the federal appeals court for Georgia, Alabama, and Florida have drawn a fine distinction between language constituting sexual harassment and language found not to constitute actionable sexual harassment. Both cases involve comments of a sexual nature, with each case reaching a different result, highlighting the Eleventh Circuit's propensity to examine closely the lawfulness of sexual banter. As discussed below, the critical difference between these two cases lies in the pervasiveness of the extreme, sexually-charged use of profanity.
In Corbitt v. Home Depot U.S.A., Inc., two male former store managers filed suit against the national home improvement chain claiming that their male supervisor harassed them based on their sex. The plaintiffs, Corbitt and Raya, alleged that their supervisor, Cavaluzzi, made sexual comments to them over the phone and touched them in a sexual way. Examples of the alleged behavior included:
- Cavaluzzi told Corbitt he knew he was not gay, but Cavaluzzi could show Corbitt how, and he would "like it;" asked if Corbitt colored his hair and remarked that it must be Corbitt's "natural color down there too;" and told Corbitt to visit specific gay websites, saying Corbitt "should look at them" so Corbitt "could see what he is talking about."
- Cavaluzzi called Raya several times a week; asked what Raya was wearing and if he was wearing the pants that Cavaluzzi liked; asked whether Raya was happily married, remarked that Raya's hair was beautiful, and stated that he liked Raya's green eyes; and repeatedly asked Raya to meet him for drinks.
- Cavaluzzi massaged Corbitt's and Raya's necks and shoulders, made comments about their hair, played with their hair, and hugged Corbitt and Raya in front of other employees; Cavaluzzi sat down next to Raya and put his hand on Raya's thigh under the table; Cavaluzzi gave Raya a hug and pressed his whole body against Raya so that Cavaluzzi's body was touching Raya's "privates;" and "snuck up" behind Corbitt, put one of his hands on Corbitt's shoulder, and rubbed Corbitt's stomach with the other.
In this case, the court found that Cavaluzzi's conduct did not go so far as to create a hostile work environment because it was not sufficiently severe and pervasive. The court explained that, although some of the behavior was inappropriate for the workplace and may have caused the plaintiffs discomfort, it would not have been offensive to a reasonable person and involved many non-sexual comments and gestures. The court also noted, "Flirtation is part of ordinary socializing in the workplace."
On the other hand, a month after the Home Depot case, the court found other sexual banter to be actionable in Reeves v. C.H. Robinson Worldwide, Inc. In Reeves, the plaintiff claimed that her nearly all-male workplace was permeated with insulting, offensive, and profane comments targeting women (i.e., "bitch," "whore," the "f" word, and the "c" word). In addition, nearly every day, her male coworkers tuned the office radio to a crude program that featured discussions of women's anatomy. One male coworker also displayed a pornographic image of a woman on his work computer. Although the plaintiff admitted that none of the comments were made directly to her, the court denied summary judgment to the employer on her Title VII sexual harassment claim. This time, the court did not base its holding on the "severe and pervasive" element (as it did in Home Depot), but focused on whether the conduct in question was based on the plaintiff's sex. The court found ample evidence of gender-specific, derogatory comments made about women on account of their sex.
These opinions illustrate that, while there may be no bright-line test for determining whether conduct constitutes unlawful sexual harassment under Title VII, sexual banter of a profane and offensive nature is often found to be actionable in the Eleventh Circuit. Indeed, trial courts now may permit juries to decide sexual harassment claims more frequently as courts struggle to reconcile the Eleventh Circuit’s cases defining the boundary between ordinary teasing and flirtation in the workplace and illegal harassment. Both cases demonstrate that it is critical to maintain and distribute policies prohibiting harassment and discrimination based on sex and other protected categories as well as a comprehensive complaint procedure for employees. Although not all comments of a sexual nature are illegal, they are sure to come under close scrutiny by a court of law, and employers must adopt policies to insulate themselves from liability should an employee raise the issue of inappropriate sexual comments.