Fifth Circuit Court of Appeals Reinstates Same-Sex Harassment Verdict Against Boh Bros. Construction Co.

Court Says EEOC Proved Illegal Harassment Based on Gender Stereotypes

NEW ORLEANS - The U.S. Fifth Circuit Court of Appeals has restored a jury's finding from March 2011 that Boh Bros. Construction Co. illegally subjected an ironworker to severe or pervasive harassment based on gender stereotypes.

The U.S. Equal Employment Opportunity Commission (EEOC) filed the suit against Boh Bros. (EEOC v. Boh Bros. Construction Co., Civil Action No. 09-6460) in U.S. District Court for the Eastern District of Louisiana, charging that a superintendent, Chuck Wolfe, harassed Kerry Woods with verbal abuse, taunting gestures of a sexual nature, and exposing himself.  The harassment took place on the I-10 Twin Span project over Lake Pontchartrain between Slidell and New Orleans, La.  The EEOC presented evidence at trial that Woods's supervisor harassed him because he thought he was feminine and did not conform to the supervisor's gender stereotypes of a typical "rough ironworker."

In April 2012, a three-judge panel of the Fifth Circuit Court of Appeals (case number 11-30770) reversed the jury verdict, finding that the evidence did not establish that Boh Bros. had harassed Woods "because of sex," which is the standard under Title VII of the Civil Rights Act of 1964.  The EEOC asked the full en banc Fifth Circuit in September of 2012 to rehear the case.

In March of this year, the en banc Fifth Circuit agreed to rehear the case, which automatically vacated the panel's decision to overturn the jury verdict.  The full court heard arguments on rehearing in May 2013.

"We are gratified that the Fifth Circuit recognized 'the good common sense of the American people,' as the court put it, and reinstated the jury verdict," said EEOC General Counsel David Lopez.  "We agree with the Fifth Circuit that 'few institutions are as venerable as that of trial by jury.'"

Although numerous Courts of Appeals had decided that a gender stereotype theory may be used to prove illegal same-sex harassment, based on the U.S. Supreme Court decision in Price Waterhouse v. Hopkins, the Fifth Circuit had never directly addressed the issue before.  The 10-judge majority of the en banc Fifth Circuit held for the first time that harassment is "because of sex" if it is based on lack of conformity with gender stereotypes.  The Fifth Circuit also held that the 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.  So, the court ruled, what mattered was that Wolfe saw Woods as unmanly - not whether Woods was actually "feminine" in some objective sense.

"This is a very significant outcome to employees who work in Louisiana, Mississippi and Texas, which is the region covered by the Fifth Circuit," noted Jim Sacher, EEOC's regional attorney for the Houston District, which oversaw the case.  "It makes unquestionably clear to all employers that if they harass an employee because of gender stereotypes, they are breaking the law."

Paul Ramshaw, the attorney who represented the EEOC in the appeal, stated, "The harasser openly confessed repeatedly at trial that he considered Woods less than manly, and that he harassed him because of it.  Wolfe also admitted to a pattern of severe and pervasive harassment.  We are, of course, pleased that the Fifth Circuit recognized that the evidence amply supported the verdict."

The Court of Appeals remanded the case to the district court for further proceedings, including setting the proper amount of emotional damages in light of the appellate decision.

New Orleans-based Boh Bros. is a major construction contractor that operates in the New Orleans and Gulf South areas. According to company information, Boh Bros. employs more than 1,500 people on many projects, including publicly funded post-Katrina rebuilding, repair and expansion projects.

The EEOC was represented at the trial in New Orleans by attorneys Gregory T. Juge and Tanya L. Goldman.

The EEOC enforces federal law prohibiting employment discrimination. Further information is available on its web site at www.eeoc.gov.