EEOC V. BOH BROTHERS CONSTRUCTION COMPANY, L.L.C.: IS TITLE VII NOW A WORKPLACE CIVILITY CODE?

So you think crude, vulgar comments and horseplay by a male, heterosexual supervisor directed to a male, heterosexual iron worker at an all-male construction site cannot form the basis of a sexual harassment complaint?  Think again.  A deeply divided court for the Fifth Circuit Court of Appeals—which covers Texas, Louisiana, and Mississippi—recently found that sexual epithets and vulgar gestures could support a verdict against a company for “gender-stereotyping harassment.”  Although the decision currently only applies to employers within the Fifth Circuit, because the claim was brought by the EEOC, employers everywhere should be on guard, especially when one considers the sorts of hypothetical situations the EEOC’s lawyers said could constitute viable Title VII actions. 

 

The facts underlying this case would almost be laughable if the story were not true.  The unwary employer in EEOC v. Boh Brothers Construction Company, L.L.C. had not had any meritorious sexual harassment complaints against it in its 40-year history.  The EEOC brought a complaint on behalf of an iron worker who made the mistake of admitting to his co-workers that he preferred to use “Wet Ones” wipes instead of toilet paper.  This led to the other iron workers at the all-male construction site teasing him.  In particular, his supervisor called him vulgar, sex-based names—the least offensive of which were “princess” and “fairy” — two to three times a day.  He also made crude, “humping” gestures to the employee two or three times per week and exposed himself to the employee on occasion.    Although the crew at the workplace regularly used very foul language, it appears the supervisor was the worst offender, even going so far as calling his own son, who also worked there, a “queer.” 

After Boh Brothers laid the employee off for lack of work, the employee filed a charge of discrimination with the EEOC, alleging sexual harassment and retaliation.  The EEOC brought an enforcement action on the employee’s behalf, alleging that he was harassed because he was not enough of a “manly man” in the supervisor’s view.  Importantly, the supervisor stated that, despite the name-calling, he did not actually believe that the employee was homosexual.  Nor was the supervisor homosexual.  Furthermore, it was undisputed that the employee did not appear effeminate.  Nevertheless, a jury found for the employee on the harassment claim, awarding him damages that the trial judge later reduced to $300,000. 

The employer appealed, and a three-judge panel at the Fifth Circuit reversed the jury’s verdict—finding that although the supervisor’s conduct was offensive and unprofessional, the evidence did not show that he harassed the employee “because of” the employee’s sex.  The EEOC then sought a review by the entire Fifth Circuit Court of Appeals. 

The court affirmed the jury verdict, although it reversed the award of punitive damages.  The court found that there was enough evidence for the jury to conclude that the supervisor harassed the employee because of his sex, specifically because the supervisor did not think the employee was manly enough.  In reaching this decision, the court noted that complainants can show that discrimination occurred because of sex through the use gender-stereotyping evidence, which involves the complainant’s perceived failure to conform to traditional gender stereotypes. 

Previous gender-stereotyping cases involved situations where a man acted effeminate or a woman acted masculine and therefore suffered harassment.  The interesting wrinkle in Boh Brothers was that — other than his preference for “Wet Ones” over toilet paper, which the supervisor considered to be feminine — there was no evidence that the employee was anything other than a manly iron worker.  This did not prevent the Fifth Circuit majority from finding for the EEOC, as they focused on the harasser’s subjective perception of the victim.  The court said that a plaintiff is not required “to prop up his employer’s subjective discriminatory animus by proving that it was rooted in some objective truth” — in this case, that the employee was, in fact, not manly.  The harasser’s motivation, based upon his or her own perception of the victim, is enough to find that the discrimination occurred because of sex. 

The court was deeply divided in this case, with ten judges in the majority and six judges dissenting.  The dissenting judges noted that the U.S. Supreme Court has held that Title VII was not meant to impose a workplace civility code and that this decision could make the EEOC a “federal enforcer of clean talk in a single sex workforce.”  The dissent disagreed that the supervisor’s immature and vulgar behavior amounted to a violation of federal civil rights laws.  The dissent pointed out that the Supreme Court has held that charges of harassment must be viewed in light of the social context in which the comments are made.  In this case, the remarks occurred at an all-male construction site which customarily had crude and vulgar language.  

One dissenting judge went so far as to attach to her dissent a mock memo — “Etiquette for Iron Workers”—that employers may be forced to issue as a result of this decision.  In the judge’s tongue-in-cheek memo, a fictitious employer’s legal counsel advises management not to discuss topics that may be viewed as non-inclusive, such as hunting, fishing, and football, and to avoid schoolyard humor about personal grooming, chest hair, or bodily functions. 

While this memo is satirical, employers should take note of the EEOC’s extreme position in this case.  The dissenting judges pointed out that, when asked during oral argument, the EEOC’s lawyer stated that former British Prime Minister Margaret Thatcher’s asking her cabinet members if there was a real man among them would have violated Title VII.  Similarly, one judge asked the EEOC’s lawyer whether an employer could be liable if a supervisor made remarks about a male employee wearing pink shirts but did not disclose whether the remarks were because he felt pink shirts were effeminate or simply because he did not like the color pink.  The EEOC’s position was that this conduct could impose liability under Title VII if the remarks were sufficiently severe and pervasive. 

Although this case’s holding is limited to the three states that encompass the Fifth Circuit, employers everywhere should note the extension of Title VII liability the EEOC advocated in this case, where offensive speech alone can impose liability, even if the speech is not tied to discrimination because of sex.  While the mock memo attached to the dissent is probably not necessary (yet), employers should be aware that the EEOC is willing to prosecute cases that simply involve harassment without a clear nexus to the victim’s gender.  

You should therefore take any complaint of harassment seriously, even if it does not appear to be based on the victim’s race, sex, religion, national origin, or other protected trait.  Make sure that your policy includes a means for employees to raise harassment complaints.  Conduct a serious investigation and, if there is evidence that harassment took place, take action to ensure the harassment stops.

Mark Jeffries focuses his practice in the area of labor and employment law. He has represented employers in wrongful discharge and discrimination cases in state and federal court, as well as before the West Virginia Human Rights Commission and the U.S. Equal Opportunity Commission.
 
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