When the Pig Is in the Barnyard, Not the Parlor: Should Courts Apply a "coarseness Factor" in Analyzing Blue-collar Hostile Work Environment Claims?

• Jurisdiction: United States,Federal
• Publication year: 2010
• Citation: Vol. 17 No. 3

When the Pig Is in the Barnyard, Not the Parlor: Should Courts Apply aA "Coarseness Factor" in Analyzing Blue-Collar Hostile Work Environment Claims?

Rebecca Brannan

Introduction

In property law, "[a]nything wrongfully done or permitted which injures or annoys another in the enjoyment of his legal rights" is an actionable nuisance.[1] The existence of an actionable nuisance can be situational: "A nuisance may be merely a right thing in the wrong place—like a pig in the parlor instead of the barnyard."[2]

Similarly, some courts view the employment law issue of hostile work environment as situational, with offensive, discriminatory behavior being tolerated as more of a "right thing" (at least in the sense of not being actionable) in blue-collar settings.[3] And as is axiomatic in property law,[4]sometimes relief is barred for a plaintiff who "came to the nuisance."[5]

This Note addresses the implications of taking a situational approach in considering the work setting's "coarseness factor"[6] to determine if an employment environment is hostile enough to violate Title VII.[7] Part I provides an overview of the development of "hostile work environment" as a cause of action under the statute. Part II examines how lower courts have used the coarseness factor in deciding hostile work environment cases in blue-collar settings.[8] Part III reviews Supreme Court hostile work environment decisions for guidance on the appropriateness of using the coarseness factor. Part IV analyzes the implications and advisability of applying the factor. Finally, this Note concludes that if the remedial goals of Title VII are to be achieved in blue-collar workplaces, courts should not apply the coarseness factor to hostile work environment claims.

I. Legal Foundations

A. Title VII

Congress enacted Title VII of the Civil Rights Act of 1964[9] to combat systemic problems of discrimination in employment.[10] The statute applies to all but the smallest employers.[11] Before its enactment, employers operated under the almost unfettered system, established at common law, of employment at will.[12] "Free from legal interference, employers could refuse to hire racial minorities, segregate the work-force, assign unpleasant work to women and racial minorities, and deny to them opportunities for advancement. They could pay discriminatory wage rates for equal work and arbitrarily demand differing levels of job performance."[13]

In contrast, federal law now provides that it is "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to . . . compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."[14] Title VII jurisprudence has evolved to encompass several broad theories of employment discrimination,[15] but it has also been honed within those broad categories to address distinctive problems.[16] The hostile or abusive work environment (operating as racial or sexual harassment, or less commonly, as national origin or religious harassment) is a subcategory of discrimination that is actively litigated.[17]

B. Role of the EEOC in Statutory Interpretation

The Executive Branch of the federal government has vested responsibility for the administration and enforcement of Title VII in the Equal Employment Opportunity Commission (EEOC).[18] The EEOC issues formal guidelines and less formal policy statements on Title VII interpretation and enforcement.[19] In 1980, the EEOC first issued guidelines on discrimination created by sexual harassment.[20]

These guidelines stipulate that this discrimination includes conduct that "has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment."[21] Though the principles appear under the banner of "sexual harassment," a footnote stipulates that they also apply to claims of race, color, religion, or national origin harassment.[22]

The Supreme Court has consistently factored the EEOC's guidelines into its decision-making on hostile work environment claims, and has relied on them as an authoritative source whenever they have been on point with the issue before the Court.[23] Technically, the EEOC is not entitled to the deference from courts that is outlined in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.[24] Nonetheless, the Supreme Court shows great respect for the EEOC's guidance on harassment principles.[25]

C. Development of Case Law

The first published judicial opinion to address the hostile work environment theory was Rogers v. EEOC,[26] a race and national origin case in the Fifth Circuit that predated the EEOC guidelines.[27] The Supreme Court first recognized the hostile work environment as a form of employment discrimination in a 1986 sexual harassment case,[28] Meritor Savings Bank v. Vinson.[29] Noting that lower courts had applied the hostile environment theory to racial harassment cases, the Court formally extended the theory to sexual harassment and asserted that "Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult."[30] Unlawful behavior is not limited to acts of economic harm or tangible discrimination, the Court stated, because the statute is designed to "‘strike at the entire spectrum of disparate treatment' . . . in employment."[31]

