Is Same-Sex Harassment Against The Law?

What do you do if your male supervisor calls you a "faggot" or a "sissy" and simulates anal sex when you bend over while doing your job? What if you know that supervisor is not homosexual and is not actually attracted to you? Is that still considered sexual harassment? Many employees do not realize that romance and/or sexual attraction are not necessary to prove unlawful sexual harassment in the workplace. A recent Fifth Circuit case has recently reaffirmed this fact.

EEOC v. Boh Brothers Construction Company

In a recent Fifth Circuit case, EEOC v. Boh Bros., the appellate court considered a very similar situation to the one described above. Kerry Woods, an ironworker at Boh Brothers Construction Company, complained that the superintendent, Chuck Wolfe, subjected him to verbal abuse, sexual gestures and exposing himself as they worked on a highway project near New Orleans. According to the lawsuit, filed in the Eastern District of Louisiana, Wolfe subjected Woods to harassment because Wolfe thought he was too effeminate and was not the typical "rough ironworker." The EEOC filed the lawsuit on behalf of the employee.

After the trial, the jury found for the EEOC and awarded in excess of $450,000 in damages. The award was reduced by the trial court to the statutory cap of $300,000. The Boh Brothers appealed the damage award. In April 2012, the Fifth Circuit reversed the award, finding that the EEOC had not established harassment "because of sex." On September 30, 2013, after a rehearing, a new Fifth Circuit panel of judges reinstated the jury verdict.

In doing so, the Fifth Circuit held, for the first time, that harassment can be "because of sex" when it is based on a lack of conformity to gender stereotypes. The court found that Woods was in fact harassed because of his sex, based on the harasser's perception that he did not conform to prevailing gender stereotypes.

Not Everyone Agrees with the Ruling

Although this was the majority opinion, there were very critical dissenting opinions issued by other judges. Some believe this case will allow claims to go forward that "may not even resemble sexual harassment or discrimination." The dissent also questioned whether phrases like "man up," would soon be considered evidence of sexual harassment. The implications of this decision are, as yet, unclear. What does seem clear is the fact that this decision will lead the way to more same-sex harassment lawsuits.

Another Lesson to Be Learned from Boh Brothers

There was another point made by the majority opinion in this case that is worth considering, especially if you are an employer. The court expressed its disapproval of Boh Brothers' failed attempt to investigate the alleged harassment in this case. According to the lawsuit, the company sent a general superintendent to interview two employees. The interviews lasted approximately 10 minutes each.

The conclusion was that the conduct alleged, although unprofessional, was not unlawful. On the other hand, the company paid a private investigator for 85 hours of investigation into the harasser's allegations that Wolfe was stealing from the company. The lesson here: employers must implement a clear, comprehensive harassment and discrimination policy and take every complaint of harassment seriously and investigate it as such.

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