When accused of sexual harassment, an employer or landlord sometimes tries to defend the claim by arguing that he treated male and female employees or tenants alike so no discrimination was involved, i.e., no one was treated differently “because of sex.” If this defense is a good one, then people could avoid liability under antidiscrimination laws by attempting to treat men in the same way they treat women and then argue that their sexual harassment of women was not “discriminatory.”
This defense poses a puzzle for antidiscrimination law. Some courts suggest that any difference in treatment of men and women is sufficient to show discrimination because of sex while others suggest that each case be considered on its own and the fact that one discriminates against one person does not mean they did not also discriminate against another person because of sex. A third approach is to reject the defense on pragmatic grounds; it seeks to justify discriminatory conduct by engaging in curative acts that, by themselves, would also be discriminatory.
The Ninth Circuit took both the second and the third approaches in a recent employment discrimination case, Sharp v. S&S Activewear, LLC, — F.4th —, 2023 WL 3857491 (9th Cir. June 7, 2023), involving music in the workplace that contained sexually demeaning content. The Ninth Circuit rejected the finding of the District Court that music played in the workplace that denigrated women could not constitute workplace harassment because “both men and women were offended by the work environment.” Instead, it held that the fact that conduct is offensive “to multiple genders is not a certain bar” to a claim of sex discrimination.
Explaining its ruling, the court stated that “sexually charged conduct may simultaneously offend different genders in unique and meaningful ways.” But it went beyond that to argue that “an employer cannot find a safe haven by embracing intolerable, harassing conduct that pervades the workplace.” That suggests that, even if men and women are affected in the same way by the conduct, sexual harassment of men is not a defense to sexual harassment of women. Citing its ruling in Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994), the court noted that “even if [the supervisor] used sexual epithets equal in intensity and in an equally degrading manner against male employees, he cannot thereby ‘cure’ his conduct toward women.” The Court concluded that “an employer cannot evade liability by cultivating a workplace that is broadly hostile and offensive.” The Court added:
“This same principle holds true in the context of race discrimination: We have held that a white coworker’s “use of racially charged words to goad both black and white employees makes his conduct more outrageous, not less so.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1118 (9th Cir. 2004 And, in Swinton v. Potomac Corp., 270 F.3d 794 (9th Circ. 2001), we emphasized that the Black plaintiff was not “required to prove that white employees were not subject to similar harassment.” 270 F.3d at 807. After all, allowing an employer to “escape liability because it equally harassed whites and blacks [or men and women] would give new meaning to equal opportunity.” Id. Rather than embrace such an absurd interpretation, we resolve that the music’s alleged offensiveness to both male and female employees is no obstacle to Sharp’s suit.”
The ruling is potentially relevant to cases under the Fair Housing Act with regard to landlords who engage in sexual harassment of both male and female tenants. At the same time, the housing context may not present the same opportunity for “facility-wide” harassment. However, if the harassment becomes known by other tenants, a claim for pervasive harassment may be something that could be proved. In the absence of harassment that is “pervasive,” the Ninth Circuit’s language may suggest that a landlord cannot immunize himself from liability for sexual harassment of a female tenant by also harassing a male tenant.