Bitch (n): 1) A lewd or immoral woman; or 2) a malicious, spiteful, or overbearing woman—sometimes used as a generalized term of abuse.
According to a recent survey, half of all employees swear on the job. Passananti v. Cook County (7th Cir. 7/20/12) answers the question of whether there exists a line between swearing as workplace banter and swearing as unlawful harassment.
After losing her job as a deputy director with the Cook County, Illinois, Sheriff's Department, Kimberly Passananti sued, claiming that her director had subjected her to sexual harassment by calling her a "bitch" on "numerous occasions" over a "progressive period of time." A jury awarded Passananti $4.2 million in damages, of which $70,000 was compensation for the sexual harassment. The trial court set aside the entire verdict. The 7th Circuit reinstated the verdict on the sexual harassment claim.
The court started its analysis of whether the use of the word "bitch" constitutes sex-based harassment by dismissing any argument that its common use has neutered the word:
We recognize that the use of the word "bitch" has become all too common in American society, and its use has permeated many workplaces. Common use, however, has not neutralized the word as a matter of law.
The court concluded that even though "bitch" is sexually based, its use must be examined in context to determine whether it constitutes harassment "because of sex."
We do not hold that use of the word "bitch" is harassment "because of sex" always and in every context … . [T]he use of the word in the workplace must be be viewed in context … . But we do reject the idea that a female plaintiff who has been subjected to repeated and hostile use of the word "bitch" must produce evidence beyond the word itself to allow a jury to infer that its use was derogatory towards women. The word is gender-specific, and it can reasonably be considered evidence of sexual harassment … .
Whether its use is sufficient evidence of actionable sexual harassment is, of course, another matter. As with so many other things, when gender-specific language is used in the workplace, these cases and others recognize that context is key. We must proceed with "[c]ommon sense, and an appropriate sensitivity" to that context to distinguish between general vulgarity and discriminatory conduct or language "which a reasonable person in the plaintiff's position would find severely hostile or abusive."
In other words, "bitch" is sufficiently gender-specific such that in most cases a jury should apply its common sense to determine whether the pejorative use of the word towards a female employee constitutes harassment because of sex.
In the day-to-day management of your employees, however, you should not get bogged down in legal minutia whether one employee calling another employee a "bitch" is actionable sexual harassment.
If an employee complains that he or she is being called vulgarities or other offensive names, you have only one option—investigate and take appropriate corrective action.
Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.
