In September 2013, in EEOC v. Boh Bros. Construction Co., the en banc Fifth Circuit Court of Appeals held 10–6 that same-sex sexual harassment in the workplace that is based on gender stereotyping is barred by Title VII of the 1964 Civil Rights Act. By virtue of this ruling by this conservative court, this is now the law in virtually every circuit.
Title VII prohibits employers with at least 15 employees from discriminating against an employee because of his or her sex. Under the gender stereotyping theory, approved by the Supreme Court in Price Waterhouse v. Hopkins (1989), the “because of” requirement is met if X discriminates against Y because X believes that Y does not dress, walk, talk, etc. as members of Y’s gender typically do.
In Boh Brothers, Woods, an iron worker in an all-male workplace, claimed that Wolfe, his supervisor, subjected him to verbal and physical harassment for months because he did not conform to Wolfe’s idea of how a man should act. Wolfe called him “pussy,” “princess,” and “faggot,” and several times, while Woods was bent over, Wolfe approached him from behind and simulated a sex act. Wolfe also exposed himself to Woods and said that he viewed Woods’ use of towelettes instead of toilet paper as "kind of gay" and "feminine." After Woods was laid off due to a lack of work, he filed a sexual harassment charge with the EEOC, which sued the company on his behalf. Woods won at trial, but a Fifth Circuit panel overturned the verdict based on insufficient evidence. The full court then agreed to hear the case en banc.
In 1986 the Supreme Court ruled that sexual harassment is a form of sex discrimination. In the 1998 case of Oncale v. Sundowner Offshore Services, Inc., which involved a male who had been abused by his all-male coworkers, the Court ruled that Title VII reaches same- as well as opposite-sex discrimination. The Oncale Court said that a plaintiff may make out a case of same-sex harassment by proving that his harasser was motivated by sexual desire, disliked the presence of the opposite sex in the workplace, or treated the sexes differently in a mixed-sex workplace. In Boh Brothers, the EEOC argued that these routes are not exclusive and that gender stereotyping is a fourth route that was available to Woods. The jury agreed, and after canvassing cases post-Price Waterhouse and Oncale, the appeals court did as well. The court also held that the trial record was replete with evidence that Wolfe acted as he did because he thought Woods was insufficiently manly.
Woods was neither homosexual nor perceived to be by Wolfe. Would it have made a difference if the facts had been otherwise? Title VII does not prohibit discrimination based on sexual orientation. In the 1990s, however, attorneys representing homosexual employees who were harassed by coworkers seized on the gender stereotyping theory as a way to assert a Title VII claim. They argued that if an employee is harassed due to his or her failure to conform to gender norms, Title VII is violated whether or not he or she is homosexual. Many courts have now adopted this approach or at least indicated that it would apply in an appropriate case.
Although the Boh Brothers court did not speculate on this issue, there are clues in what it did and didn’t say. Not only did it repeatedly cite cases from other circuits involving homosexual plaintiffs without distinguishing them, but it did not reserve judgment on the issue or add any other caveat. Although the courts in some of these cases did not apply the theory on the ground that the plaintiff had waived it by not raising it at trial, they stated that the plaintiff’s being gay would not bar its use. Courts in other cases applied the theory although the plaintiff was openly homosexual.
In some of the latter cases, courts had to engage in fine line-drawing to decide whether the victim was abused by his coworkers because they knew or suspected that he was gay, in which case no Title VII claim lies, or because they thought he did not conform to gender norms. Rene v. MGM Hotels, a 2002 en banc decision by a fractured Ninth Circuit Court of Appeals, is illustrative. The coworkers of Rene, an openly gay waiter, mocked him because of his voice and effeminate mannerisms and caressed him and poked him in the anus. A plurality of the court held that Rene proved sex discrimination based on the repeated sexual touching. Concurring in the judgment, some judges argued that the abuse, akin to that inflicted by Wolfe on Woods, involved gender stereotyping. The dissenting judges, by contrast, asserted that the depositions and trial testimony made it plain that Rene had no case because his coworkers acted because of his sexual orientation.
If Woods had been gay or if Wolfe believed he was, the jury, and then the appeals court, would have had to confront the same issue. Wolfe’s use of epithets like “faggot” and simulation of homosexual sex acts would have suggested that he acted based on sexual orientation, whereas his use of the words “pussy” and “princess” would have indicated gender stereotyping. Wolfe’s comment that Woods’ use of the towelettes suggested that he was “feminine” and “kind of gay” would have pointed in both directions.
There were two other important issues in Boh Brothers. To be actionable, harassment must be unwelcome and, viewed objectively, so severe or pervasive as to alter the conditions of one’s employment. The Supreme Court has stressed that Title VII is not a general workplace civility code and that simple teasing, offhand comments, sporadic use of offensive language, and occasional gender-related jokes will not support a Title VII claim. By contrast, discriminatory intimidation, ridicule, or other verbal or physical conduct may be sufficiently extreme to do so. Because of the nature of Wolfe’s abuse and the fact that Woods often complained of it and it occurred several times a day for several months, the court upheld the jury verdict that it was unwelcome, severe, and pervasive.
As for Boh Brothers’ liability, the Supreme Court has held that an employer is strictly liable for quid pro quo harassment, which involves a trade-off – sleep with me or you won’t be promoted – but may invoke a two-part defense in a hostile environment harassment case like this one. This defense asks if the employer acted reasonably to prevent or correct any harassment and if the plaintiff unreasonably failed to take advantage of any available corrective mechanism.
The company had a boilerplate anti-discrimination policy, but it did not cover harassment, illustrate what conduct is impermissible, or make it clear that conduct need not be motivated by sexual desire to be illegal. (Wolfe said that he was unaware of this.) Additionally, the company did not ensure that its employees knew of the policy or offer its supervisors training on how to deal with harassment complaints. The court also faulted the company’s cursory, 20-minute review of Woods’ complaint. In light of all of this, the court concluded that the first part of the test was not satisfied, thus obviating the need for it to consider the second part.
There are several takeaways from Boh Brothers and similar cases. First, employers must seek to eradicate harassment (or any form of discrimination) involving gender stereotyping. They should not make distinctions based on the sexual orientation of the victim or the gender of the harasser(s), for the theory appears to be available, given proper proof, without regard to the orientation or gender of any of the parties. Indeed, Oncale and Boh Brothers establish that sex discrimination can occur if the victim and his or her harasser(s) are the same sex. Employers must also be aware that harassment need not be motivated by sexual desire and that the issue is not whether the target did not conform to gender norms, but instead is whether the harasser thought that he or she didn’t.
Employers must have comprehensive, well-thought-out anti-discrimination/harassment policies that define and provide examples of illegal conduct, are communicated to employees, clarify how complaints are to be filed, and contain a sound resolution procedure. Then they must do more than post these policies on a wall and give lip service to enforcing them. Indeed, the Boh Brothers court stated that the company might have prevailed if had done more in this area.
Finally, employers must realize that courts are becoming less likely to buy the “It’s just horseplay” defense which has often carried the day in the past. They cannot afford to give short shrift to an allegation of gender stereotyping because they don’t want to have to deal with it, it sounds unrealistic, or the victim appears capable of handling it by him or herself; instead, they must carefully and objectively investigate all complaints. They must also not punish the complainant, as the cases reveal employers have done in an alarming number of instances.