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Gender Stereotyping

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Fifth Circuit Affirms Viability of Gender Stereotyping Claim in Same-Sex Sexual Harassment Case

An en banc panel of the Fifth Circuit affirmed a jury verdict for a male employee who had been subjected to gender stereotyping.

In Equal Employment Opportunity Commission v. Boh Bros. Construction Co., No. 11-30770, 2013 WL 5420320 (5th Cir. Sept. 27, 2013), an en banc panel of the Fifth Circuit affirmed a jury verdict for a male employee subjected to same-sex sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964.

Although the panel of judges affirmed that the employer had engaged in intentional discrimination, it overturned the jury’s award of punitive damages because the panel felt that the employer did not subjectively perceive that it was violating federal law.  After reversing the punitive damages award, the Fifth Circuit sent the case back to the district court for consideration of the compensatory damages award.

Plaintiff Kerry Woods worked as an ironworker for Boh Brothers Construction Company under the supervision of crew superintendent Chuck Wolfe.  Wolfe regularly targeted Woods for sexually explicit verbal and physical abuse and even exposed himself to Woods on multiple occasions.

Wolfe’s gender stereotyping harassment originated, in part, from Woods’ use of moist towelettes at the work site, which Wolfe viewed as “feminine.”  Woods reported Wolfe’s harassing behavior to both his foreman and general superintendant, but Wolfe was never disciplined.

In November 2006, Boh Brothers transferred Woods to a different crew to avoid further problems with Wolfe and laid him off for lack of work in February 2007.

Woods originally filed a charge of discrimination with the EEOC in November 2006.  In September 2009, the EEOC brought suit against Boh Brothers, alleging sexual harassment and retaliation under Title VII.

The jury found in favor of Woods and awarded him $451,000 in compensatory and punitive damages for gender stereotyping, which the district court reduced to comply with the $300,000 statutory damages cap.  On appeal, a three-judge panel of the Fifth Circuit reversed, holding that there was insufficient evidence as a matter of law to sustain the jury’s verdict that Boh Brothers had discriminated against Woods by gender stereotyping.

The Fifth Circuit judges reversed in part the three-judge panel, holding that a plaintiff can prove same-sex sexual harassment with evidence of gender stereotyping.  Significantly, the Court stated that a plaintiff must only show that the employer subjectively perceived the employee as failing to conform to gender stereotypes without requiring proof that the employee actually had failed to conform to gender stereotypes.

The Fifth Circuit then concluded that a reasonable jury could find that (1) Wolfe harassed Woods because of his sex since he considered Woods to be unmanly and (2) the harassment was severe and pervasive.  In so doing, the Fifth Circuit stated that the three evidentiary paths for proving same-sex harassment described in Oncale v. Sundown Offshore Services, Inc., 523 U.S. 75 (1998), are merely illustrative, and not exclusive.

The majority’s opinion in this case drew several dissents from the en banc panel.  Circuit Judge E. Grady Jolly wrote that the EEOC failed to prove that sex discrimination motivated Wolfe’s harassing behavior, given the more demanding burden for same-sex sexual harassment claims, Wolfe’s similar treatment of other employees, and the baseline crudity of the ironworker worksite.

Circuit Judge Edith H. Jones viewed the decision as “portend[ing] a government-compelled workplace speech code.”

Circuit Judge Jerry E. Smith pointedly criticized the majority for sanctioning Woods’ hypersensitivity and warned that “[t]he only way an employer can avoid the real possibility of suit and ultimate damages is to . . . make sure that nothing is uttered in the workplace that could possibly offend even a single person.”

Senior Circuit Judge Harold R. DeMoss disagreed with remanding the compensatory damages determination to the district court.

Boh Bros. is a victory for employees, as the Fifth Circuit for the first time expressly held that discrimination because of failure to conform to gender stereotypes is discrimination “because of . . . sex” under Title VII.  This provides an important avenue of legal redress for employees in Texas, Louisiana, and Mississippi facing gender stereotyping and/or harassment in the workplace.


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