Three female employees had longstanding problems with their…
Three female employees had longstanding problems with their boss, Mr. Harvey, resulting in the resignation of two of them. It was claimed that Mr. Harvey had a penchant for shouting in a loud, hostile, and frequently profane manner at female employees, and that his verbal assaults were often accompanied by hostile physical conduct, such as lunging across tables or shaking his fists. The police were called after one such incident. Male employees confirmed Harvey’s behavior, and claimed that it was directed at them also. In a lawsuit filed by these female employees, the district court granted summary judgment to the defendants, because it believed that “a reasonable trier of fact could not find that the alleged harassment was ‘because of . . . sex’ ). The trial judge granted summary judgment because Harvey’s behavior was not, on its face, sex- or gender-related; in other words, it was facially neutral. There had been no testimony stating that Harvey had made sexual overtures or lewd comments, nor that he referred to women employees in gender-specific terms. Plaintiffs appealed. What decision should the appellate court make? Can a facially neutral action or policy amount to sexual harassment? Support your answer with the legal arguments learned from the text and the article, “Because of Sex” After Oncale: SHOULD DIFFERENCES IN SUBJECTIVE EFFECTS BE CONSIDERED RELEVANT TO DETERMINE WHETHER MEN AND WOMEN ARE TREATED DIFFERENTLY IN THE WORKPLACE?