Employment Law - Title VII - Fifth Circuit Holds Evidence of Sex Stereotyping Insufficient in Same-Sex Harassment Action
Title VII of the Civil Rights Act of 1964 (1) prohibits employers from discriminating against an employee "because of such individual's ... sex." (2) The Supreme Court has held that this prohibition extends to instances of workplace sexual harassment (3)--including "same-sex sexual harassment" (4)--and that it also bars employers from discriminating on the basis of "sex stereotypes." (5) By contrast, courts have repeatedly affirmed that "Title VII does not prohibit harassment or discrimination because of sexual orientation." (6) Over the years, lower courts have inconsistently handled cases that required them to determine the nature of the interplay between these various precedents. (7) Recently, in EEOC v. Boh Bros. Construction Co., (8) the Fifth Circuit considered allegations of sex stereotyping in a same-sex harassment action. (9) Avoiding the larger question of whether this theory of recovery is viable under Title VII, the court instead found the plaintiff's evidence insufficient to demonstrate that the employer had acted on the basis of an impermissible stereotype. (10) In doing so, the Fifth Circuit implicitly adopted a narrow reading of sex-stereotyping doctrine, which allowed it to sidestep the oft-cited concern that plaintiffs will use allegations of sex stereotyping "to 'bootstrap protection for sexual orientation into Title VII.'" (11) However, such a move limits the relief available to victims of sex stereotyping, a form of workplace discrimination considered unlawful under Supreme Court precedent. (12) Abridging Title VII's protections in this way is ultimately not necessary to address fears of "bootstrapping": the factual realities of same -sex harassment and a close reading of relevant case law demonstrate that the prohibition on sex stereotyping can be given its full effect in cases like Boh Bros. without constructively adding sexual orientation to Title VII's list of protected categories.
From 2005 to 2007, Kerry Woods was employed by Louisiana-based Boh Brothers Construction Company. (13) In January 2006, Woods began working as a member of an all-male maintenance crew repairing the damaged Twin Spans Bridge between New Orleans and Slidell, Louisiana. (14) Before long, crew superintendent Chuck Wolfe was harassing Woods on a regular basis: calling him names (such as "pussy," "faggot," "homo," "princess," and "queer"), (15) making fun of him for using "Wet Ones" anti-bacterial wipes in the bathroom, (16) "approach[ing] him from behind to simulate having sexual intercourse while [he] was bent over to perform job duties," and "expos[ing] himself to Woods numerous times." (17) The record included "no evidence that either man was ... homosexual." (18)
In November 2006, Woods was accused of an unrelated disciplinary infraction. (19) At a meeting with Wolfe and Wolfe's supervisor, Wayne Duckworth, "Woods complained in detail about Wolfe's harassment." (20) Afterward, Woods was "sent ... home for three days without pay" and was subsequently reassigned from the Twin Spans crew to a job at Boh Brothers' yard in New Orleans. (21) Following an investigation of Woods's claims, Duckworth ultimately determined that "Wolfe's behavior ... did not constitute sexual harassment." (22)
Woods filed an intake questionnaire with the Equal Employment Opportunity Commission (EEOC), claiming that Duckworth had fired him from the Twin Spans job and rehired him three days later "to work at a different Boh Brothers location." (23) Later, after being "laid off for lack of work," Woods filed a formal charge of discrimination with the EEOC, accusing Boh Brothers of sexual harassment and retaliation under Title VII (the latter on the basis of his reassignment). (24) In September 2009, the EEOC brought these claims against Boh Brothers on Woods's behalf in the United States District Court for the Eastern District of Louisiana. (25) After a three-day trial, the jury found for Woods on the sexual harassment claim and for Boh Brothers on the retaliation claim. …