Context is Everything

I am thrilled to be guest-blogging for Concurring Opinions for the month of August.  For my first post, I thought I would draw your attention to an interesting case out of the Seventh Circuit last month.  In Passananti v. Cook County, the court considered a hostile work environment sexual harassment claim brought by an investigator for the Cook County Sheriff’s Department.  The primary issue on appeal was whether the “frequent and hostile use of the word ‘bitch’ [was] a gender-based epithet that contributed to a sexually hostile work environment.”  In other words, is “bitch” always sexist?

Putting aside the use of the word in dog-training circles, you might be wondering how this word could possibly not be sexist? It turns out that the Seventh Circuit, in a prior case, actually concluded that the use of the word was not based on sex but rather on personal animosity that “arose out of an earlier failed relationship between the plaintiff and the harasser.”

But in Passananti, the Seventh Circuit reversed the lower court, finding that the mere use of the term in this case, without other gendered words, is sufficient for a finding of sexual harassment.  And the court, quite reasonably, pointed out that “when gender-specific language is used in the workplace . . . context is key.”  A laudable approach until you look one step further at the specific context that the court looked to for help here:  “The jury heard testimony that Sullivan used the word “bitch” regularly in reference to the plaintiff. He did not use the word in jest, but instead used it together with his threats against Passananti’s employment.”  Not exactly convincing. We are supposed to understand that the term is gendered because he didn’t use it in jest and was threatening her employment?

Most of us would agree that the supervisor’s use of the word “bitch” in this case was gender-derogatory for one simple reason:  he is a man, using a gendered word, against a woman, and there is no other explanation for its use.  Can the term have different meanings in other contexts?  Absolutely.  When women use it amongst themselves, for one, the term can be endearing or playful.  But it is rarely benign when spoken by a man and directed at a woman.  But nowhere in the court’s lengthy discussion of context does this simple truth appear.  Why is the court so hesitant to name this reality – that linguistic meaning is the product of multiple contextual factors, including, importantly, the identity of the speaker?

I’ll save additional discussion and some possible answers for a later post.  Suffice it to say, I am thinking a lot about this question right now and have just posted a draft of my article on the topic on SSRN. I’ll discuss the article in a later post but for now here’s the link to The N-Word at Work: Contextualizing Language in the Workplace.

 

 

 

 

 

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6 Responses

  1. marilyn weske says:

    Thought provoking take. Each ethnicity, gender, sexual orientation can identify words which, if directed at it, could rightfully be considered harassment.

  2. Token Brit says:

    It’s worth remembering that even words Americans would consider clearly gendered or otherwise offensive are not always that way in other countries, and vice versa. For example, in the United Kingdom, Ireland and Australia, C**t is used more often to refer to a man.

    There is, of course, also the vast British slang lexicon, with its own share of racist, sexist or homophobic terms (e.g., http://www.effingpot.com/slang.shtml and http://www.effingpot.com/people.shtml)

  3. Enid Kraus says:

    Yes, women have used it amongst themselves, as is pointed out here. Occasionally, men have been observed to use the term amongst themselves, also, often supposedly humorously. But in the workplace, from a male supervisor to a female under his supervision, all of that becomes irrelevant.

  4. A.J. Sutter says:

    I’m not clear on the difference between discrimination and harassment. And aren’t there some other pertinent factors independent of specific words, such as power relationships, menace, etc.?

    First, take the prima facie innocuous word “Jew”. (In these examples, suppose all speakers are non-Jewish.)

    A1. My boss, or someone else higher on the org chart than I am, says to someone else in my presence, “That file? Give it to the Jew,” indicating me.

    A2. Similar to A1, but the person who says this is is someone much lower in the org chart than me.

    A3. I hear my boss explain to someone else, indicating me, “He’s a Jew, so he’s going to be taking some days off in late September.” His tone of voice is resentful or sarcastic.

    A4. Same as A3, but his tone is matter-of-fact, or even supportive.

    A5. Someone brings a bunch of multi-colored cupcakes into the office. One and only one has a blue-and-white topping. A colleague with whom I also socialize says, with a friendly smile to me, “Ah, that’s for the Jew.”

    A6. Similar to A5, but it’s my boss who smiles and says it.

    Next, consider B1-6: same as above, but with “kike” used instead of “Jew.”

    Which, if any, are cases of unlawful discrimination, and which are harassment? Are the B-cases always worse than the A-cases? Do any of the above cases depend on the power relationships? It certainly seems to me that some of the A-cases, such as A1, A3 and A6, would be pretty creepy.

    Finally, suppose I were an ultra-orthodox kipa-wearing Jew, and the speaker in each case were a more assimilated Jew: could any of the above comments or actions constitute discrimination/harassment?

  5. PrometheeFeu says:

    I respectfully disagree. Upon hearing the word ‘bitch’, I will readily assume that the speaker intensely dislikes the subject of conversation and that the subject of conversation is female. This does not mean that one of those facts has anything to do with the other. The phrase “I have nothing but contempt for her.” clearly is gendered, and is clearly derogatory, but in and of itself is not indicative of sexism. I believe ‘bitch’ can be used similarly: As an insult which just happens to be only applicable to women.

    Of course, “bitch” can be sexist in some contexts. As mentioned above, it’s highly context-dependent.

  6. Context matters, sure, but that’s a question that should be argued to the jury, not decided by a judge. The 7th Cir., noting that the dictionary defines “bitch” as a sexist insult, stated that “[a]dditional evidence that ‘bitch’ is ‘sex based’ for purposes of establishing gender-based harassment is not necessary.”

    The point is that a plaintiff — as a matter of law — should not be required to present additional evidence of a sexist context to establish that the word “bitch” was used in a sexist way (though as a practical matter, a plaintiff may want to do so to persuade a jury and establish the apporpriateness of punitive damages). Although there can be a bona fide argument in specific cases that context has neutralized the sexist impact of the word, that’s a fact question.

    A judge should not be deciding that additional evidence of context has neutralized the use of the word, because there is no way to reach that conclusion without weighing evidence of sexist word-meaning against evidence of a potentially non-sexist context.