Inconsistent Pleadings: When and How to Say "F***ing" At Work

by Ian Retford

For 2000 or so years, conventional medical wisdom/quack science held that various bodily substances, known collectively as the four humours, governed a person’s physical and emotional disposition. I have my own four humours theory, which is basically that the only things people really find funny are cursing, typos, pratfalls and old people. (This means, for a lawyer, that your day job is about as amusing as a Chris Buckley piece.)

But, oh, the exceptions! In 2008, for example, Fox was fined by the FCC for failing to bleep various expletives uttered at the now-defunct Billboard Awards. (One “fuck” by Cher at the 2002 awards, one “fucking” and one “shit” by Nicole Richie at the 2003 awards.) The FCC contested the appropriateness of the fines, and during oral argument at the Supreme Court, then-88-year-old Justice Stevens had a question that he thought cut to the heart of the matter.

“JUSTICE STEVENS: Could I ask one question that just occurred to me? Do you think the use of the word dung, D-U-N-G, would be indecent?”

That was amusing. But “dung” is usually about as wild as judges get. (In the Supreme Court’s opinion upholding the fines, “fuck” and “shit” were rendered as “f***” and “s***”.)

The case of Ingrid Reeves of Birmingham, Alabama is a notable departure from typical judicial decorum. Reeves, who may or may not bear a striking resemblance to the Kathy Bates character from Primary Colors, had a series of jobs where she was more or less the only lady around: a post on a container ship, a stint in the Merchant Marines and finally a job on the logistics floor at a shipping company, C.H. Robinson, where she was one of only two female employees. Like most environs that skew heavily male-e.g., locker rooms, trading floors, the island from Lord of the Flies, libertarian rallies-the C.H. Robinson office was a mix of foul language, puerile jokes, homoerotic towel-snapping and unrepentant misogyny.

It’s this last part that rubs Reeves the wrong way. Although she was apparently cool with the run-of-the-mill swearing by C.H. Robinson employees (sample: “Jesus fucking Christ,” “fucking asshole,” “fucking jerk,” and “fucking idiot”), she was, oddly enough, more troubled by the gender-specific insults that were flung around routinely (sample: “bitch,” “fucking bitch,” “fucking whores,” “crack whore,” and “cunt.”).

She was also bothered by some of the insults leveled at her only female coworker (for example, “She may be a bitch, but she can read”).

And: “Indeed, Reeves’s supervisor, branch manager David Mitchell, often referred to his female colleagues by the term ‘bitch.’ Among other examples offered, he ordered Reeves to speak with ‘that stupid bitch on line 4,’ and described a former female colleague, Jackie Burt, as a ‘lazy, good-for-nothing bitch.’”

After one of her colleagues displayed porn on his computer, Reeves decided that she’d had enough and complained to her branch manager. Five times. When that proved fruitless, she asked to speak with a few C.H. Robinson executives, who declined Reeves’s offer to discuss “sexually offensive language and conversation in the office.”

This being America, Reeves quit, and sued. She claimed that C.H. Robinson violated Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of, among other things, race and sex (but not, FYI, sexual orientation). The trial court, unpersuaded, held that Reeves had no claim because the offensive conduct was directed at other women and not specifically at Reeves.

A sweeping (and profanity-laced!) opinion [PDF] of the Eleventh Circuit Court of Appeals reinstated Reeves’s suit. In what should already make any list of the top judicial pronouncements of 2010, the court found it immaterial that Reeves herself was not the target of her coworkers’ offensive barrage:

It is enough to hear co-workers on a daily basis refer to female colleagues as “bitches,” “whores” and “cunts” . . . . The harasser need not close the circle with reference to the plaintiff specifically: ‘and you are a bitch, too.’

The Court likewise dismissed C. H. Robinson’s charming argument that no discrimination took place because everyone, male and female alike, was called “bitch” at the Birmingham office: “[T]he terms ‘bitch’ and ‘whore’ have gender-specific meanings… Calling a man a ‘bitch’ belittles him precisely because it belittles women.”

Most immediately striking about the opinion is its unflinching and utterly logical examination of the ways in which, depending on context, profanity might or might not carry a sexually derogatory connotation. Check out footnote 4, on permissible and impermissible uses of “fucking.”

It is, needless to say, titillating to hear a dead-serious exegesis on curse words from the Geritol set. But it’s also useful. Coworkers are frequently nasty, brutish and short, and it is crucial to employment discrimination claims that courts have some heuristic for distinguishing between the acceptably boorish and the unacceptable biased.

Even more remarkable than the opinion itself is its provenance. The Eleventh Circuit is one of the most conservative federal appeals courts in the country, and yet all 11 of the judges who heard the appeal-7 of whom were appointed by Republican presidents-agreed on the outcome. This might make you suspicious. Is the opinion grounded in some kind of misguided, sexist chivalry, a notion of women as delicate hothouse flowers? The references to Reeves’s rough-and-tumble employment history and her own penchant for “generic swear words” suggests otherwise. The message of the opinion seems to be not that Reeves couldn’t handle the diarrhetic sexism of her coworkers, but only that she shouldn’t have had to.

Previously: Inconsistent Pleadings: ACLU v. Grayson County, or, America’s Heritage

Ian Retford is the pseudonym of a lawyer in New York City.