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Vulgar Language Must Be Viewed in Context in Sexual Harassment Case: Court

July 27, 2012
Related Topics: ERP, Harassment, Termination, Latest News
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Pejorative terms do not automatically establish sexual harassment, but they do need to be viewed in context, says a U.S. appellate court.

However, in Kimberly Passananti vs. Cook County, there was sufficient evidence to establish harassment based on the intended use of the word "bitch," the 7th U.S. Circuit Court of Appeals wrote in its July 20 ruling, which partially overturned a district court ruling in the case.

According to the ruling, Passananti was a deputy director of the Cook County Sheriff's Department's Day Reporting Center, an intensive supervisory program that provided services for nonviolent pretrial defendants. After losing her job, Passananti sued in 2007, claiming the DRC director, John Sullivan, had subjected her to sexual harassment and fired her because of her sex. Passananti said Sullivan had called her a "bitch" on "numerous occasions" over a "progressive period of time."

A jury awarded Passananti $4.2 million in damages, including $4 million in compensatory damages against Cook County, $70,000 in compensatory damages and $30,000 in punitive damages against Sullivan. The district court judge subsequently set aside the verdict.

"The district court ruled that Passananti's sexual harassment claim failed because no rational jury could conclude that Sullivan's language and conduct were directed at Passananti because she was a woman. The district judge considered Sullivan's statements to be 'vulgar, rude and ungentlemanly,' but without additional proof, not sexist," the appellate ruling said.

Unlike an earlier decision in a separate case made by the appellate court, however, "there was no contextual evidence here that undermined the reasonable interpretation, that Sullivan's repeated and hostile use of 'bitch' to address and demean Passananti was based on her sex," the ruling said.

"No additional proof was necessary to allow a jury to find that Sullivan used the word 'bitch' in a gender-specific term and that its impact was to degrade women in general and Passananti in particular," the unanimous three-judge panel wrote in overruling the district court judge on the issue of sexual harassment. "Our precedents have made clear that the use of the word in the workplace must be viewed in context."

The appellate court agreed with the district court's dismissal of Passananti's wrongful termination claim, however.

Because of the way in which the case was pleaded, the appellate court upheld dismissal of all but $70,000 in compensatory damages. It said she could pursue obtaining attorneys' fees and costs from the sheriff's department.

Commenting on the ruling, Paul W. Mollica, a plaintiffs attorney who is of counsel at Outten & Golden L.L.P. in Chicago and was not involved in the case, said the ruling "clears away some of the misunderstanding" that had existed as to whether terms such as "bitch" can indicate sexual harassment.

It said while the word itself could be used in a way that is not sexual harassment, in this case, where a women is being singled out by her supervisor "repeatedly and in a way that clearly separates her from male employees, that's a whole different thing."

Amy Moor Gaylord, a defense attorney with Franczek Radelet P.C. in Chicago, who was not involved in the case, said in cases where off-color language is used, the ruling signifies the importance of finding out "how that language was used to determine what steps the employer should take and how they should go about investigating" it and imposing discipline.

"You can't just look at a statement in a vacuum. You need to look at it in context," she said.

Judy Greenwald writes for Business Insurance, a sister publication of Workforce Management. To comment, email editors@workforce.com.

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