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Sharply divided Fifth Circuit finds sexual epithets, mock humping show same-sex harassment in gender stereotype case

October 1st, 2013  |  Lorene Park

By Lorene D. Park, J.D.

Reviewing en banc the appeal of a jury award in favor of a male ironworker who was allegedly sexually harassed by a superintendent because he wasn’t manly enough, the Fifth Circuit, in a 10-6 decision, found sufficient evidence that the harassment was because of the employee’s sex and was sufficiently severe and pervasive to alter his work environment (EEOC v Boh Brothers Construction Co, LLC, September 27, 2013). Three separate dissenting opinions suggested there was insufficient evidence to support the “because of” sex finding and expressed concern that the majority opinion portends a government-imposed workplace speech code. Included below are comments from Employment Law Daily Advisory Board Member David Wachtel on the cases’ impact.

“Manly” men. The ironworker was assigned to a maintenance crew for a bridge in Louisiana. Soon after he started, the crew superintendent began to subject him to almost-daily verbal and physical harassment because he did not conform to the superintendent’s view of how a man should act. The superintendent called the employee names such as “faggot” and “princess,” which the superintendent claimed were prompted in part by the employee’s use of Wet Ones instead of toilet paper, which was viewed as “kind of gay” and “feminine.” In addition to the comments, the superintendent mimicked sexual acts, coming up behind the employee when he was bent over and pretending to “hump” him. He also exposed his genitals. The employee complained to the crew foreman several times and complained to the superintendent’s supervisor. Afterward, he was sent home for three days without pay. Although that supervisor did a limited investigation, he concluded there was no sexual harassment. The employee was not returned to his worksite.

Prior litigation. The EEOC brought an enforcement action on his behalf, claiming sexual harassment based on a gender stereotype and retaliation. The jury returned a verdict for the employee on the sexual harassment claim, awarding him $201,000 in compensatory damages and $250,000 in punitive damages, which were reduced to the statutory cap. The employer filed a motion for judgment as a matter of law, arguing that gender stereotyping is not a basis for a same-sex harassment claim under the Supreme Court’s decision in Oncale v Sundowner Offshore Services, Inc. The employer’s motion was denied. On appeal, a Fifth Circuit panel then ruled that the superintendent’s abuse did not constitute same-sex discrimination under Title VII and vacated the district court’s judgment.

“Because of . . . sex.” Reviewing the issue en banc, the Fifth Circuit has now upheld the jury verdict. The court noted that the most critical issues were whether the superintendent harassed the employee “because of” sex and whether the harassment was severe or pervasive. As to the first issue, the appeals court pointed to the Supreme Court’s decision in Price Waterhouse v Hopkins, noting that a plaintiff may rely on gender-stereotyping evidence to show that discrimination occurred “because of . . . sex” under Title VII. It then pointed out that in Oncale the High Court held that nothing in Title VII bars a gender bias claim just because the alleged wrongdoer is the same gender as the plaintiff, though the plaintiff must prove that the discrimination occurred because of sex.

The Oncale decision set forth three evidentiary paths for proving harassment was because of sex, including: (1) that the harasser was homosexual and motivated by sexual desire; (2) that the harassment was framed in such sex-specific and derogatory terms that it was clear the harasser was motivated by general hostility to the presence of a particular gender in the workplace; and (3) direct comparative evidence of how the harasser treated members of both sexes in a mixed-sex workplace. Although the situation here did not fit within those scenarios, the Fifth Circuit found the Oncale categories to be illustrative, not exhaustive, in nature. Thus, the EEOC could rely on evidence that the superintendent viewed the employee as “insufficiently masculine” to prove its claim.

In determining whether there was sufficient evidence to support the jury’s finding that the harassment was because of sex, the focus was on the harasser’s subjective perception of the employee, explained the court. Here, there was evidence the superintendent thought the employee was not a “manly-enough man and taunted him tirelessly” with sex-based epithets. Indeed, he admitted the comments were directed at the employee’s masculinity. For example, he believed the employee’s use of Wet Ones instead of toilet paper was something girls do but men should not. He also mimicked sexual acts, approaching the employee from behind to “hump” him two to three times a week, and exposed his genitals, suggesting he would put his penis in the employee’s mouth. Viewing the record as a whole, the appeals court could not say that no reasonable juror would have found that the employee suffered harassment because of his sex.

Severity. Likewise, the court found sufficient evidence to support the jury’s finding that the harassment was sufficiently severe or pervasive to alter the terms and conditions of the employment. The employee testified that he was the unique and constant target of the superintendent’s abuse, and the superintendent conceded that called only the employee “queer.” Together with evidence of the repeated humping, reference to oral sex, and other alleged harassment, this was enough to uphold the jury’s conclusion.

Ellerth/Faragher. The jury rejected the employer’s Ellerth/Faragher defense, finding it satisfied neither element. Affirming, the court noted that, while the employer had a broad nondiscrimination policy, it offered no specific guidance on sexual harassment. Indeed, its workers were not even aware of the policy. The court also noted that the policy offered no instructions on how to assert or investigate harassment complaints and the company failed to provide supervisors with any guidance on the issue. Beyond the policy failures, in response to the employee’s complaint in this case, the supervisor engaged in what could reasonably be viewed as a “belated and cursory twenty-minute investigation, along with arguably poor treatment of the alleged victim.” The court contrasted this to the investigation of the employee’s other allegation — that the superintendent misused funds — which resulted in hiring a private detective who spent 84.75 hours investigating and produced two reports. Moreover, the employer arguably failed to punish the harasser, who testified that he never received any “write-up” for his treatment of the employee. For these reasons, the Ellerth/Faragher defense was not available.

Remedies, damages. Although affirming the jury’s conclusion that the employer engaged in intentional discrimination, the court reversed on the award of punitive damages because the EEOC could not meet the higher burden of showing that the employer discriminated “in the face of a perceived risk” that its actions would “violate federal law.” The investigating supervisor’s understanding was that sexual harassment was illegal only if it involved “unwanted advances” or “sexual desire.” Furthermore, the superintendent testified that he thought same-sex harassment only happens where a male supervisor abuses a homosexual employee, and the EEOC offered nothing to rebut that testimony. For these reasons, the appeals court overturned the punitive damages award.

Because it was unclear whether the district court would have awarded the entire $201,000 in compensatory damages absent the statutory damages cap (which it applied in view of the punitive damages), the case was remanded to determine compensatory damages. As to injunctive relief, the district court had found that the employer failed to show, by clear and convincing evidence, that no future violations of Title VII were reasonably likely to occur. Considering the evidence, the appeals court agreed and affirmed the issuance and content of the injunction.

Judge Jolly dissenting. Judge Jolly wrote one dissent, joined by Judges Jones, Smith, DeMoss, Clement, and Owen, asserting that the EEOC failed to proffer a basis for inferring discriminatory intent based on the employee’s gender. Judge Jolly noted that the standard for proving harassment in same-sex suits is more demanding than with opposite sex claims and that, while the EEOC premised its suit on the claim that the harasser subjectively believed the employee was not “manly,” the only evidence was his use of Wet Ones. There was no evidence that the employee in anyway failed objectively to conform to “male gender norms.” Because the harasser did not consider the victim unmanly and treated the other workers with similar disrespect, and this was an all-male workplace where rowdy language was commonplace, the dissent would find the case outside the purview of Title VII.

Judge Jones dissenting. In a second dissenting opinion, Judge Jones reasoned that “sex talk doesn’t always mean that sex is involved” and that the conduct here was boorish and juvenile but not “because of” sex. She suggested the majority had adopted a “disturbing proposition” that to avoid Title VII liability, employers must purge the workplace of all speech and gestures that might in any way be viewed as tokens of sex discrimination (she included an “Etiquette for Ironworkers” as an illustration). Her dissent also asserted that “in a same-sex case like this one, it makes no sense at all to affirm a verdict that a heterosexual male ‘discriminated against’ another heterosexual male by calling him names, which both know not to be true by conduct or appearance. Name-calling may be bullying, but it isn’t discrimination because the victim is a male.” As to the Ellerth/Faragher defense, Judge Jones would have found that the employer satisfied both prongs.

Judge Smith dissenting. The third dissenting opinion, penned by Judge Smith, stated the belief that the majority had, with the best of intentions, taken “a deep bow at the altar of the twin idols of political correctness and social engineering.” Judge Smith also expressed concern that the EEOC’s position, and in large part the majority’s opinion, would “emasculate the employment-at-will doctrine,” enlarge the kinds of supervisor statements that employees can use to claim damages, and lead to additional grounds for suit. Judge Smith agreed with Judge Jones’ that the majority opinion “portends a government-compelled workplace speech code.”

Majority responds. In a footnote, the majority opinion addressed the dissent, stating that this case was not — as Judge Jones’s dissent suggested — about vulgar speech in the workplace, nor did the majority impose a government-compelled workplace speech code. Indeed, it appeared to the majority that both Judge Jolly’s dissent and Judge Jones’s dissent either ignored the evidence or construed it against the jury verdict. In the majority’s view, the evidence here “extends far beyond isolated insults and occasional horseplay,” and the court must thus defer to the jury’s finding that it rose to the level of sexual harassment.

Plaintiffs’ counsel reacts. David Wachtel, of the Washington, D.C., plaintiffs’ firm Bernabei & Wachtel, was not surprised by the decision. When asked if the majority had expanded the view of what would be considered “because of” sex in same-sex cases beyond what the Oncale Court envisioned, he noted that the court here was not the first to find the Oncale categories non-exclusive and that gender stereotyping could be a fourth category. In his view, “Boh Brothers is an expansion of Oncale, but not unprecedented or unexpected.”

Asked about the potential impact of Boh Brothers, Wachtel stated: “The case points to a more realistic analysis of what it means to apply gender stereotypes. There are a lot of different characteristics that different people think are stereotypically male or stereotypically female. Earlier, successful cases were brought in situations where the plaintiff seemed to fall far outside very conventional stereotypes in many ways: the way the plaintiff walked, talked, dressed or carried trays. Boh Brothers is different and better reflects this complexity — what people really think about when they think about gender.”

Responding to the dissenting opinions, Wachtel noted that this case went beyond mere foul language and included repeated simulated sexual intercourse and the harasser repeatedly exposing his own genitals. “The majority holding comes from very basic principles: First, words used and deeds done are evidence of intent.  The fact that the employee was branded with terms that can mean ‘feminine’ was significant evidence that the harasser was acting because of sex stereotyping.  The dissenters missed this. 

“Second, whether harassment is because of sex depends on the mind of the harasser.  Because different people have different views of masculinity, the results in cases will vary, and employees should not be required to produce evidence that they are not manly or womanly in some objective sense.”

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