Sexually offensive language need not be targeted at the plaintiff in order to support a claim of sexual harassment, according to a recent decision by the Fifth District Court of Appeals in Blizzard v. Appliance Direct, Inc. (Fla. 5th DCA, August 7, 2009).
The plaintiff in the case, Neina Blizzard, a former sales associate at an appliance store, alleged that the manager of the store, Jeff Rock, constantly talked about his sexual prowess, made lewd comments about female workers and customers, and would whinny like a horse when an attractive woman would come into the store. However, the comments were not directed at Blizzard, nor did he ever touch her or make any sexual advances toward her. In fact, Blizzard was under the impression that Rock did not like her at all. She did claim, however, that Rock would give preference to other women who were receptive to his management style. Blizzard either quit or was fired (there was a dispute on this point), and subsequently sued her employer, claiming sexual harrassment and retaliation.
A plaintiff in a sexual harassment case must prove that the harassment was "based on" her sex. The "knotty question" raised by Blizzard's harassment claim, according to the Fifth DCA, was whether harassment in the form of offensive language was “based on” Blizzard's sex, even when she was not the target of the language, and even though other employees were equally exposed to it. In answering that question in the affirmative, the court cited the decision by the United States Court of Appeals for the Fourth Circuit in Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir. 2001). In that case, the court held that racist comments by a white manager, including comments about the manager's own African-American wife, could support an African-American plaintiff's claim of racial harassment, even though the comments were not directed at him.
(Interestingly, in a footnote, the Fifth DCA noted that the Eleventh Circuit Court of Appeals (which covers Florida, Georgia and Alabama) reached a similar conclusion in Reeves v. C.H. Robinson Worldwide, Inc., 525 F.3d 1139, 1145 (11th Cir. 2008), reh'g en banc granted, vacated by 569 F.3d 1290 (11th Cir. 2009). In April of this year, however, the Eleventh Circuit vacated its opinion in order to consider the case en banc (i.e., by the whole court rather than a 3-member panel). Will the Eleventh Circuit reverse itself on this point? That seems unlikely. As noted by the Fourth Circuit in Spriggs, "whatever the contours of one's environment, they surely may exceed the individual dynamic between the complainant and his supervisor." In fact, Spriggs cites a 1982 Eleventh Circuit decision, Walker v. Ford Motor Co., 684 F.2d 1355, 1359 n.2 (11th Cir. 1982), for this proposition. In Walker, the court held that "[t]he fact that many of the epithets were not directed at [the plaintiff] is not determinative. The offensive language often was used in [his] presence.")
For Florida employers, the lesson of the Blizzard case is clear: Do not condone or tolerate sexually explict langugage or behavior, especially by supervisors, in the workplace. Whether the targets of such comments and behavior are offended may be irrelevant. "Bystander" employees who take offense may have viable claims against their employer.