What’s In A Word? Seventh Circuit Determines That the Word “Bitch” May Constitute Title VII Sexual Harassment, Though Context Is Key

Contributed by Carly Zuba

It goes without saying that employers should be strictly prohibiting name-calling in the workplace – such behavior undermines employee self-confidence and morale, which can then result in a lack of productivity.  But if that isn’t reason enough, employers should take a look at the recent Seventh Circuit case of Passananti v. Cook County (7th Cir., No. 11-1182, 7/20/12).  This decision provides employers with yet another compelling reason to forbid name-calling: gender-based name-calling and epithets can result in costly sexual harassment claims for employers.

In this case, Passananti filed a sexual harassment and hostile work environment suit against her former employer, Cook County.  She alleged that her immediate supervisor repeatedly called her a “bitch” in front of other employees, constantly yelled at her and belittled her authority.  Additionally, she claimed that the supervisor falsely accused her of tampering with an inmate’s urine sample and of having sexual relations with another inmate.  The case went to trial and the jury returned a $4.1 million judgment for Passananti against the county.

The Northern District of Illinois, however, did not agree with the jury’s sentiments and granted the county’s post-trial motion for judgment as a matter of law. The court recognized that the supervisor’s statements were vulgar and rude, but relied on a line of Seventh Circuit cases in deciding that the use of a gender-specific derogatory name (e.g. “bitch”) does not, by itself, constitute sexual harassment. 

Story’s not over, folks.  Along comes the Seventh Circuit, deciding to reinstate the harassment verdict. In so doing, the court reasoned that a reasonable jury could in fact find that the supervisor’s repeated, hostile use of the word “bitch” indicates that the alleged harassment occurred “because of” sex.  Notably, the Seventh Circuit focused on context – the supervisor’s other conduct, including his false accusation that Passananti was engaging in sex with an inmate, gave the jury ample reason to infer that his use of “bitch” occurred on account of Passananti’s gender. 

It is important to note that despite this decision, the Seventh Circuit reaffirmed previous cases in which it found that the repeated use of “bitch” in the workplace does not automatically constitute sexual harassment – the court acknowledged that although “bitch” is a gender-specific word, it does not always mean that the word is being used to target someone’s gender.

And now for the coveted takeaway: Employers, in conducting internal investigations, ensure that you are investigating not only the core of any alleged verbal harassment (i.e. what was actually said), but also the context of that harassment.  It is important that you ask about the alleged harasser’s tone, demeanor and other behavior in determining whether harassment actually occurred.