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The Fifth Circuit Court of Appeals Reinstated Same-Sex Harassment verdict against a Construction Company

In September 2009, the EOOC sued Boh Brothers Construction Company (Boh Bros), a construction company for subjecting one of its former employees to a sexually hostile work environment on a federal post-Katrina bridge repair project and then retaliating against him for complaining. The cases arose out of a claim of sexual harassment by Chuck Wolfe, the superintendent of an all-male crew on a construction site operated by Boh Bros. Wolfe subjected Kerry Woods, an iron worker on Wolfe’s crew, to almost-daily verbal and physical harassment because Woods did not conform to Wolfe’s view of how a man should act.

The jury found in favor of the EEOC on its hostile-environment claim, awarding compensatory and punitive damages in the amount of $451,000 ($201,000 compensatory and $250,000 punitive).
Boh Brothers appealed and in April 2012, a three-judge panel of the Fifth Circuit Court of Appeals reversed the jury verdict, finding that the evidence did not establish that Boh Bros. had harassed Woods “because of sex,” which is the standard under Title VII of the Civil Rights Act of 1964. The EEOC asked the full en banc Fifth Circuit in September of 2012 to rehear the case. The U.S. Fifth Circuit Court of Appeals has restored the jury’s finding from March 2011 that Boh Bros. illegally subjected an ironworker to severe or pervasive harassment based on gender stereotypes.

In its decision the Court’s analysis’ focused on the fact that a plaintiff is not required “to prop up his employer’s subjective discriminatory animus by proving that it was rooted in some objective truth; here, for example, that Woods was not, in fact, “manly.” Rather, in considering the motivation behind a harasser’s behavior, we look to evidence of the harasser’s subjective view of the victim. Applying these principles here, and drawing all reasonable inferences in the light most favorable to the verdict, there is enough evidence to support the jury’s conclusion that Wolfe harassed Woods because of sex. Specifically, the EEOC offered evidence that Wolfe, the crew superintendent, thought that Woods was not a manly-enough man and taunted him tirelessly. Wolfe called Woods sex-based epithets like “fa–ot,” “pu–y,” and “princess,” often “two to three times” per day.

However, some of the Judges strongly disagreed with the majority verdict, namely Judge Edith H. Jones stated that the Court’s holding “shifts Title VII toward liability based on offending speech alone, without tether (…) to discrimination “because of” sex. Vulgar speech is ubiquitous in today’s culture and is everywhere else protected from government diktat by the First Amendment. In the workplace, however, vulgar or offensive speech may now inspire litigation that costs employers hundreds of thousands of dollars to defend; may forever stigmatize the “harasser” whose principal crime was bad taste; may be outlawed by workplace sensitivity training; and may subject workplaces to intrusive, court-ordered injunctive monitoring. In essence, this judgment portends a government-compelled workplace speech code.”

If you believe that you are a victim of employment discrimination based on your gender identity or sexual discrimination, please contact The Harman Firm, LLP.

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