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Same-sex harassment case involving gender stereotyping can proceed


A plaintiff can successfully pursue a same-sex harassment case where gender stereotyping is involved, even when neither the alleged harasser nor victim is homosexual, said a divided en banc appellate court in reversing a ruling by an appellate panel.

Kerry Woods, a male construction worker for New Orleans-based Boh Brothers Construction Co. L.L.C. who was assigned to the maintenance crew for the Twin Spans bridge between New Orleans and Slidell, La., claimed that crew superintendent Charles Wolfe engaged in same-sex harassment against him, including by simulating anal intercourse with him and using foul language, according to Friday's ruling by the 5th U.S. Circuit Court of Appeals in New Orleans in Equal Employment Opportunity Commission v. Boh Brothers Construction Co. L.L.C.

The alleged harassment was provoked by Mr. Woods' use of wet wipes instead of toilet paper, which Mr. Wolfe views as “kind of gay” and “feminine,” according to the ruling.

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 in violation of Title VII of the Civil Rights Act of 1964 because of his removal from his original job.

A U.S. District Court jury in New Orleans issued a verdict in Boh Brothers' favor on the retaliation claim, but on the sexual harassment claim awarded Mr. Woods $201,000 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.

A unanimous three-judge panel of the 5th Circuit vacated the award. But the en banc court disagreed with the panel in a 10-6 ruling.

In its ruling, the appellate court cited the U.S. Supreme Court’s 1989 Price Waterhouse v. Hopkins decision in which the high court held that a plaintiff can rely on gender-stereotyping evidence to show that discrimination occurred; and the Supreme Court’s 1998 ruling in Oncale v. Sundowner, in which it held that discrimination charges can be made when the plaintiff and defendant are of the same sex.

“In sum, nothing in Oncale overturns or otherwise upsets the court’s holding in Price Waterhouse: a plaintiff may establish a sexual harassment claim with evidence of sex-stereotyping. Thus, the EEOC may rely on evidence that Wolfe viewed Woods as insufficiently masculine to prove its Title VII claim.”

“There is enough evidence to support the jury’s conclusion that Wolfe harassed Woods because of sex,” said the majority ruling. “Specifically, the EEOC offered evidence that Wolfe, the crew superintendent, thought that Woods was not a manly enough man and taunted him tirelessly.”

The court also held the harassment was severe and pervasive as a matter of law. “Wolfe hurled raw sex-based epithets uniquely at Woods two to three times a day,” said the court, in upholding the Title VII claim.

It upheld dismissal of the punitive damages award, however, holding that Boh Brothers “did not subjectively perceive a risk of violation of federal law.”

The case was remanded to the District Court to consider whether the evidence was sufficient to support the jury’s $201,000 compensatory damages award.

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