Fifth Circuit Grants Rehearing in a Same-Sex Harassment Case


The Fifth Circuit announced that it will rehear a same-sex harassment case en banc—meaning all the justices will hear the case. The case, EEOC v. Boh Brothers Construction Co., deals with whether a plaintiff can establish gender discrimination based solely on sexual stereotyping. The complainant, Kerry Woods (by and through the EEOC), alleged that he was subjected to harassment by a crew superintendent during his job as an ironworker for Boh Brothers. The superintendent in question, Chuck Wolfe, called Woods names such as “f*****” and “princess.” It was further alleged that Wolfe would approach Woods from behind and simulate sexual intercourse with him while Woods was bent over to perform job duties.

In its original decision, the panel of 5th Circuit justices determined that Wolfe had not harassed Woods based upon “nonconformance to gender stereotypes,” but, rather, the banter and foul humor were simply part of life on a construction crew. The 5th Circuit reviewed the facts and determined that there was insufficient evidence to show that Woods failed to conform to gender stereotypes—a/k/a there was insufficient evidence that he acted feminine. The only evidence, according to the court, was that Woods used Wet Ones instead of toilet paper. Accordingly, the court held that there was insufficient evidence that Wolfe “acted on the basis of gender” in his treatment of Woods.

Now that the 5th Circuit has agreed to revisit the decision en banc, the court will again evaluate when “sexual stereotyping” can provide an actionable claim under Title VII. This “sexual stereotyping” theory stems from the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), in which a female plaintiff succeeded in arguing that she had been discriminated against because she failed to conform to female gender stereotypes. At the rehearing, Woods must point to sufficient evidence to show that Wolfe’s actions were focused on him because he did not conform to male stereotypes.

This case could have important implications for gender discrimination cases in the 5th Circuit’s geographical area (which includes Texas). The EEOC has shown that it intends to fight on behalf of homosexuals, transsexuals, and others who fail to conform to gender stereotypes. This case will likely provide some information on the limits of the EEOC’s power in this regard.

This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.



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