Ironworker Wins Sex Harassment Suit Against Same-Sex Boss
The 5th U.S. Circuit Court of Appeals on Sept. 30 reinstated a jury verdict finding that a male boss was liable for sex harassment based on his treatment of a male employee who the boss thought did not conform to gender stereotypes of a straight man.
Ironworkers Don’t Do That
Kerry Woods, an ironworker on the I-10 Twin Span bridge project over Lake Pontchartrain near New Orleans, lodged his complaint in 2006. In his statement to the EEOC, Woods claimed his boss, Chuck Wolfe of Boh Bros. Construction Co., harassed him verbally and repeatedly exposed himself.
Wolfe targeted Woods with taunts such as “pu–y,” “princess,” and “fa–ot,” because he found him effeminate, and he would simulate anal intercourse on Woods when he would bend over with his back turned to his supervisor, according to the opinion.
Wolfe told the EEOC in an interview that he thought Woods’ use of Wet Ones instead of toilet paper was especially offensive as it was something girls did. “To bring Wet Ones to work to wipe your ass, you damn sure don’t sit in front of a bunch of iron workers and tell them about it,” Wolfe said. “You keep that to yourself if in fact that’s what you do.”
A federal jury in March 2011 agreed with the EEOC that Wolfe had sexually harassed Woods, awarding him $451,000. But a three-judge panel of the 5th Circuit overturned that verdict, finding that the employer had not harassed Woods “because of sex” – the standard under Title VII of the 1964 Civil Rights Act.
The EEOC appealed to the full 5th Circuit, which said the panel got it wrong – there was plenty of evidence to support the jury’s finding that Wolfe harassed Woods based on his perception of Woods’ sex. The case was sent back to the trial court for a reassessment of damages.
Same-sex harassment doesn’t have to be homosexual, of course; it can be based on gender stereotyping, and this case establishes that that stereotyping doesn’t even have to be correct.
Shouldn’t Have to Prove the Stereotype
“[T]he relevant legal issue is not whether the harassment victim was objectively an ‘effeminate’/non-traditional male, as is common in ‘stereotyping’ cases, but whether the harasser subjectively perceived the employee as not meeting conventional gendered standards of behavior,” explains Paul W. Mollica, a lawyer with Outten & Golden in Chicago.
The court said that plaintiffs who are subjected to gender stereotyping harassment don’t have to prove they are in fact what the harasser perceives them to be: Woods didn’t have to show he was effeminate to prove he was harassed “because of his sex” (with his “sex” being perceived as effeminate or gay in this case).
“[T]he issue is whether the harasser considered the victim to deviate from gender stereotypes, and not whether the victim fails in fact to conform to those stereotypes,” says the EEOC of the holding in a statement. “So, the court ruled, what mattered was that Wolfe saw Woods as unmanly – not whether Woods was actually ‘feminine’ in some objective sense.”
The case is important, explains Mollica, because it “clarify[ies] that a same-sex harassment claim need not be channeled into some narrow category (such as same-sex sexual attraction) to constitute a Title VII violation.”
Policies Will Change
As a result of this ruling, things will definitely change in the states covered by the 5th Circuit – Louisiana, Mississippi and Texas. Employers will have to direct their sex harassment policies to go beyond typical actions like propositioning and vulgar sex talk, says Mollica.
Those policies now “must include bullying of co-workers who are seen as not behaving sufficiently masculine or feminine in the workplace,” he says. “Many harassment policies, I suspect, have not been updated in years and will not give employees or managers the tools to correct and prevent such behavior.”
He notes that employers in “more progressive jurisdictions that explicitly include ‘gender identity’ as a protected classification . . . may already be ahead of the curve and can serve as a model to others.”