Under Title VII, an unlawful employment practice is established
when an employee demonstrates that gender is a motivating factor
for an adverse employment action. Under that analysis, a
number of federal appellate courts have determined that adverse
treatment of an individual because he or she does not fit the
stereotypical characteristics of his or her gender may be a
violation of Title VII. However, the 5th U.S. Circuit Court
of Appeals recently side-stepped that trend and reversed a
jury's decision on the issue. EEOC v. Boh Brothers
Construction Co., LLC, 5th Circ., No. 11-30770, July 27,
2012. In that case, the Court reversed a substantial jury
verdict of actual and punitive damages in favor of Kerry Woods, a
male construction worker, and directed dismissal of his
claims.
Woods began working with Boh Brothers as an ironworker in November
of 2005. Beginning in early 2006, Woods was assigned to a
maintenance crew for the Twin Spans Bridge between New Orleans and
Slidell, Louisiana. The crew superintendent, Chuck Wolfe,
referred to Woods as "faggot" and princess,"
approached him from behind with lewd actions simulating sexual
conduct, and allegedly exposed himself to Woods on a number of
occasions. Although there was no evidence that either man was
homosexual or attracted to other men, it is undisputed that Woods
was "the primary and constant victim of Wolfe's offensive
abuse and harassment, much of it in the nature of sexual
vulgarity." Woods complained to his crew foreman about
Wolfe's behavior and remarks, but no action was taken on the
issue.
In November 2006, an inspection contractor notified Wolfe that
Woods had requested to view maintenance crew members' time
sheets, which at the time was a terminable offense. Wolfe
notified his own supervisor, Duckworth, of that possible policy
violation, also telling Duckworth that he "didn't care
for" Woods because Woods was "different" and
"didn't fit in" with the other crew members.
Duckworth met with Wolfe and Woods, at which time Woods complained
in detail about Wolfe's harassment. Woods was sent home
for three days without pay. After investigating Woods'
complaints, Duckworth determined that Wolfe's behavior,
although admittedly unprofessional, did not constitute sexual
harassment. Woods then was transferred to another crew, but
ultimately was laid off for "lack of work."
Woods filed discrimination charges with the EEOC, claiming sexual
harassment and retaliation. In 2009, the EEOC brought an
enforcement action in district court on Woods' behalf on both
claims. After a three-day trial, a jury found in Woods'
favor on the harassment claim, but in favor of the company on the
retaliation claim. Woods was awarded $200,000 in compensatory
damages and $250,000 in punitive damages. When the lower
court denied Boh Brothers' motion for judgment as a matter of
law, Boh Brothers appealed. The Fifth Circuit reversed that
denial, vacated the judgment in Woods' favor, and remanded the
matter for "entry of judgment dismissing the case."
Of particular interest is the fact that the Fifth Circuit skirted
the issue of whether gender stereotyping is a cognizable form of
same-sex harassment under Title VII by finding that there
wasn't enough evidence in the record to prove that Woods was
not stereotypically masculine. According to the court, unless
a plaintiff can prove that he does not conform to stereotypes, he
cannot succeed on the theory that he was treated differently
because of that nonconformance. The issue of whether the
Court took the jury's observations of Woods' demeanor and
characteristics into account in reaching its verdict in his favor
is not addressed in the Fifth Circuit's opinion.
What led to this decision is the Fifth Circuit's
differentiation between gender stereotyping and same-sex
harassment, and its unwillingness to conflate those two types of
actions into a single method of proving Title VII violation.
The Court first cited to the Supreme Court's 1998 decision in
Oncale v. Sundowner Offshore Services Inc., in which the Supreme
Court set forth the basis of same-sex behavior which violates Title
VII, which typically includes homosexual proposals of sexual
activity to a plaintiff or general hostility toward homosexuals in
the workplace. Woods' claims did not fall within those
categories since there was no evidence of homosexuality, and the
Fifth Circuit was unwilling to extend Oncale to cover claims of
general gender stereotyping. It then analyzed Woods'
claims under the Supreme Court's decision in Price Waterhouse
v. Hopkins, a 1989 decision in which the Supreme Court found that
an employer can be liable for adverse actions that are based on a
belief that an employee does not conform to a society's
expectations for that employee's gender. Because of the
dearth of evidence of Woods' non-conformance with gender
stereotype, and based on Wolfe's testimony that "he did
not view Woods as feminine," the Fifth Circuit found this case
in "sharp contrast" to Price Waterhouse, and declined to
find gender stereotyping here.
The line between gender stereotyping and discrimination
"because of sex" can be difficult to draw. However,
employers must recognize that an employer who takes an adverse
action against an individual because he or she does not fit within
sexual stereotypes may be engaging in sex discrimination if the
individual can prove that the discrimination would not have
occurred but for the individual's sex/non-conformance to
stereotype. If a company's disciplinary actions are meant
to punish or belittle non-compliance with gender stereotypes, the
actions may constitute a violation of Title VII's "because
of sex" provision.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.