In 1993, the Court issued its opinion on Harris v. Forklift Systems, Inc.,[32] and further clarified the requirements and scope of a cause of action for hostile work environment.[33] The Court instructed lower courts to look at "all the circumstances" in these cases.[34] For example, while psychological harm to the employee is pertinent, it is not a requirement.[35] It is but one factor to consider, along with the following other factors: the frequency of the objectionable conduct; the severity of the conduct; whether the conduct involved physical threats or humiliation instead of milder speech; and whether the employee's work performance was affected by the objectionable conduct.[36]

Of the trilogy of hostile work environment employment cases that were heard by the Court in 1998,[37] Oncale v. Sundowner Offshore Services, Inc.[38] provided the most extensive new guidance on the actionability of hostile work environment claims.[39] Holding that same-sex harassment is actionable, the Supreme Court cautioned that Title VII is not to be turned into a "general civility code."[40] The Court called for "common sense" to be applied to hostile work environment claims, noting that "a constellation of surrounding circumstances, expectations, and relationships" come into play in these cases.[41]

II. Lower Courts' Use of the Coarseness Factor

A. Sixth Circuit: Rabidue; Recent Views

Under the doctrine of assumption of risk, a plaintiff may not recover for an injury received when the individual voluntarily exposed herself to a known and appreciated danger.[42] Use of assumption of risk as a defense in employment settings peaked during the Industrial Revolution.[43] Ignoring the unequal bargaining power between employers and employees, courts reasoned that because workers were not "forced" to take or to remain in any given job, those who accepted dangerous jobs and continued to work under dangerous conditions had assumed the risk of injury.[44]

One of the theories underlying Title VII is that the tolerance that powerless individuals develop to offensive working conditions should not be used to define acceptable workplace conduct toward them.[45] That someone might be "willing" to work with treacherous chemicals without protection, or for less than minimum wage, or for fifty hours a week with no overtime pay, does not justify those working conditions.[46] Safety and wage laws protect against those working conditions because the market, operating alone, does not.[47] Title VII protects employees in a similar manner.[48]

In a holding that tacitly approved an assumption of risk defense, the Sixth Circuit, in Rabidue v. Osceola Refining Co.,[49] affirmed the lower court's judgment for the employer on a sexually hostile work environment claim.[50] In this early, influential case, a supervisor at a petrochemical refinery in Michigan persistently referred to women as "whores," "cunt," "pussy," and "tits" in the workplace.[51] The posters and other images of nude and partially nude women that were on display embarrassed the plaintiff and the other women who worked at the refinery.[52] Management allowed the offensive language and displays in the workplace to the point that they became "a ‘fairly significant' part of the job environment."[53]

Of the plaintiff, the supervisor remarked, "All that bitch needs is a good lay."[54] Though this supervisor's superior gave him "a little fatherly advice" that being more of "an executive type person" would improve his career prospects, the company viewed his computer expertise as indispensable and did not dismiss or formally reprimand him.[55] Osceola's vice president acknowledged that he knew the women were "greatly disturbed" by this individual's language.[56] After a five-day bench trial, the district court concluded that the plaintiff's work difficulties were due to her own "temper and stubbornness," not the vulgar language and sex-oriented posters in the office.[57]

On appeal, the Sixth Circuit remarked that this was the first case the court of appeals had heard that dealt with "an alleged sexually discriminatory work environment which had not resulted in a tangible job detriment."[58] The court held that being offended at work is not enough; a plaintiff must be exposed to conditions that would "affect seriously the psychological well-being of [a] reasonable person under like circumstances."[59] The circuit court noted that the EEOC's approach to investigating sexual harassment claims is to look, case by case, at the...