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A Federal Appeals Court Ruling
Expands Sexual Harassment Definition
Sept. 2, 2005
Expands Sexual Harassment Definition
Sept. 2, 2005
Text from the decision in this sexual discrimination case -- all direct quotes, no WBTI editorial or emphasis
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Argued and Submitted
July 11, 2005 -- Anchorage, Alaska
Filed September 2, 2005
EEOC and CAROL CHRISTOPHER; JULIE BHEND; CARMELA CHAMARA,
Plaintiffs-Intervenors- Appellants
No. 04-35029 D.C. No. CV-01-00225-JKS
v.
NATIONAL EDUCATION ASSOCIATION, Alaska; and NATIONAL EDUCATION ASSOCIATION,
Defendants-Appellants.
Argued and Submitted
July 11, 2005 -- Anchorage, Alaska
Filed September 2, 2005
EEOC and CAROL CHRISTOPHER; JULIE BHEND; CARMELA CHAMARA,
Plaintiffs-Intervenors- Appellants
No. 04-35029 D.C. No. CV-01-00225-JKS
v.
NATIONAL EDUCATION ASSOCIATION, Alaska; and NATIONAL EDUCATION ASSOCIATION,
Defendants-Appellants.
This case illustrates an alternative motivational theory in which an abusive bully takes advantage of a traditionally female workplace because he is more comfortable when bullying women than when bullying men.
Harvey was NEA, Alaska (state teachers union) Executive Director.
The record reveals numerous episodes of Harvey shouting in a loud and hostile manner at female employees. The shout- ing was frequent, profane, and often public. The record shows little or no provocation for these episodes. Christopher described an illustrative incident:
- I had a sister who was dying in California . . . [we] were all taking turns going to take care of her, and be there just in case she died, so I asked for -- I went over Labor Day weekend so I wouldn't get in trouble, so I had the legitimate days off, and then I think I took an extra day . . . and when I got back, we had a meeting at the get go, right in the morning, we had a meeting, and Tom came in and said, so how's your sister? And I said, not very good at all. And I said, do I need to bring anything to this meet- ing, Tom? And he said, if you would have read your fucking e-mail, you would have known, but, no, you were out of town, so we've lost a day there. And again I just went, my sister is dying. I was with a sister who's dying, and he's saying that to me? Like people take days off -- all the men take days off there to go fishing and hunting and that's okay. He knows my sister is dying. He knows how heavy my heart is, and he can say that? It was -- so it was so astonishing and so cruel at the same time, I just again just started crying and I left the room. (emphasis added).
Harvey's verbal conduct also had a hostile physical accompaniment. Christopher testified that Harvey regularly came up behind her silently as she was working, stood over her, and watched her for no apparent reason. Bhend testified that at an evaluation meeting where Harvey accused her of taking breaks with Christopher and another employee in order to talk behind his back, Harvey "lung[ed] across the table" at her and shook his fist at her. She also testified that on another occasion when she was comforting a local union president about an unrelated matter, Harvey came up behind her, grabbed her shoulders, and yelled "get back to your office." Chamara testified that in one instance, Harvey "pump[ed] his fist in [her] direction, trying to make a point, as was his custom. Stepping toward me to make the -- make the point. I stepped back. I told him that he was being physically threatening." She went so far as to call the police and file a report on one occasion, on her therapist's advice that she document physical threats. The physical manifestation of Harvey's anger was also confirmed by other witnesses, including male employees. For example, Jeff Cloutier, another UniServ director, testified to Harvey's regular invasion of Christopher's and Bhend's "personal space."
Harvey's behavior clearly intimidated female employees. For example, Bhend testified that Harvey's behavior at her evaluation meeting put her in a "state of panic," and that she "felt that [she] was in jeopardy." She also testified that after that incident, she felt "physically threatened most of the time" on the job whenever Harvey was at the workplace. Indeed, Bhend went so far as to omit submission of a number of her overtime hours because she "was too scared of Mr. Harvey to turn them in to him." Like Bhend and Christopher, Chamara also testified that the impacts of the incidents with Harvey were not isolated, but created a general atmosphere of intimidation in the workplace that was "like working with a ticking time bomb because you're sitting by and you're waiting for your turn to be next." Jeff Cloutier testified, without prompting, to the "general fear of the women at our office."