Under a consent judgment in EEOC v. Boh Brothers Construction Co. LLC, Boh Bros. Construction Co. agreed to pay $125,000 in compensatory damages to a former employee in a same-sex discrimination case brought by EEOC. The original suit was filed in 2009 in the Eastern District of Louisiana. New Orleans-based Boh Bros. is a major construction company that operates in the New Orleans and Gulf South areas. The suit charged that a male company supervisor harassed a male ironworker with verbal abuse and taunting gestures of a sexual nature. The supervisor admitted that he harassed the ironworker because he thought the employee was feminine and did not conform to the supervisor’s gender stereotype of “rough ironworkers”. A jury in district court found that Boh Bros. violated Title VII by permitting hostile work environment sexual harassment. Boh Bros. appealed the district court’s ruling. A three judge panel of the Fifth Circuit Court of Appeals reversed the jury verdict. Noting that there was no evidence that the ironworker was homosexual or effeminate, the panel found that the evidence did not establish that Boh Bros. had harassed the ironworker “because of sex”, which is the standard under Title VII of the Civil Rights Act.
The EEOC, noting that this interpretation of Title VII conflicts with Supreme Court law asked the full en banc Fifth Circuit Court to rehear the case. (The Supreme Court recognized that the stereotyping of gender norms in the workplace could constitute actionable Title VII discrimination in Price Waterhouse v. Hopkins, 1989.) The en banc Fifth Circuit agreed to rehear the case and heard arguments on rehearing in May 2013. A 10- judge majority of the deeply divided 16 judge court concluded that EEOC could use evidence that Boh Bros. supervisor viewed the ironworker and alleged harassment victim as “insufficiently masculine” to make its Title VII claim. The majority held that harassment “because of sex” is based on lack of conformity with gender stereotypes. The issue is whether the harasser considered the victim to deviate from gender stereotypes, and not whether the victim fails in fact to conform to those stereotypes. What mattered was that the supervisor saw the ironworker as “unmanly” – not whether the ironwork was actually “feminine” in some objective sense. The case was remanded to the District Court for further proceedings, including setting the proper amount of emotional damages in light of the appellate decision. The parties thereafter reached an agreement for consent judgment.
Reprinted with permission from the Personnel Testing Council of Metropolitan Washington.