Labor & Employment Developments Blog

Every now and then, I encounter an argument in the context of a harassment claim that inappropriate comments were not directed toward the complaining party but were made for all to hear.  The argument goes that if the comments were offensive, they were offensive to all and therefore not actionable.  This is sometimes referred to as the “equal opportunity jerk” defense.  Obviously this is a risky defense, especially when one considers the putative testimony of the alleged bad actor, “I’m not a chauvinist/bigot, I offend everybody.” 

A new decision from the Eleventh Circuit, underscores a flaw in the “equal opportunity jerk” defense.  In Reeves v. C.H. Robinson Worldwide Inc., the Court unanimously rejected the employer’s “equal opportunity” arguments, e.g. that the daily vulgar comments in the workplace were not directed at the Plaintiff, pre-dated her employment and included general vulgarity in addition to sex based comments.  The Court reasoned:

If the environment portrayed by Reeves at C.H. Robinson had just involved a generally vulgar workplace whose indiscriminate insults and sexually-laden conversation did not focus on the gender of the victim, we would face a very different case. However, a substantial portion of the words and conduct alleged in this case may reasonably be read as gender-specific, derogatory, and humiliating.  This evidence . . .  is sufficient to afford the inference that the offending conduct was based on the sex of the employee.

A jury reasonably could find on this record that a meaningful portion of the allegedly offensive conduct in the office contributed to conditions that were humiliating and degrading to women on account of their gender, and therefore may have created a discriminatorily abusive working environment.

Thus, the “equal opportunity jerk” defense remains viable provided that the vulgar comments are truly gender neutral.  If the comments are gender-specific, they can support a claim even if they are not directed at the plaintiff.  If you require specific examples, read the opinion.  On a broader level, think long and hard before relying on the “equal opportunity jerk” defense.  Technical legal arguments have their place and the lower court did grant summary judgment in this case.  However, it is also true that cases with bad facts often end badly.