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Fifth Circuit Grants Rehearing En Banc in a Same-Sex Harassment Case

The Fifth Circuit has announced that it will rehear a same-sex harassment case en banc.  The case is EEOC v. Boh Brothers Construction Co., No. 11-30770.  The issue is whether a plaintiff can establish gender discrimination based solely on sexual stereotyping.

The panel decision described the facts as follows:

Kerry Woods began working as an ironworker for Boh Brothers in November 2005. In January 2006, he was assigned to a maintenance crew for the Twin Spans bridge between New Orleans and Slidell, which had been repaired and returned to service after Hurricane Katrina.

By that April, Woods was being harassed regularly by crew superintendent Chuck Wolfe. Wolfe would call Woods names such as “faggot” and “princess” and would approach him from behind to simulate having sexual intercourse while Woods was bent over to perform job duties. Wolfe allegedly exposed himself to Woods numerous times. Woods complained more than once to the crew foreman that he “didn’t like how [Wolfe] talked to me.” There is, however, no evidence that either man was either homosexual or attracted to homosexuals.

The panel framed the issues as follows:

The EEOC’s case depends on the proposition that sex stereotyping by a member of the same sex can constitute sexual harassment under Title VII. Its theory is that Wolfe harassed Woods because Woods did not, in Wolfe’s view, conform to the male stereotype. Boh Brothers counters that same-sex stereotyping, even assuming it was present here, cannot constitute sexual harassment under Title VII because it is not one of the three evidentiary paths established to show same-sex harassment by Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).

The "sexual stereotyping" theory has its roots in the Supreme Court's decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

The panel ruled in favor of the company, declining to extend the "sexual stereotyping" theory to the facts of the case:

The case before us today stands in sharp contrast to Price Waterhouse, in which there was considerable evidence that the plaintiff did not conform to the female stereotype. The only charge asserted by Wolfe that Woods was other than masculine to which the EEOC has pointed us is his use of “Wet Ones” instead of toilet paper. Wolfe testified that he did not view Woods as feminine, and there is no evidence except the “Wet Ones” that he did, and that does not strike us as overtly feminine. The record further shows that, although Woods may have been Wolfe’s primary target, he was by no means his only target. Nor was Wolfe the sole offender. To the contrary, misogynistic and homophobic epithets were bandied about routinely among crew members, and the recipients, Woods not excepted, reciprocated with like vulgarity.

Assuming that the EEOC has asserted a viable theory of Title VII discrimination in behalf of Woods, it is a circular truth that a plaintiff may not recover based on nonconformance to gender stereotypes unless the plaintiff conforms to nonconformance gender stereotypes. Accordingly, we hold that there is insufficient evidence that Wolfe “acted on the basis of gender” in his treatment of Woods.

The EEOC moved for rehearing.  After eight months, the Fifth Circuit agreed to rehear the case en banc.  This case could have significant implications for the EEOC's ongoing effort to apply Title VII to cases of sexual stereotyping.

David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes