By Joanne Deschenaux
A male construction supervisor's comments and behavior toward a male subordinate, allegedly based on the subordinate's failure to conform to gender stereotypes, was not sex discrimination under Title VII of the 1964 Civil Rights Act, the 5th U.S. Circuit Court of Appeals ruled. The court overturned a $250,000 judgment for the Equal Employment Opportunity Commission (EEOC) on its same-sex sexual harassment claim against Boh Brothers Construction Co. brought on behalf of Kerry Woods, ruling that the evidence showed only that Woods' supervisor was “a world-class trash talker” and a “master of vulgarity.” However, the court said, Title VII was not designed to address that kind of behavior.
In addition, the evidence of abusive conduct directed at Woods because he was viewed as not conforming to gender stereotypes, as the EEOC claimed, was limited and insufficient to support the jury's finding of discrimination “because of” sex, the court said.
Therefore, the trial court erred when it refused to issue a judgment for the employer and allowed the case to go to the jury, the appellate court concluded, reversing the lower court’s decision.
Hostile Environment Issue Not Decided
The appeals court noted that, because the supervisor's alleged conduct did not constitute sex discrimination under Title VII, whether the conduct was severe or pervasive enough to have created a hostile work environment for Woods did not have to be decided.
The court also observed that whether the EEOC could rely on the sex stereotyping theory of sex discrimination to prove a same-sex harassment claim was a question that the 5th Circuit had not previously addressed.
“As the facts allow for resolution on narrower grounds, we leave that question for another day,” the court wrote.
According to the court, Woods joined Boh Brothers as an ironworker in November 2005. The following January, he was assigned to a maintenance crew for a bridge that was being repaired and returned to service after Hurricane Katrina.
The superintendent of that crew was Chuck Wolfe. According to Woods, Wolfe harassed him on a regular basis, including by calling him “faggot” and “princess” and by simulating sexual intercourse with Woods while Woods was bent over performing his job duties. Woods also alleged that Wolfe exposed himself to Woods on a number of occasions.
Woods claimed that he complained to the crew foreman about Wolfe’s comments and actions. In late 2006, Woods reported Wolfe's harassment “in detail” to Wolfe's supervisor, Wayne Duckworth, after being called to Duckworth's office for possibly having improperly requested to view other employees' time entries.
The request was a possible violation of Boh Brothers' policy prohibiting requests to view co-worker's time sheets. And it was Wolfe who referred the matter to Duckworth after being informed of the incident by the contractor overseeing Boh Brothers' work on the bridge. In referring the matter to Duckworth, the court observed, Wolfe commented that he “didn't care for” Woods because he was “different” and “didn't fit in.”
After Duckworth sent him home for three days without pay, Woods was transferred to a different Boh Brothers job site. Although Duckworth investigated Woods' allegations regarding Wolfe's alleged abuse, Duckworth concluded that Wolfe's behavior was unprofessional but did not constitute sexual harassment.
A few months later, Woods was laid off by Boh Brothers, allegedly because of a lack of available work. He filed a charge with the EEOC, complaining of a sexually hostile work environment and retaliation. The EEOC later sued on his behalf under Title VII.
Jury Awards Damages
Following a three-day trial, the jury found for the EEOC on the hostile environment claim, but found in favor of Boh Brothers on the retaliation claim. The jury awarded the EEOC, on behalf of Woods, $200,000 in compensatory damages and $250,000 in punitive damages, but the compensatory damages award subsequently was reduced to $50,000 by the trial court under Title VII's statutory cap on damages.
The company appealed the judgment on the sexual harassment claim to the 5th Circuit.
The appeals court observed that the case raised a matter it had never been presented with before: “whether sex stereotyping is a cognizable form of same-sex harassment under Title VII.”
The court said same-sex harassment traditionally has been shown through evidence that the alleged harasser was homosexual and made proposals of sexual activity to the plaintiff, the alleged harasser was motivated by general hostility toward the presence of persons of the same sex in the workplace, or the alleged harasser treated members of the same sex differently than members of the opposite sex.
The court added that the sex stereotyping theory of liability is derived from the Supreme Court's decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Under that theory, it said, an employer can be liable for employment actions that are based on a belief that an employee does not act in conformance with society's expectations for persons of that gender.
The case, the court said, stood “in sharp contrast to Price Waterhouse,” where considerable evidence was presented that the plaintiff did not conform to stereotypes for women.
As a result, it said, reversal was required, and it was not necessary to decide whether the circuit should adopt the sex stereotyping theory for same-sex harassment claims.
EEOC v. Boh Bros. Constr. Co., 5th Cir., No. 11-30770 (July 27, 2012).
Professional Pointer: The court left open the question of whether abusive behavior or comments reflecting gender-based stereotypes can ever support a same-sex harassment claim under Title VII.
Joanne Deschenaux, J.D., is SHRM’s senior legal editor.