Gentlemen: Don't Lose Your Cool

Hospitality is a frustrating industry that often induces massive amounts of stress. Just ask any manager who must make sure there is proper staffing, product and ambiance to produce an excellent guest experience yet remain profitable. Regardless of the situation, however, cool heads must prevail.

Besides risking poor decisions in the heat of the moment, unexpected legal dangers may result from losing your cool. A recent case illustrates a new danger lurking for male managers whose conduct may be considered discrimination when they lose control.

Recently, a federal court held that a man who yells and screams at work may be discriminating on the basis of sex if a woman at work finds the behavior more intimidating than a man would. The court ruled a “reasonable woman” standard applies to abusive conduct in the workplace, even when it doesn't contain sexual content. The court's decision will significantly expand the types of behaviors that may become basis for claims of discrimination.

Three female employees sued their employer for gender discrimination, claiming their supervisor created a sex-based hostile work environment. The supervisor frequently screamed and cursed with little or no provocation, shook his fists, stood behind them as they worked and once even lunged across the table at the workers. The conduct was not sexual, nor was it marked by sexual language, gender-specific words, sexual stereotypes or sexual overtures.

The supervisor also raised his voice with men, but male employees dealt with the abuse while the female employees variously cried, became panicked, felt physically threatened, avoided contact with the supervisor or called the police. One woman ultimately resigned.

The court ruled that the behavior need not be of a sexual nature nor the motive for the behavior need be animus towards members of one sex to be sex-based discrimination. The court said sexual or gender content is not required; the key issue was whether the conduct affected women more adversely than men. Under the “reasonable woman” standard, the differing effects of the behavior are the way to determine whether men and women are treated differently. Because a reasonable woman would be more intimidated than a man, the conduct is deemed to treat women differently. The male supervisor's intention to treat women differently is irrelevant.

Another factor to consider is whether women are more frequently exposed to the abusive behavior than are men. Even if most of the employees are women, and women had more contact with a particular supervisor, the employer still will not prevail in court because of an unbalanced distribution of the sexes. Also, the fact that some men were harassed does not overcome the display of differential treatment.

The court gave no indication of how many instances of abusive treatment are enough. However, it did say in some cases it was possible that quantitative differences in abusive treatment of men and women could be too slight to survive summary judgment.

This decision is a significant extension of the law of gender-based discrimination because it takes neutral, if undesirable, behaviors, and looks at how they affect women differently. While previous cases involved behavior with obvious sexual content, in this case the court expanded the same model of legal analysis to conduct that was simply abusive but without sexual content.

Toleration of abuse now carries a higher risk. If women perceive that abuse puts them at a disadvantage, it may be discrimination. There is no theoretical reason why the standard set in this case could not be further extended to race or other forms of discrimination.

Employers should take a number of steps to prevent similar claims: Take immediate disciplinary action against abusive workplace behavior. Terminate repeat offenders to avoid potential liability. Assure workplace policies prohibit any form of harassment and are enforced. Finally, inform supervisors that even though abusive conduct may not be gender-specific, it can still be considered gender-based discrimination if the conduct has a more adverse effect on women.


Mark A. Addington is an employment attorney with Fowler White Boggs Banker P.A. Addington may be reached at 904-598-3124 or maddington@fowlerwhite.com.

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