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Should Courts Use Varying Standards for Sexual Harassment Based on Industry?

Construction

The United States Court of Appeals for the Fifth Circuit held that it is not “the business of the federal courts generally to clean up the language and conduct of construction sites” and held that an employer who exhibited lewd behavior that was sexual in nature was simply construction site vulgarity and trash talking in “an environment where these characteristics abound.” EEOC v. Boh Bros. Constr. Co., LLC, No. 11-30770 at 1-2 (5th Cir. Jul. 27, 2012) (vacating the judgment in EEOC v. Boh Bros. Constr. Co., LLC, 768 F. Supp. 2d 883 (E.D. La. 2011)).

Kerry Woods, an iron worker, alleged that Charles Wolfe, his former job superintendent, sexually harassed Woods in violation of Title VII under a theory of “gender stereotyping” and that his former employer, Boh Brothers Construction Company, LLC, knew of the harassment, failed to discipline Wolfe and retaliated against Woods for making a complaint.

This case is one of a growing area of lawsuits involving same-sex sexual harassment cases that are based on gender stereotyping. Wolfe did not claim his actions and comments were based on his belief that Woods was homosexual, but instead were made based on what Wolfe believed were effeminate traits exhibited by Woods.

The conduct Woods complained about included Wolfe showing Woods a picture of his buttocks, calling him “faggot,” standing behind Woods on the job site and simulating sexual acts with him, exposing himself to Woods numerous times and making oral sex comments to Woods.

Woods complained of the conduct to his employer who investigated the matter and reported that Wolfe’s behavior was inappropriate but was not considered to be sexual harassment.

To establish a claim for sexual harassment and a hostile work environment under Title VII, an employee must show (i) they are a member of a protected group; (ii) they were the victim of uninvited sexual harassment; (iii) the harassment was based on sex; (iv) the harassment affected a term, condition or privilege of the employee’s employment; and (v) must be sufficiently severe or pervasive to alter the conditions of the employee’s employment and create an abusive working environment.

The EEOC alleged on Woods’ behalf, that he was unlawfully harassed because he was not stereotypically masculine. The Fifth Circuit reversed the jury verdict that found in Woods’ favor and held that the evidence was insufficient to support the jury’s verdict that Woods was discriminated against because of sex, since little evidence was presented to show that Woods exuded non-stereotypically masculine behavior. The Court pointed out that “misogynistic and homophobic epithets were bandied about routinely among crew members, and the recipients, Woods not excepted, reciprocated with like vulgarity.”

It appears that this Court applied a more lenient standard to Boh Bros. and Wolfe because this was a construction site. Both the District Court and the Court of Appeals took a “hands off” approach and a “boys will be boys” mentality in this case because of the industry involved. However, it is hard to imagine that the judges would reach the same outcome if Woods was homosexual or if the complainant was female.

Any claim by an employee that he or she is being sexually harassed should always be taken seriously and fully investigated regardless of the gender of the complainant or alleged harasser and regardless of the sexual orientations of the parties involved.