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Gender-Stereotyping Evidence Establishes Same-Sex Harassment

By Patricia M. McFall   11/1/2013
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A male ironworker whose male supervisor believed that the employee was not “manly enough” and treated him based on that idea proved same-sex harassment in violation of Title VII of the 1964 Civil Rights Act, the 5th U.S. Circuit of Appeals ruled.

Terry Woods was an ironworker for Boh Brothers Construction Co. His supervisor frequently referred to him as a “pu—y,” “princess” and “fa—ot,” sometimes targeting him for such name-calling two or three times a day. The supervisor also simulated anal intercourse with him whenever the ironworker bent over. Embarrassed and humiliated by the name-calling, Woods also began to look over his shoulder before bending down. He did not complain, he alleged, because he was afraid to cause more of a conflict.

Woods’ supervisor subsequently reported him to the general superintendent for several policy violations. The supervisor told the superintendent that Woods did not “fit in” and “was different.” When he met with the superintendent, Woods complained about the supervisor’s harassment. The company investigated the claim, interviewing the supervisor for only 10 minutes and determining that, although he was unprofessional, he had not engaged in sexual harassment.

After Woods was laid off, he filed an Equal Employment Opportunity Commission (EEOC) charge, alleging sexual harassment and retaliation. The EEOC brought an enforcement action on his behalf. While the jury awarded him compensatory and punitive damages, it found in Boh Brothers' favor on the retaliation claim. The company then appealed the unfavorable rulings. The appellate court affirmed the compensatory damages award but reversed on the issue of punitive damages.

Boh Brothers claimed that evidence of gender stereotyping was insufficient to support a claim of same-sex harassment. The company also argued that the supervisor’s conduct was not sufficiently severe or pervasive to support employer liability. The Court of Appeals found that sex stereotyping, without same-sex attraction, can form the evidentiary basis for a claim of same-sex harassment, and, in this case, the evidence was sufficient to uphold the jury’s finding. Moreover, the court reviewed the evidence and determined that the conduct was sufficiently severe or pervasive to alter the conditions of Woods’ employment. Further, the company did not show that it exercised reasonable care to prevent and promptly correct the harassing behavior or that Woods unreasonably failed to take advantage of any preventive or corrective opportunities it provided. 

Boh Brothers, while maintaining a broad nondiscrimination policy, provided no specific guidance on sexual harassment nor any specific instructions for employees about reporting a complaint. The general superintendent testified that he received only about five minutes of sexual harassment training per year and did not understand that sexual harassment included conduct that was not motivated by sexual desire.

Nonetheless, the 5th Circuit Court of Appeals indicated that while the company’s failure to train its employees on the issue may have been ill-advised, there was no maliciousness or reckless indifference to employees’ rights; thus, it overturned the jury’s punitive damages award.

EEOC v. Boh Bros. Constr.Co.,5th Cir., No. 11-30770, (Sept. 27, 2013)  

Professional Pointer: This case presents a good summary of the policies, practices and training provisions that an employer should have in place to ensure that managers and supervisors are properly trained and educated with respect to harassment claims, including those based on gender stereotyping.

Patricia M. McFall is an attorney at McMahon Berger, P.C., the Worklaw@Network member firm in St. Louis.`

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