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EEOC v. Boh Bros. Constr. Co., No. 11-30770 (5th Cir. Sept. 27, 2013)

The Fifth Circuit, in a 10-6 en banc decision, affirms a jury verdict in favor of the government on a male iron worker's claim that he was sexually harassed by a male supervisor on a nearly-daily basis at his worksite, the Twin Spans bridges between New Orleans and Slidell, Louisiana. The full court considers what an employee must prove to establish that a hostile-work-environment is "because . . . of sex," and whether the incident here was severe or pervasive. Meanwhile, the six dissenters between them contribute four separate opinions, lashing out at every aspect of the majority's interpretation of the record and Title VII law.

EEOC v. Boh Bros. Constr. Co., No. 11-30770 (5th Cir. Sept. 27, 2013): The harassment target, Kevin Woods, endured near-daily taunts by Chuck Wolfe, the superintendent of an all-male crew of five at the site. The conduct supposedly began with the crew learning that Woods preferred using wet wipes for personal hygiene instead of dry toilet paper. Wolfe testified that he himself found this behavior as "kind of gay" and "feminine," and that it was a mistake to display this preference before a "a bunch of iron workers."

The conduct became persistent, and often sexually explicit:

"Wolfe referred to Woods as 'pu--y,' 'princess,' and 'fa--ot,' often 'two to three times a day.' About two to three times per week-while Woods was bent over to perform a task-Wolfe approached him from behind and simulated anal intercourse with him. Woods felt 'embarrassed and humiliated' by the name-calling and began to look over his shoulder before bending down. In addition, Wolfe exposed his penis to Woods about ten times while urinating, sometimes waving at Woods and smiling."

Efforts by Woods to raise the issue with his foreman, Tim Carpenter, were at first unavailing; eventually, though, he was transferred away from Wolfe's crew. Wayne Duckworth, the general superintendent for Boh BrTheres's Heavy Highway Department supposedly investigated the harassment allegations. Yet the investigation amounted to no more than two ten-minute interviews with Wolfe and crew foreman, and resulted in a finding of no harassment. Woods was later laid off for lack of work.

Following a three-day jury trial on the EEOC's claim of sex harassment, Woods was awarded $201,000 in compensatory damages and $250,000 in punitive damages. The district court reduced the compensatory damage award to $50,000, to comply with the $300,000 statutory damages cap (42 U.S.C. § 1981a(b)(3)(D)). A panel of the Fifth Circuit originally overturned the judgment on the ground that There was insufficient evidence that the harassment was "because of" sex, as required by Title VII.

The ten-judge majority of the Fifth Circuit affirms the judgment, though not the entire damage award. The court majority begins by applying the recent Supreme Court decision, Vance v. Ball State Univ., 133 S. Ct. 2434 (2013), holding that Wolfe - who had hiring and firing authority - was Woods's "supervisor, whose harassing behavior was automatically attributable to the employer. It then isolated the "most critical issues on appeal" - whether "the EEOC presented sufficient evidence that (1) Wolfe harassed Woods 'because of . . . sex' as required by Title VII, and (2) Wolfe's harassment was severe or pervasive."

The touchstone for the analysis Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), in which the U.S. Supreme Court first recognized same-sex harassment. The majority noted a broad consensus in federal courts, under the reasoning of Oncale, "recogniz[ing] that a plaintiff can satisfy Title VII's because-of-sex requirement with evidence of a plaintiff's perceived failure to conform to traditional gender stereotypes." (The Supreme Court famously recognized that the stereotyping of gender norms in the workplace could constitute actionable Title VII discrimination in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).)

It also clarifies that despite Oncale offering three examples of situations where same-sex harassment were likely to occur (one such example: homosexual desire), no one path or scenario is required to prove that same-sex harassment was motivated "because of . . . sex."

Moreover, it is unnecessary to prove in such cases that the victim of harassment actually expressed non-traditional gender traits:

"In conducting this intent-based inquiry, we focus on the alleged harasser's subjective perception of the victim. Thus, even an employer's wrong or ill-informed assumptions about its employee may form the basis of a discrimination claim. . . . We do not require a plaintiff to prop up his employer's subjective discriminatory animus by proving that it was rooted in some objective truth; here, for example, that Woods was not, in fact, 'manly.'"

The majority then holds that There was sufficient evidence in the record of sex bias in this case to support the verdict. The "the EEOC offered evidence that Wolfe, the crew superintendent, thought that Woods was not a manly-enough man and taunted him tirelessly. Wolfe called Woods sex-based epithets . . . 'two to three times' per day." Further, "Wolfe engaged in several physical acts of flashing and humping at the work site, specifically and consistently aimed at Woods." The testimony, a jury could have found, did not suggest merely vulgar or boorish behavior, and "extend[ed] far beyond isolated insults and occasional horseplay."

