Non-Sexual Hostile Conduct as the Basis for a Sexual Discrimination Claim

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Non-Sexual Hostile Conduct as the Basis for a Sexual Discrimination Claim

Offensive conduct need not be of a sexual nature to create a hostile work environment. Conduct which is hostile, but not sexual, that is directed at an employee because of his or her gender may be enough to support an action for discrimination.

The motive of the hostile misconduct is immaterial- the harasser may have no sexual intent at all. Rather, for a sexual discrimination case based on non-sexual conduct, the harasser must have discriminated against the victim employee because of his or her gender.

A pervasive pattern of abuse directed toward women constitutes harassment even if it is not motivated by sexual desire or the desire to encourage women to leave the company or organization. However, nonsexual acts of retaliation that do not show discrimination based on the victim's gender do not support a claim of pervasive harassment. Thus, if one gender is treated poorly, it must be true that the other gender is not treated to same so as to show that the harasser discriminated against victims because of their gender.

For example, in EEOC v. National Ed. Ass'n, the court found that a male supervisor's "rude, overbearing, loud, vulgar and generally unpleasant" comments and physically aggressive (but non-sexual) actions to female subordinate employees may constitute sexual harassment if the supervisor's male subordinates were treated with proper respect.

Pranks can also be enough to create a hostile work environment and form the basis of a sexual discrimination claim. For example, in Williams v. General Motors Corp., the victim employee found office supplies glued to her desk, was hit by a thrown box, and was locked in her work area, as well as being subject to threatening language and a sexually aggressive innuendo from a supervisor. The court found that this conduct was work-sabotaging behavior that created a hostile work environment and constituted sexual discrimination.

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