Same-sex harassment award overturned by appeals court

NEW ORLEANS—A plaintiff cannot successfully pursue a same-sex harassment case when there is no evidence of non-stereotypical behavior, says a federal appellate court in overturning a jury's finding.

According to Friday's ruling by the 5th U.S. Circuit Court of Appeals in New Orleans in Equal Employment Opportunity Commission vs. Boh Brothers Construction Co. L.L.C., Kerry Woods, a male construction worker assigned to the maintenance crew for the Twin Spans bridge between New Orleans and Slidell, La., claimed that Charles Wolfe, a crew superintended for New Orleans-based Boh Brothers, engaged in same-sex harassment against him by “referring to him in raw homophobic epithets and lewd gestures.”

“There is no claim or evidence that either Woods or Wolfe is homosexual or effeminate,” said the ruling. “There is plenty of evidence that Wolfe is a world-class trash talker and the master of vulgarity in an environment where these characteristics abound.”

After Mr. Woods complained about Mr. Wolfe's harassment to a supervisor in November 2006, Mr. Woods was sent home for three days without pay for reasons that are unclear, and upon his return was hired at a different Boh Brothers site.

After he was laid off for lack of work in February 2007, Mr. Woods filed a discrimination charge with the EEOC, alleging sexual harassment and retaliation because of his removal from his original job.

A jury awarded Mr. Woods $200,000 in compensatory damages and $250,000 in punitive damages, with the former reduced to $50,000 because of a statutory damages cap. Boh Brothers appealed.

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“The EEOC's case depends on the proposition that sex stereotyping by a member of the same sex can constitute sexual harassment under Title VII. Its theory is that Wolfe harassed Woods because Woods did not, in Wolfe's view, conform to the male stereotype.”

The court said, however, “The only charge asserted by Wolfe that Woods was other than masculine” was Mr. Woods' use of antibacterial wipes when he went to the bathroom.

“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.”

The “evidence is insufficient to support the jury's verdict” that Mr. Woods was discriminated against because of sex, said the unanimous three-judge panel, in vacating the jury award.

Boh Brothers said in a statement, “While we agree with the 5th Circuit court's conclusion that this conduct never bordered on sexual harassment, as a company we were nonetheless embarrassed by the supervisor's conduct.

“This was not up to our standards for treating employees and will not be tolerated. After our investigation of the matter, the supervisor was given appropriate discipline. In the aftermath, we have taken steps to better train our entire workforce on appropriate behavior.

“Harassment is never acceptable and is not tolerated on our worksites. We have a 100-year history of treating our family of employees with respect, dignity and integrity. As such, we expect that employees will treat one another the same way, and we act swiftly and appropriately if we find this is not the case.”