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II. JUDICIAL UPDATE In EEOC v. National Education Association, the Ninth Circuit Court of Appeals confirmed that an employer may not avoid liability for sexual harassment when the harassing conduct is directed primarily toward women, even though it is not “sexual” in nature. Here, a supervisor verbally abused female workers, making them feel physically threatened and emotionally distraught. His shouting at women was described as “frequent, profane, and often public,” and occurred with little or no provocation. While there were occasional episodes of similar behavior directed toward male employees, such episodes neither happened as frequently nor had the same effect on the men. In ruling that the female employees could move forward with their Title VII harassment claims, the Ninth Circuit Court of Appeals held that evidence of the difference in the manner in which the behavior affects women and men, along with evidence of differences in objective quality and quantity of the harassing behavior, is “relevant to determining whether or not men and women were treated differently, even where the conduct is not facially sex- or gender-specific.” The court added that “[a] few instances of hostile behavior toward male employees . . . do not erase the possibility that a reasonable jury might find that the pattern of abuse directed at female employees was discriminatory.” It is unlawful to retaliate against any employee for engaging in protected activity, and the filing of a lawsuit is a protected activity under the FEHA. Therefore, the effort to pressure the Employee into dropping his lawsuit was risky. An employee, however, must also show that he suffered as a result of the retaliatory conduct.
If you would like to discuss these or any
other employment law matters, please do not hesitate to contact any member
of Klinedinst's Employment Law
Department.
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