In another same-sex harassment opinion, the Fifth Circuit reversed a substantial jury verdict in favor of a steel worker who claimed he was subjected to unlawful sexual harassment by his same-sex supervisor.

Woods was employed as an ironworker for the company in 2005. In 2006 he was assigned to work on a crew responsible for repairing a bridge damaged during Hurricane Katrina. Woods’ crew superintendent (Wolfe) subjected him to a number of “raw homophobic epithets and lewd gestures.” For example, the supervisor referred to Woods by name like “faggot” and princess”; approached him from behind while Woods was bent over and simulated sex acts; and exposed himself on more than one occasion. 

While Woods was being investigated for an unrelated work rule violation, he reported the supervisor’s conduct to the supervisor’s boss. During the pendency of the resulting investigation, Woods was sent home without pay for three days (whether as punishment for the work rule violation or to allow the company to find Woods a new job assignment was undetermined). The complaint was investigated, and while the supervisor’s conduct was deemed to be unprofessional, it was not concluded to be unlawful sexual harassment.

When Woods was removed from the bridge maintenance crew and later laid off, he filed a charge with the EEOC. The EEOC ultimately brought suit on Woods’ behalf. The jury awarded Woods $200,000 in compensatory damages and $250,000 in punitive damages which were reduced to the Title VII damage caps.

On appeal, the Court evaluated the circumstances where a plaintiff can make out a same-sex sexual harassment claim based on the theory of sex stereotyping.  Acknowledging the unprofessional, crass and boorish behavior, the Fifth Circuit noted that there was an abundance of evidence that “Wolfe [was] a world-class trash talker and the master of vulgarity in an environment where these characteristics abound.”  Notwithstanding Wolfe’s inappropriate behavior, the Court’s analysis in a same-sex stereotyping harassment case mandates that the plaintiff act in a manner inconsistent with his gender. Of apparent importance to the Court’s decision was the supervisor’s testimony that he did not view the plaintiff as feminine. Moreover, except for the evidence that the plaintiff used Wet Ones in the restroom, there was no evidence that Woods acted in an overtly feminine manner. In contrast, there was evidence that the harasser was an equal opportunity harasser and the workplace was generally and rough and wild environment. As the court observed: 

The record further shows that, although Woods may have been Wolfe’s primary target, he was by no means his only target. Nor was Wolfe the sole offender. To the contrary, misogynistic and homophobic epithets were bandied about routinely among crew members, and the recipients, Woods not excepted, reciprocated with like vulgarity.

While expressly reserving the issue of whether a sex stereotyping theory of same-sex harassment is cognizable in the Fifth Circuit, the Court held that a “plaintiff may not recover based on nonconformance to gender stereotypes unless the plaintiff conforms to nonconformance gender stereotypes.” Because the only evidence that Woods’ failed to conform to masculine stereotypes was his use of Wet Ones, the Fifth Circuit reversed the judgment in favor of the employee.

You can download a full copy of EEOC v. BOH Brothers Construction Company LLC here.

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