By Rick Gautschi
In Passananti v. Cook County, No. 11-1182, Slip Opinion, July 20, 2012, 7th Cir., Beginning in 2004, over a period of approximately three years, a former director of the Day Reporting Center (DRC) in Cook County, IL, on numerous occasions, referred to the then-deputy director, Kimberly Passananti, as a “bitch.” At times, references came in face-to-face meetings between director and Ms. Passananti. On other occasions, the director made the references in front of other employees and he used the same term to refer to other women employees at the DRC. The claim that the director used the term in a hostile manner was shown, for example, by his repeated statements to Ms. Passananti that she was a “stupid bitch” and when he directed her to “shut the ‘F’ up, you lyin’ bitch.”
Although the employer had a written policy for reporting sexual harassment claims, Ms. Passananti did not follow the policy. Instead, she wrote a ten-page letter to the special counsel in the sheriff’s department, she detailed the director’s treatment of her. In 2006, the director left the DRC. In 2007, county-wide budget cuts included the elimination of Ms. Passananti’s position. Following the termination of her employment, Ms. Passananti sued Cook County and the former director for his alleged sexual harassment of her and for sex discrimination resulting from the termination of her employment.
After a trial a jury awarded Ms. Passananti $4 million in damages against Cook County, $70,000 in compensatory damages and $30,000 in punitive damages against the former director. Regardless, the trial judge granted the defendants’ motion for a judgment as a matter of law and entered a judgment for the defendants. In assessing Ms. Passananti’s claims, the 11th Circuit explained that under Title VII of the Civil Rights Act of 1964, only an employer may be liable for sexual harassment. Consequently, because the former director’s alleged conduct provided the sole source for the claim, the jury’s award against him was attributable to the alleged sexual harassment. Disagreeing with the trial court judge, the 11th Circuit reasoned that the term “bitch” is gender specific.
Depending on the context in which one uses the term, it can be either a form of vulgar speech or harassment based on sex. Noting that other courts have recognized the repeated use of sexually degrading, gender specific terms as being a form of harassment based on sex, the Court determined that sufficient evidence supported a finding that the former director’s repeated hostile use of “bitch” took his conduct from vulgarity to harassment.
Just as the repeated use of the “N word” can constitute racial harassment, the director’s utterances established sexual harassment. Although the employer took no action after receiving it, Ms. Passananti’s letter to the special council put the employer on notice of the alleged sexual harassment. Under those circumstances, the jury was justified in finding the employer liable for the harassment.
Because, however, there was no evidence of a discriminatory motive behind the employer’s decision to eliminate Ms. Passananti’s position, the Court affirmed the judgment for the employer on her other discrimination claim. Finally, the Court directed entry of a judgment in the amount of $70,000 against the employer on Ms. Passananti’s sexual harassment claim.
