In a 10-6 en banc decision, the United States Court of Appeals for the Fifth Circuit recently upheld a jury verdict in favor of a male construction worker who was sexually harassed by his male supervisor for “not being manly enough.” EEOC v. Boh Brothers, — WL — (5th Cir. September 27, 2013). The decision establishes that, at least in the Fifth Circuit, a plaintiff in a same-sex harassment case can use evidence of sex-based stereotyping to establish a viable claim.
The case involved an iron worker who was hired to repair Katrina Damage to the Twin Span Bridge in New Orleans. The worker’s supervisor observed him taking “Wet Wipes” into the bathroom and thereafter began daily harassing him for being “feminine” and “unmanly.” The harassment was both verbal and physical, and consisted of name calling, simulated sexual acts, and physical exposure. The EEOC brought suit on the worker’s behalf. The case went to trial and the jury returned a $300,000.00 verdict in the workers favor.
The primary issue on appeal was whether the supervisor’s lewd conduct constituted harassment “because of” sex under Title VII. The Fifth Circuit held that it did, invoking the U.S. Supreme Court’s two-decade-old decision in Prince Waterhouse v. Hopkins, 490 U.S. 228 (1989). The Fifth Circuit analogized the iron worker in Boh Brothers to the female accountant in Hopkins, who alleged she was passed over for promotion because her partners considered her to be “too macho.” The Fifth Circuit quoted this portion of the Supreme Court’s Hopkins opinion:
[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.
The Fifth Circuit rejected the employer’s argument that a subsequent Supreme Court decision–Oncale v. Sundower Oftschore Services, Inc.—limited the ways in which a plaintiff could prove same-sex harassment. The Fifth Circuit held that “nothing in Oncale overturns or otherwise upset’s the courts holding in Price Waterhouse: a plaintiff may establish a sexual harassment claim with evidence of sex-stereotyping.”
Having concluded that the EEOC could prove its claim with evidence of sex stereotyping, the Fifth Circuit found that sufficient evidence supported the jury verdict that the supervisor harassed the iron worker “because of” sex. It stated: “Viewing the record as a whole, a jury could view [the supervisor’s] behavior as an attempt to denigrate [the worker] because – at least in [the supervisor’s view – [the worker] fell outside of [his] manly-man stereotype. Thus, we cannot say that no reasonable juror could have found that [the worker] suffered harassment because of his sex.”
The decision arguably carves a broader path for plaintiffs alleging same-sex harassment. At least some courts had interpreted Oncale as limiting the manner in which a plaintiff could prove same-sex harassment to these three paths:
“…(1) [A] plaintiff may show that the harasser was homosexual and motivated by sexual desire; (2) a plaintiff may show that the harassment was framed ‘in such sex-specific and derogatory terms…as to make it clear that the harasser [was] motivated by general hostility to the presence’ of a particular gender in the workplace; and (3) a plaintiff may ‘offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.’”
Obviously, the iron worker’s claim did not fit within any of those three Oncale categories. Nevertheless, because the supervisor acted based on sex-based stereotypes, the Fifth Circuit found the claim meretricious.