En Banc Panel of 5th Circuit Supports Verdict of Same-Sex Harassment

The case is EEOC v. Boh Brothers, decided by a 10-6 vote by an en banc panel of the 5th Circuit on 9/27/13 [2013 U.S. App. LEXIS 19867]. The facts in this case are clearly reprehensible. A male supervisor (Wolfe) of an all-male construction site team subjected one of the crew members (Woods) with a daily barrage of verbal and physical harassment based on his perceptions of Woods lack of “manliness” (all based on Wolfe’s observation that Woods used wet wipes instead of toilet paper when using the toilet). The verbal abuse and physical harassment was atrocious (read the case). However, the question still remained as to whether they were “because of sex”, an edict expressed by Justice Scalia in the Supreme Court’s unanimous ruling in Oncale v. Sundowner (1998) [523 U.S. 75]. A jury found for Woods and awarded $201,000 in compensatory damages and $250,000 in punitive damages. The compensatory damages were reduced to $50,000 to bring the total of compensatory and punitive damages to the $300,000 statutory limit. A three-judge panel of the 5th Circuit overturned the jury’s findings before the en banc panel reheard the appeal and ruled in favor of woods. Issues still remain regarding the monetary awards, but the main focus for our purposes is on the same-sex ruling.

The Oncale ruling was discussed in an alert dated 5/9/12 in a same-sex harassment case among females in which three factors for proving same-sex harassment outlined by Scalia were summarized. Accordingly, the plaintiff must provide:

(1) “credible evidence that the harasser was homosexual"; (2) that the harasser was "motivated by general hostility to the presence of women in the workplace”; or (3) “direct, comparative evidence about how the alleged harasser treated members of both sexes [differently] in a mixed-sex workplace.

The 10 judges in the majority ruled that Wolfe’s behavior was based on sex, and did so based on gender stereotyping evidence. The ruling was based on the Supreme Court’s ruling in Price Waterhouse v. Hopkins (1989) [490 U.S. 228] in which Hopkins was treated with a barrage of stereotypical language such as the suggestion that she was aggressive, needed to go to charm school, and to "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." The 10-judge majority ruled there was nothing in the Oncale ruling to disturb the reasoning in the Hopkins case.

Ultimately, the 10-judge majority came to three rulings. First, Wolfe’s atrocious behavior was sufficiently severe and pervasive to constitute hostile harassment, and the gender stereotyping evidence was sufficient to pass the “because of sex” standard. Second, after Woods complained, Boh Brother’s actions were deemed insufficient for an affirmative defense (that they took adequate measures to prevent or quickly correct the harassment by Wolfe). However, third, the majority overturned on punitive damages, ruling that the EEOC failed to prove that Boh Brothers acted with "with malice or with reckless indifference to the federally protected rights of an aggrieved individual." Could have fooled me.

For its part, the six dissenting judges agreed the behavior was atrocious, but nevertheless argued that Title VII is not a “civility” statute, and there was insufficient evidence to prove that Wolfe’s actions were because of sex. In the words of Judge Edith H. Jones, one of the dissenters:

The verdict for Woods cannot be justified simply by adding Price Waterhouse's plurality theory of "gender stereotyping" on top of Oncale. Price Waterhouse has become the talisman for claims of gender stereotyping. I do not dispute that other circuits have recognized this as a specific form of sexual harassment discrimination under Title VII. It is important to recall, though, that Price Waterhouse dealt with a concrete adverse employment action, the denial of partnership in an accounting firm, and the partners evaluated the plaintiff based on well-known indicia of the stereotyping of female appearance and behavior. Their overt stereotyping was evidence of a motivation to discriminate against the plaintiff because she was a non-stereotypical female. Here, unlike in Price Waterhouse, there is no overt stereotyping--unless epithets like "princess," "fairy," and "queer" used among avowedly heterosexual men may be inferred to connote gender stereotyping.

In other words, the gender stereotyping in Hopkins occurred in the context of a charge of failure to promote, whereas the current case involved no such adverse actions. This raises an interesting question as to whether the gender stereotyping evidence absent an adverse employment decision can support a same-sex harassment charge. I don’t think that’s what Scalia had in mind when he penned his “because of sex” edict, so it remains a viable issue for the Supreme Court to weigh in on. In the meantime, I would say to employers that regardless of how this issue would be decided, don’t let your babies grow up to be wolves.

by Art Gutman, Ph.D., Professor, Florida Institute of Technology

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