Motivation for Sex Harassment May be Revealed by Different Treatment of Comparators Not Just by Sex-related Conduct.

The EEOC and three female employees of a labor union? brought? suit? alleging? that? without provocation a male supervisor shouted at the women, screamed at them, used foul language, invaded? ?their? ?personal? ?space, used? ?threatening physical gestures, and that the employer constructively discharged one of them. The district court? granted? summary? judgment? for? the employer on? ?the? ?ground? ?that the? ?supervisor’s behavior was not on its face sex-related or gender- related so was not “because…of sex” in violation of Title? ?VII.? ?The? ?Ninth? ?Circuit? ?reversed? ?and remanded?? for?? trial,?? holding?? the?? supervisor’s conduct could violate Title VII if there was sufficient ?circumstantial ?evidence? of? qualitative and quantitative differences in the harassment suffered??? by??? female??? and??? male??? employees. Citing Oncale v. Sundowner Offshore Servs., Inc.,?523 U.S. 75 (1998), the Court explained that “there is no legal requirement that hostile acts be overtly sex- or gender-specific in content, whether marked by language, by sex or gender stereotypes, or by sexual overtures. While sex- or gender-specific content is one way to establish discriminatory harassment, it is not the only way: “direct comparative evidence about how the alleged harasser treated members of both sexes” is always an available evidentiary route.” ?Importantly, the Court also announced that “an unbalanced distribution of men and women in relevant employment ?positions,? and? the? fact? that? some men were also harassed, does not automatically defeat??????? a??????? showing??????? of??????? differential treatment.”? EEOC ?v. ?Nat?l ?Educ. ?Ass?n, ?422 F.3d 840 (9th Cir. 2005) (Goodwin, Brunetti, and Wm. Fletcher).