Gil Diekmann Quoted in The Recorder

An article in the September 6, 2005 issue of The Recorder ("9th Circuit: Sexual Content Not Needed for Harassment) notes that "You don't have to be a groper, lecher or explicit misogynist to get sued for sex-based harassment, a panel of the 9th U.S. Circuit Court of Appeals ruled Friday. The opinion, in a case originating at a teachers union, said a manager accused of "shouting, 'screaming,' foul language, invading employees' personal space ... and [making] threatening gestures" may be sued for gender-based discrimination under Title VII of the Civil Rights Act, even though his acts were not overtly motivated by gender.

"We hold that offensive conduct that is not facially sex-specific nonetheless may violate Title VII if there is sufficient circumstantial evidence of qualitative and quantitative differences in the harassment suffered by female and male employees," wrote Senior Judge Alfred Goodwin in a unanimous decision. Senior Judge Melvin Brunetti and Judge William Fletcher concurred. In the case, male and female employees agreed that women bore the brunt of the manager's outbursts. Employment lawyers said the opinion offers encouragement to plaintiff lawyers whose clients don't fit the traditional mold of harassment victims.

Gilmore Diekmann Jr., a partner at Seyfarth Shaw who defends employers in harassment suits, was less enthused. He said the opinion is unclear on the most alarming point it raises: that subjective effects of an employer's behavior may be used to determine whether there was discrimination. "It's unique and probably wrong" if the court meant that people's different reactions to the same behavior could form the basis for a discrimination claim, he said. "It seems to be some effort by a panel to possibly inject a new type of liability," he added.