Case Study:
Andrews v. City of Philadelphia 895 F.2d 1469 (3d Cir. 1990)
Two female police officers, Andrews and Conn, filed a Title VII action against their employer and supervisors for sexual harassment. The court found sufficient basis for hostile environment sexual harassment even though sex, per se, was not the basis of the activity directed toward them though gender clearly was.
Rosenn, J.
While employees were assigned to the Auto Investigation Division (AID) of the Philadelphia police department, males dominated the division and according to Andrews, the AID squadroom was charged with sexism. Women were regularly referred to in an offensive and obscene manner and they personally were addressed by obscenities. There was evidence that the language was commonplace in police headquarters, but also testimony that one of the plaintiffs, a twelve-year police veteran, “had never been called some of the names that [she] was called in AID.” There was also evidence of pornographic pictures of women displayed in the locker room on the inside of a locker which most often was kept open. Plaintiffs contend that the language and pictures embarrassed, humiliated, and harassed them. Both employees further claimed that their files often disappeared from their desks, or were ripped or sabotaged. When Conn reported the sabotage, she was told by her supervisor, “You know, you’re no spring chicken. You have to expect this working with the guys.” Male officers who were to assist them in their work often hindered them or refused to help, although the men would help each other. The women experienced vandalism of their personal property, with Andrews having her car thrice vandalized while parked on the AID lot, with tires slashed, car scratched and windshield wipers removed; soda was poured into her typewriter; someone tore the cover off Andrews’ book needed to keep track of investigations. Someone spit on Conn’s coat, cut the band off her hat, and scratched her car. A roll of film Conn was using in an investigation disappeared before it was dispatched for developing. Both employees also received obscene phone calls at their unlisted home phone numbers which AID had access to. One of the time periods for the calls was after the lawsuit was filed. One caller told the daughter of Andrews that her mother was sleeping with Conn, and that “those bitches ain’t getting no money because they think they trying to get money but they not going to get none.” During one of the conversations Andrews heard someone say “Yoh, sarge” in the background. Conn testified that the calls made her very scared and nervous and unable to function emotionally. She was also harassed by co-workers placing sexual devices and pornographic magazines in her desk drawer and gathering around and laughing at her reaction. When she reported this to her superior, he remained unresponsive. Another time a caustic substance was placed inside Andrews’ shirt in her locker in the women’s locker room. Andrews’ back was severely burned by what was later determined to be a lime substance. Lime was found in other clothing in the locker and on the handle. Andrews also says that lewd pictures were posted on the walls and that she was embarrassed by pornographic pictures placed in her personal desk drawer. Some of Conn and Andrews’ complaints were investigated, others were not, but nothing significant came of any investigations. In both cases there was some sexually-based activity directed toward the women, such as suggestive remarks or tones used in connection with them. We believe that the trial court too narrowly construed what type of conduct can constitute sexual harassment. Great emphasis was put on the lack of sexual advances, innuendo, or contact. In the lower court’s opinion, evidence was extremely minimal and would not, standing alone, support a finding of a sexually hostile work environment, noting the lack of evidence of direct sexual harassment. To the extent that the court ruled that overt sexual harassment is necessary to establish a sexually hostile environment, we are constrained to disagree. To make out a case under Title VII it is only necessary to show that gender is a substantial factor in the discrimination, and that if the plaintiff had been a man she would not have been treated in the same manner. To constitute impermissible discrimination, the offensive conduct is not necessarily required to include sexual overtones in every instance or that each incident be sufficiently severe to detrimentally affect a female employee. Intimidation and hostility toward women because they are women can obviously result from conduct other than explicitly sexual advances. Meritor appears to support this proposition as well, “Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule and insult.” The Supreme Court in no way limited this concept to intimidation or ridicule of an explicitly sexual nature. More specifically, we hold that the pervasive use of derogatory and insulting terms relating to women generally and addressed to female employees personally may serve as evidence of a hostile environment. Similarly, so may the posting of pornographic pictures in common areas and in the plaintiff’s personal work spaces. Although the employer’s attorney argues vigorously that a police station need not be run like a day care center, it should not, however, have the ambience of a nineteenth century military barracks. We realize that it is unrealistic to hold an employer accountable for every isolated incident of sexism; however, we do not consider it an unfair burden of an employer of both genders to take measures to prevent an atmosphere of sexism to pervade the workplace. On remand, the trial judge should look at all incidents to see if they produce a work environment hostile and offensive to women of reasonable sensibilities. The evidence in this case includes not only name calling, pornography, displaying sexual objects in desks, but also the recurrent disappearance of plaintiffs’ case files and work products, anonymous phone calls, and destruction of other property. The court should view this evidence in its totality, as described above, and then reach a determination. VACATED and REMANDED.
Q1. Why do you think the employer did little to remedy this situation?
Q2. Do you think sexual overtones should have been required here?
Q3. What would you have done if you were the manager?
Your answer must be typed, double-spaced, Times New Roman font (size 12), one-inch margins on all sides, APA format.