Labor & Employment

Harassed for being unmanly? En banc court sees Title VII violation; dissent sees clean-talk enforcer


An iron worker subjected to gay slurs and simulated sex because he failed to conform to his boss’s male stereotypes may collect Title VII damages for sex harassment, according to an en banc appeals court.

The New Orleans-based 5th U.S. Circuit Court of Appeals upheld a jury finding of liability against Boh Brothers Construction in a case brought by the Equal Employment Opportunity Commission, according to an ABA Media Alert. The 10-6 en banc opinion (PDF), issued on Friday, is contrary to a 5th Circuit panel decision last year, covered in this 2012 New Orleans Times Picayune story.

Both the worker, Kerry Woods, and his crew superintendent, Chuck Wolfe, were heterosexual men, according to the opinion. But Woods did not conform to Wolfe’s view of how a man should act, the majority said. Wolfe called Woods a princess and a faggot, simulated sex with Woods when he bent over, and exposed himself to Woods while urinating, sometimes waving and smiling. He also asserted Woods was “kind of gay” because he used Wet Ones.

“The EEOC asserted that Wolfe harassed Woods because Woods was not a manly-enough man in Wolfe’s eyes,” the majority wrote. “On appeal, Boh Brothers argues that (1) the EEOC cannot, as a matter of law, rely on gender-stereotyping evidence to establish a same-sex harassment claim, and (2) even if it could, the evidence here was insufficient to sustain the jury verdict. … Both of these arguments fail. …

“Viewing the record as a whole, a jury could view Wolfe’s behavior as an attempt to denigrate Woods because—at least in Wolfe’s view—Woods fell outside of Wolfe’s manly-man stereotype.”

The jury had awarded Woods $200,000 in compensatory damages and $250,000 in punitives, but the trial judge reduced compensatories to $50,000 because of a statutory $300,000 cap. The appeals court vacated the $250,000 punitives award because the case law concerning same-sex stereotyping had not been directly addressed at the time, and remanded for a new determination.

Dissenter E. Grady Jolly said the EEOC had failed to prove that Wolfe harassed Woods because he believed him unmanly, especially since Wolfe engaged in vulgar conduct with most every other employee. “Let me first acknowledge that the facts and language in this case, which occurred in an all-male workforce on an ironworker construction site, are not for tender ears,” he wrote. “The vulgarities can cast turmoil in a strong stomach, but that does not mean that the laws of the United States have been violated, and it does not require Title VII and the EEOC to serve as federal enforcer of clean talk in a single sex workforce.”

Judge Edith Jones wrote a separate dissent. “Vulgar speech is ubiquitous in today’s culture and is everywhere else protected from government diktat by the First Amendment,” she wrote. “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.”

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