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eLABORate: Fifth Circuit Says Gender Stereotyping Evidence Can Be Used to Establish a Same-Sex Harassment Claim

October 02, 2013

On September 27, 2013, in an en banc ruling, a 10-judge majority of a bitterly divided sixteen-judge Fifth Circuit Court of Appeals held that the EEOC could establish a same-sex harassment claim with evidence of gender stereotyping in the form of sexually charged taunting directed at a male employee by his male supervisor. EEOC v. Boh Bros. Constr. Co., Case No.: 11-30770, 2013 WL 5420320 (5th Cir. Sept. 27, 2013).

In 2007, the employee filed a charge with the EEOC alleging sexual harassment stemming from the conduct of his male supervisor, who oversaw an all-male workforce on an ironworker construction site. The supervisor purportedly was lewd and vulgar to the employee on a daily basis, including instances of exposing his genitals to the employee while urinating, simulating anal intercourse whenever the employee bent over, and using homophobic slurs to refer to the employee. Upon completion of the administrative process, the EEOC brought an enforcement action on the employee’s behalf and, following a three-day jury trial, obtained a $300,000 verdict in favor of the employee (as reduced by the district court to the statutory damages cap).

The employer appealed the verdict to the Fifth Circuit Court of Appeals. Initially, a Fifth Circuit panel tossed out the trial verdict for the employee, finding that there was insufficient evidence to establish that the supervisor had discriminated against the employee because of his gender. The EEOC subsequently sought and obtained an en banc review. Upon review, the en banc majority disagreed with the panel’s decision to overturn the jury verdict.

At the outset of the opinion, the court acknowledged the viability of claims based on gender stereotyping, tracing its origin back to the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).   Following the Supreme Court’s pronouncement, numerous courts, including the Fifth Circuit, recognized that a plaintiff can satisfy Title VII’s requirements to demonstrate unlawful sex discrimination with evidence of a plaintiff’s perceived failure to conform to traditional gender stereotypes. Confluent with this analysis, the court also examined the Supreme Court’s subsequent pronouncement in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 78 (1998), that same-sex harassment or discrimination was actionable under Title VII, and need not conform to traditional notions of opposite-sex harassment.

Against this backdrop, the court explained that claims of a same-sex hostile work environment are typically analyzed under a two-step inquiry. First, the court considers whether the alleged conduct was sex discrimination and, second, the court evaluates whether the conduct meets the standard for a hostile work environment claim. To this end, the EEOC had alleged that the employee was discriminated against for not being “manly” enough in the eyes of his supervisor. The court agreed with the EEOC that it could rely on evidence that the supervisor viewed the employee as “insufficiently” masculine to prove its Title VII claim, thus affirming the use of same-sex gender stereotyping evidence.   The court further noted that there was no allegation that either the supervisor or employee was homosexual.

Establishing the legal viability of the employee’s claims, the court then turned to the particulars of the alleged harassment to determine whether the employee was harassed because of sex. During trial, the EEOC had offered evidence that the supervisor taunted the employee tirelessly and called the employee sex-based epithets, often two to three times per day, which the supervisor admitted were directed at the employee’s sexuality. The evidence in the case, however, also consisted of physical acts of flashing and humping at the worksite, consistently aimed at the employee. Accordingly, the majority held that there was enough evidence to support the jury’s conclusion that the conduct was sufficiently severe or pervasive to support Title VII liability. The court, however, reversed the jury’s decision to award punitive damages, reasoning that the employer’s ignorance that its conduct was unlawful prevented a finding that it met the malice or reckless indifference standard for a punitive damage award—epitomized by the supervisor’s admission that he did not understand that conduct unmotivated by sexual desire could constitute sexual harassment.

The majority’s opinion, however, was opposed by six dissenting judges, resulting in four dissenting opinions that serve as an outline for future challenges to application or extension of the majority’s holding. Generally, the dissenting opinions explained that proving same-sex sexual harassment claims is more demanding and cumbersome than traditional opposite-sex sexual harassment claims, and noted the majority’s apparent failure to acknowledge this heightened standard or the unique (and admittedly bawdy) dynamic of the workplace at issue. Additionally, the dissenting opinions were critical of the majority’s finding that the supervisor had acted with discriminatory animus toward the employee “because of” the employee’s sex, noting that the supervisor did not actually consider the employee to be unmanly and the supervisor treated the employee with the same disrespect with which he treated his other coworkers and subordinates. One particular dissent noted that the only way for courts or juries to identify that a same-sex harasser is acting “because of” the victim’s sex is for the victim visibly not to conform to gender stereotypes, which was not an issue with the employee and supervisor.

The opinion is also notable for its comprehensive rejection of the employer’s Faragher/Ellerth defense. The court took a critical eye to the employer’s “EEO Statement.” Based on findings that the employer’s anti-harassment policies were too generic, were not properly implemented, were inadequately distributed to employees, and offered no instructions regarding how to assert or investigate harassment complaints, the court found it insufficient to establish that the employer had exercised reasonable care to prevent and promptly correct sexually harassing behavior.   This finding was buttressed by the supervisor’s lack of knowledge regarding sexual harassment and evidence that the he had never received formal employment-discrimination training. Ironically, the lack of employee education and ignorance that shielded the employer from punitive damages was also responsible for defeating the employer’s Faragher/Ellerth defense.

Although same-sex harassment has been judicially recognized for over a decade, this opinion links the concept of unlawful gender stereotyping directly to same-sex harassment and reminds employers that same-sex taunting can be actionable. Moreover, the court noted that there was no evidence that either the employee or supervisor were homosexual, nor was evidence presented that the conduct at issue was motivated by sexual desire. The court’s opinion cautions that notions of sexual harassment based solely on sexual desire or exclusively between members of the opposite sex are misplaced and can increase risks for employers who are not aware that the prohibitions can be broader. Employers should review their anti-discrimination and anti-harassment policies in light of this opinion, and stay tuned for further developments in this area.