A recent Fifth Circuit Court of Appeals’ decision illustrates the expansion of what constitutes sexual harassment under Title VII of the Civil Rights Act of 1964. In EEOC v. Boh Brothers Construction Company, 731 F. 3d 444 (5th Cir. Ct. App. 2013), the Court held that a heterosexual male supervisor’s regular use of “very foul language” and “locker room talk” to tease and taunt a heterosexual male employee could rise to the level of sexual harassment.
The employee, Woods, was an iron worker and structural welder. His supervisor, Wolfe, was the crew superintendent, with five employees under his supervision. The worksite was “an undeniably vulgar place,” and Wolfe and the crew regularly used “very foul language” and “locker room talk.” Wolfe was a primary offender, and Woods soon became a “specific and frequent target of Wolfe’s abuse.” In addition to calling him foul names, often sexual in nature, Wolfe also would frequently approach Woods from behind and simulate anal intercourse with him. Wolfe also made crude comments about Woods’ daughter and exposed his penis to Woods about ten times while urinating, sometimes waving at Woods and smiling. According to Wolfe, some of the teasing originated from Woods’ use of Wet Ones instead of toilet paper, which Wolfe considered “kind of gay” and “feminine.” Woods, who felt “embarrassed and humiliated” by the treatment, complained about Wolfe’s treatment to his foreman on two or three occasions.
Boh Brothers transferred and ultimately fired Woods, and the EEOC initiated a suit against Boh Brothers. The jury found that Boh Brothers was liable for damages arising from Wolfe’s sexual harassment of Woods, and Boh Brothers appealed.
The Fifth Circuit held that a plaintiff may establish a sexual harassment claim with evidence of sex-stereotyping, and thus “the EEOC may rely on evidence that Wolfe viewed Woods as insufficiently masculine to prove its Title VII claim.” The Court stated that the specific focus is on the alleged harasser’s subjective perception of the victim. The Court went on to find that a jury could reasonably view Wolfe’s behavior as “an attempt to denigrate Woods because—at least in Wolfe’s view—Woods fell outside of Wolfe’s manly-man stereotype.”
In holding that Wolfe’s abuse was sufficiently severe or pervasive to support Title VII liability, the Court concluded that the sex-based epithets, alongside the repeated humping and references to oral sex, were sufficient for a reasonable juror to conclude that Wolfe’s harassment was severe enough to alter the conditions of Woods’ employment.
As this case demonstrates, the definition of sexual harassment under Title VII is continuously evolving and expanding. Employers must frequently review their sexual harassment policies and protocols and update them as necessary to comport with the latest developments in the law.
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