If you’re an employer with an appeal to the Second Circuit, having the EEOC write a brief on behalf of the Plaintiff-employee is not one of those things that portends well for the case.
So, when the Second Circuit issued its decision in Pucino v. Verizon Communications (download here), perhaps the writing was already on the wall when the EEOC filed an amicus brief months earlier.
What attracted the EEOC to the matter? Perhaps it was the way the facts were presented. In the Pucino matter, it may have been the district court’s dismissal of the employee’s claim, where the court said that repeated use of the word "bitch" was not enough to get a claim of a hostile work environment to a jury.
The Second Circuit vacated the lower court’s decision saying that under the circumstances of this case, the repeated use of that term was enough. But notably, the court didn’t say that it would always be enough. Rather, it said that the context was critical:
…Pucino and the EEOC suggest that the word "bitch" is such an intensely degrading sexual epithet that its use implies as a matter of law hostility toward women. It surely is the case that use of that word in many contexts reflects such hostility. However, we cannot say that use of the word "bitch" always and in every context has that meaning or that its usage need not be viewed in context. We also see no need to worry that a trier of fact cannot make the appropriate judgment about the word’s use. We therefore reject a rule that would automatically command an inference of gender-based hostility to be drawn from its use.
Having said that, we also have no doubt that such a trier could find that [the foreman’s] "constant" use of the word over several years in the context of the present record was sex-based and reflected hostility to women.
The case goes on to discuss theories of "objective" versus "subjective" beliefs of harassment and is one of the few published Second Circuit decisions recently in this area. As a result, employers and their attorneys may want to take a look at the case because it is likely to be cited in similar matters.
As an aside, the court’s decision isn’t as radical as it might appear to be at first. If the court adopted a rule that the use of the word "bitch" automatically created a hostile work environment, what would that mean for the iconic 1997 Meredith Brooks’ song "Bitch". (One could only guess on the number of lawsuits that would have arisen from the playing of that song — see below).
On the other hand, if the court had found that the word "bitch" could never really amount to a hostile work environment, that would represent a shift from the court’s prior holdings that words and context matter. Thus, the court’s adoption of a "context" rule represents a continuation of prior precedent.