Not all harassment claims filed by female employees involve sexual harassment. Even in the absence of incidents involving sexually related behavior, employers can be accused of allowing the creation of a hostile or offensive working environment based upon gender. In these cases, plaintiffs must demonstrate that the alleged offensive conduct resulted from hostility toward the presence of their gender in the workplace.

How can plaintiffs tie what they view as abusive behavior to their gender? Employers often assert the so-called "Equal Opportunity Jerk" defense, claiming that the alleged harasser treated both men and women in the same derogatory way. A new decision from the Second Circuit Court of Appeals gives employers guidance as to how these issues can result in potential legal liability.

In Pucino v. Verizon Communications, Inc., the plaintiff was a female field technician who alleged that her male supervisors engaged in a series of discriminatory and harassing conduct, including denying her tools and assistance, berating and criticizing her in front of other employees and applying rules of conduct differently when it came to her. The district court dismissed the claim, concluding that the plaintiff could not demonstrate that this alleged conduct was motivated by her gender.

The Second Circuit reversed this decision, remanding the case for trial. In its decision, the court discussed how plaintiffs can show that workplace behavior was motivated by a protected category. In this case, the plaintiff demonstrated that only female technicians were subjected to much of the behavior complained of in the lawsuit. This alone inferred that the conduct was due to gender.

The court also placed significant weight on the male supervisors' repeated use of the word "bitch" to describe the plaintiff. While the Second Circuit recognized that the word can be used in a context that may not display hostility based on gender, in this case, its repeated use was evidence of hostility toward women.

In other words, both words and actions matter. Rather than rely upon the Equal Opportunity Jerk defense, employers are better served by policies and practices that monitor and address this behavior before it rises to the level of a hostile and offensive working environment.