"Hey! You're not manly enough to be in construction!"

There are many different types of sexual harassment claims. Some are vulgar sexual comments made to women in the workplace. Some claims are based on offensive, physical touching of women. Some are even same-sex harassment claims. However, in one case based out of Louisiana, the claim is sexual harassment based on male stereotypes. That's right. A construction worker was harassed because his supervisor didn't think he was manly enough.

EEOC v. Boh Bros. Construction Co.

This federal sexual harassment lawsuit was filed by the EEOC based on a Louisiana man's claims that he was subjected to both verbal and physical harassment by his male supervisor because he allegedly did not conform to the supervisor's gender stereotypes.

The Alleged Facts

Kerry Woods was an employee of Boh Bros. Construction Co., one of New Orleans' largest construction contractors. Woods was initially hired to perform welding and iron repair on a bridge in Louisiana after Hurricane Katrina. Later on, Woods was transferred to a brief maintenance crew of six men.

Shortly after his transfer, the supervisor, Chuck Wolfe, started calling Woods names and questioning his masculinity. Wolfe's harassment in the workplace embarrassed and humiliated Woods. Woods complained and was subsequently transferred to a different work crew. Wolfe reported to the general supervisor that Woods had allegedly violated company policy in some way. When Woods met with the general supervisor, Woods again reported the harassment and claimed the issue of a policy violation was never raised. Nevertheless, Woods was sent home without pay.

Woods claimed that the general supervisor performed a poor investigation of his harassment complaint and determined it was without merit. No action was taken against Wolfe. Woods was allowed to return to work, but was laid off a few months after filing an EEOC charge.

Jury Verdict for the EEOC on Behalf of Woods

After a trial, the jury returned a verdict in favor of Woods for sexual harassment and retaliation. Boh Bros. appealed the case to the United States Court of Appeals for the Fifth Circuit. A three-judge panel overturned the jury's verdict for lack of evidence. However, the EEOC successfully sought en banc review of the case, which means all of the judges who were sitting on the court at that time reviewed the case.

Gender Stereotypes Are Sufficient Basis for Sexual Harassment Claim

With a 10-judge majority, the Fifth Circuit held, for the first time, that evidence of gender stereotypes may be used to support a same-sex harassment claim. The court also indicated that the issue was not whether the employee actually conformed to gender stereotypes, but instead whether the harassment resulted from the supervisor's belief that he failed to conform.

According to EEOC's regional attorney, Jim Sacher, who oversaw this case, "this is a very significant outcome to employees who work in Louisiana, Mississippi and Texas, which is the region covered by the Fifth Circuit. 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, had this to say:

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.

This case is another victory for employee rights and demonstrates the ever-changing dynamic of sexual harassment law. If you believe you may be a victim of workplace harassment, please give us a call to discuss your rights.

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