posted on Saturday, October 01, 2005 12:26 AM
by
Rod Satterwhite
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Equal Opportunity Harassment
The Seventh Circuit just ruled that a husband and wife could both sue the same employer for sexual harassment under Title VII of the Civil Rights Act of 1964. In Venezia v. Gottlieb Memorial Hospital, (No. 04-1976), a married couple sued their employer – a hospital – for hostile environment harassment. Both claimed they were subjected to inappropriate comments and material at work from some of the same people. While there were some differences in the exact way the two were treated, there was substantial overlap regarding how they were allegedly harassed and who was harassing them.
The issue, of course, is whether this behavior could possibly have been “because of” gender when both the husband and wife were subjected to it. The court said yes, concluding that it’s possible that the husband was harassed by some people because he was male and the wife was harassed by other people because she is female.
To me, this is a stretch. There’s no question this behavior was offensive, but even a brief review of the facts indicates that the same group – the husband’s co-workers – was engaging in nearly identical behavior because they thought the wife pulled strings to get the husband his job. So, they teased them both – asserting that the wife had engaged in sex with the boss in order to secure her husband a job.
To be illegal under Title VII, harassment has to be because of the victim's gender. There’s certainly enough of a common nexus here of behaviors to allow the defendant to argue that this was not based on the gender of either employee. When a male and a female are treated the same, it’s not gender discrimination. Here the husband and wife were both treated badly. While the behavior was reprehensible, it wasn’t illegal.