Thomas Harvey shouted at his subordinate female employees, and he did so frequently, profanely, and often in public. The shouting had no sexual content and did not involve derogatory language about women. But, the record suggests, only women were subjected to it, at least in its most extreme form.

In its decision in EEOC v. National Education Association (NEA), the U.S. Court of Appeals for the Ninth Circuit held that the plaintiffs could proceed to trial on their sexual harassment claim. That decision garnered headlines because neither sexual behavior nor language with sex-specific content was alleged. To those familiar with the law, though, this is not news. Indeed, the fact that the media took note of the case illustrates the wide gap between popular perceptions of sexual harassment law and the actual law of sexual harassment.

In this case, that law was simple and well established: Title VII bans sex discrimination in the workplace. And that ban has long been understood to encompass sex-based harassment – hostile or abusive behavior targeted at employees of one sex, whether or not it is sexual in nature.

Thus, the Ninth Circuit was entirely right to allow this case to go forward.

THE BOSS'S TREATMENT OF WOMEN AT THE NEA-ALASKA

The alleged harasser, Thomas Harvey, was the executive director of NEA-Alaska, a labor union representing teachers and other public school employees. Plaintiffs Carol Christopher, Julie Bhend, and Carmela Chamara held various positions in the union subordinate to Harvey. According to testimony of plaintiffs and several other witnesses, Harvey routinely yelled at the plaintiffs with “little or no provocation.” Worse, his shouting rants were often accompanied by aggressive physical gestures like lunging at, pumping fists at, invading the personal space of, and grabbing plaintiffs while barking commands or complaints at them. Plaintiff Christopher described an incident, for example, where Harvey screamed profanely at her for not reading her work e-mail while away (on an approved day off) visiting her dying sister.

Each plaintiff testified that Harvey's conduct rendered the work environment physically and verbally threatening – so much so that one of them did not seek pay for overtime she had worked because she “was too scared of Mr. Harvey to turn [the records of her overtime hours] in to him.”