By Dennis A. Clifford and Christopher J. DeGroff

As we previously blogged here, the EEOC has historically paid particular interest to cases involving gender stereotypes, with various degrees of success. As many courts have observed, harassment based on a perceived failure to conform with gender stereotypes is not necessarily harassment “because of sex” under Title VII. But in a significant win for the EEOC, the Firth Circuit recently held in EEOC v. Boh Brothers Construction Co., No. 11-30770 (5th Cir. Sept. 27, 2013), by an en banc majority of ten judges, that harassment based on gender-stereotypes can be actionable harassment “because of sex” under Title VII.

Background Of The Case

In EEOC v. Boh Brothers Construction Co., an ironworker on a bridge-maintenance crew was subjected to “almost-daily verbal and physical harassment because [he] did not conform to [the supervisor’s] view of how a man should act.” Id. at 1. Among other things, his supervisor: (1) ridiculed him because he used baby wipes instead of traditional toilet paper; (2) called him “pu–y,” “princess,” and “fa–ot”; (3) stood behind him and simulated intercourse; (4) exposed his penis while waving and smiling; and (5) joked about forcing oral sex upon him. Id. at 2-3. As the Fifth Circuit observed, the EEOC’s evidence demonstrated the supervisor thought the victim was not a “manly-enough man” and fell outside the supervisor’s “manly-man stereotype.” Id. at 14, 17. 

Notably, the EEOC’s evidence did not follow any of the three evidentiary paths set forth by the Supreme Court for addressing same-sex harassment as articulated in Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80-81 (1998). Thus, the same-sex harassment claim was cognizable even though: (1) there was no evidence the harasser was homosexual or motivated by sexual desire; (2) there was no evidence the harasser was motivated by the general hostility towards a particular gender in the workplace; and (3) there was no evidence the harasser treated men and women differently. Boh Brothers, at 11-12.  

The Fifth Circuit, however, agreed with the Third, Seventh, Eighth, and Tenth Circuits in holding that the three evidentiary paths for proving same-sex harassment in the Supreme Court’s Oncale decision were merely “illustrative, not exhaustive.” Id. at 12. Thus, the EEOC could prove that the same-sex harassment was “because of sex” by presenting evidence that the harassment was based on a perceived lack of conformity with gender stereotypes. Id. Notably, the EEOC was not required to show that the victim was not, in fact, “manly.” Id. at 13. Rather, it was enough to show that the harasser admitted his epithets were directed at the victim’s masculinity. Id. at 14-17.

The Dissent

While EEOC v. Boh Brothers is arguably an extreme case of gender-stereotype discrimination, a colorful dissenting opinion (a must-read) highlighted the difficulty of identifying actionable conduct at predominately male-populated worksites, such as construction sites and oil/gas fields. In a mock company memorandum, entitled “Etiquette for Ironworkers,” the dissent set forth company “rules” banning use of the phrase “man up” and prohibiting anyone from making fun of male co-workers for “not being able to eat a raw jalapeno.” Id. at 58-61. 

Implications For Employers

The EEOC is often emboldened by its wins. In light of this opinion and the EEOC’s continued focus on discrimination based on perceived failure to adhere to gender stereotypes, employers should consider including the topic in training, and may wish to revisit language in anti-harassment policies. Prompt remedial action is, of course, always wise when confronted with any alleged harassing behavior. 

Readers can also find this post on our Workplace Class Action blog here.