New Fifth Circuit Case On Same Sex Gender Stereotyping Harassment

Mark Oberti writes:

On September 27, 2013, a deeply divided Fifth Circuit held that Title VII recognizes a same sex harassment claim based upon gender stereotyping, and found that the EEOC had presented sufficient evidence to support the jury’s verdict in its favor under such a theory. See EEOC v. Boh Bros. Const. Co., No. 11-30770 (Sept. 27, 2013). Boh Brothers’ supervisor on an all-male crew had severely harassed a subordinate male who was perceived as insufficiently “manly” because, among other reasons, he used Wet Ones instead of toilet paper. The EEOC sued and won a large verdict. A three judge panel reversed the verdict, holding that male on male harassment that lacked a clear sexual or sex-based motivation was not actionable under Title VII. The EEOC sought, and obtained, en banc review. This time, the EEOC won. The en banc majority of ten judges held that Title VII recognizes a same sex harassment claim based upon gender stereotyping (that the victim was harassed for failing to conform to traditional stereotypes associated with their gender), and found that the EEOC had presented sufficient evidence to support the jury’s verdict in its favor under such a theory. A six judge minority angrily and colorfully disagreed, even offering a mock policy for employers to distribute in light of this decision, that includes bans of “twerking” and poking fun at male coworkers for not “being able to eat a raw jalapeño.”

The impact of this decision could be huge. Many employers in the oil patch operate crews consisting of all (or almost all) males. Sometimes, those males engage in arguably inappropriate horseplay. This case opens up the real possibility of liability to employers for sexual harassment whenever that happens. To avoid this alarming predicament, employers should vigorously train all their employees on this topic, ensure their anti-harassment policies address such conduct, and have been effectively distributed, and take prompt and effective remedial action whenever such conduct occurs.

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