The trial testimony was bolstered by a medical school professor's expert testimony "regarding the nature of same-sex harassment from a psychological perspective." (In a lengthy footnote, the majority affirmed the admission of such testimony in a harassment case, with the important limitation that the doctor "could testify regarding sexual harassment studies from a psychological perspective but could not offer any opinions regarding the specific facts of the case.")

The majority also holds that the jury could have found the hostile work environment severe or pervasive. Woods "was a unique and constant target of Wolfe's abuse." The majority notes that the harasser Wolfe himself

"conceded that he called only Woods 'queer'; he did not recall whether he called anyone else 'fa--ot,' a name he used regarding Woods on a consistent basis. This, alongside all of the evidence discussed above . . . -the repeated humping, the reference to oral sex, etc.-is sufficient for a reasonable juror to conclude that Wolfe's harassment was sufficiently severe or pervasive to alter the conditions of Woods's employment. Wolfe hurled raw sex-based epithets uniquely at Woods two-to-three times a day, almost every day, for months on end."

At the close of the opinion, the majority dispenses with various alternative arguments for overturning the judgment. It holds that the employer was not entitled to a judgment as a matter of law on its affirmative defense (under Faragher/Ellerth) that it took reasonable precautions to correct and prevent harassment by Woods' supervisor. Boh BrTheres' non-discrimination policy "no specific guidance regarding sexual harassment," and "even if the EEO Statement had included content relevant to sexual harassment-which it did not-Boh BrTheres employees were not aware of the policy ."

The company "offered employees no specific instructions regarding how to assert or investigate harassment complaints" and "failed to provide its supervisors with any guidance regarding how to investigate, document, and resolve harassment complaints once they were reported." In this specific case, "Despite his status as a supervisor, Wolfe testified that he did not receive any formal employment-discrimination training, There than receiving a general ethics code after Woods's harassment."

Further, the investigation that the company did conduct was cursory at best, and did more to harm the employee than the harasser:

"Beyond these policy failures, it is important that Woods's complaint to Duckworth resulted in what the jury reasonably could have viewed as a belated and cursory twenty-minute investigation, along with arguably poor treatment of the alleged victim vis-à-vis the alleged harasser. Duckworth took no notes and asked no questions during his meeting with Woods. Upon hearing Woods's complaint, Duckworth sent Woods-the alleged harassment victim-home with no pay for three days because he was afraid that Further problems would occur between the two men, leading Woods to assume that he had been fired."

Though affirming liability, the court strikes the punitive damage award - for lack of evidence that the company was aware or at least perceived a risk that it was violating federal civil rights law: "the uncontroverted evidence shows that neither Wolfe nor Duckworth subjectively understood that male-on-male sexual harassment, based on something There than sexual desire, was sufficient to violate federal law." The court remands the case to the district court, Therefore, to reconsider the cap that it placed on the compensatory damage award. Finally, the majority affirmed the entry of injunctive relief because "Boh BrTheres failed to demonstrate, by clear and convincing evidence, that future violations of Title VII were not reasonably likely to occur."

There follows four dissenting opinions: two joined by all six dissenters, two more joined by differing subgroups.

Judge Jolly, writing for all six, perceives the record as presenting an uncouth workplace but not one infested by sex discrimination. By the dissenters' reasoning, "[u]nlike opposite sex Title VII claims, . . . in same-sex suits a plaintiff must elucidate and prove the premise of his assertion that the harassment is because of sex-it is not assumed automatically." The dissenters conclude that the EEOC failed to prove more likely than not that Wolfe's hostility to Woods was rooted in his not being "manly" enough, nor supposedly was There evidence that Woods objectively deviated from male gender norms.

Judge Jones, also writing for the six dissenters, adds that absent proof of actual "non-gender-conforming behavior or appearance," no same-sex harassment case should lie. Judge Jones regards the opinion as a step towards "cautious employers . . . monitor[ing] and ban[ning] 'offensive' speech and punish[ing] 'offenders.'" Appended to the opinion is a parody HR memo entitled "ETIQUETTE FOR IRONWORKERS." Judge Jones' opinion also faults the admission of the EEOC's expert witness and the application of the Faragher/Ellerth affirmative defense.

Finally, Judges Smith and DeMoss contribute separate opinions, joined by one another (and Judge Jones joined Judge DeMoss's opinion).

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