The U.S. Fifth Circuit Court of Appeals recently upheld a $300,000 jury verdict for an ironworker whose supervisor rode him hard, day-in, day-out, for not being manly enough. EEOC v. Boh Brothers Constr. Co., L.L.C., 731 F.3d 444 (5th Cir. 2013). The harassed ironworker was heterosexual, on an all-male crew, and so the decision means that harassment based on gender-stereotypes can equal discrimination “because of sex” in violation of Title VII of the 1964 Civil Rights Act, even among the same sex, and just based on people’s perceptions. The Fifth Circuit Court covers employers and protects employees in Mississippi, Texas, and Louisiana only. However, the opinion will have a ripple effect. What happened here? An ironworker on a rough, all-male crew made a break-time comment that opened him up to ‘not manly enough’ jokes. The supervisor, who prided himself on treating his tough crew even tougher, rammed the joke home, each and every day, thereafter. 731 F.3d at 449-51. The Court noted that the day-in, day-out verbal harassment of the ironworker for months, and a few instances where it veered to menace, made the supervisor’s actions “severe” and illegal harassment under Title VII. 731 F.3d at 461. The Equal Employment Opportunity Commission, which tried and won this case, welcomed the decision in a press release, saying the decision “makes unquestionably clear to all employers that if they harass an employee because of gender stereotypes, they are breaking the law.” For the full release, see here. The case is notable because while the U.S. Supreme Court has held that gender stereotyping is illegal under Title XII when one sex harasses the opposite sex, see Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), and also in a same-sex scenario where the harasser is homosexual or simply discriminates against their own sex. Oncale v. Sundowner Offshore Services, 523 U.S. 75, 80-81 (1998). In EEOC v. Boh Brothers, the Fifth Circuit extended illegal sex discrimination to gender stereotype perceptions alone. 731 F.3d at 453-55. A U.S. District Court in Virginia this past year upheld an employee’s right to sue for illegal sex discrimination because he was harassed and ostracized as not a “real man.” Henderson v. Labor Finders of Virginia, Inc., 2013 U.S. Dist. LEXIS 47753 (E.D. Va. Apr. 1, 2013). Though the Virginia case & EEOC v. Boh Brothers involve different facts, both deal with employees harassed in a severe manner, motivated by perceptions of how men and women should act.
