"Gutter Behavior": 5th Circuit on Same-Sex Harassment

, Texas Lawyer


A very pro-employee decision in a closely watched same-sex harassment case came down from the en banc 5th U.S. Circuit Court of Appeals on Sept. 27. The vote was 10-6, with the dissenters sounding a clarion call that, if the facts before the court constitute a viable claim, then any fact pattern including bad manners and raunchy words will be transmuted into a sexual harassment claim.

The case is Equal Employment Opportunity Commission v. Boh Brothers Construction Co., LLC. The majority opinion sketched out the facts. Iron worker Kerry Woods goes to work in November 2005 at an all-male work site with other iron workers, one of whom is his supervisor, Chuck Wolfe.

Wolfe used all sorts of profane language, including comments (often directed at Woods) such as: "pu--y," "princess," "fa--t," and "queer" (although Wolfe also called his son, who worked at the site, by this name). Wolfe also approached Woods from behind and simulated anal intercourse and exposed his genitalia to him while in the act of urinating.

Wolfe testified that a lot of the taunting started when Woods, while sitting at a table with his colleagues, confessed that he did not like to use toilet paper, preferring Wet Ones instead. Neither Wolfe nor Woods is homosexual.

The legal issue: Would the en banc 5th Circuit recognize gender stereotyping evidence as sufficient to support a same-sex harassment claim, and, if so, was it sufficient in this case to support the jury's verdict on behalf of the EEOC? The trial court thought the evidence was sufficient, but the panel did not.

The answer to both questions was an emphatic "yes." The majority acknowledged — and the dissent really did not dispute — both that other circuits have approved the use of stereotyping evidence and that such evidence is appropriate to support a same-sex claim.

The big issue was: What determines admissibility? Is it the alleged harasser's subjective perception of the victim ("I believed he did not act in conformity with a gender norm") or the objective truth (the victim actually did not act in conformity with gender norms)?

The majority said the former: "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 record evidence was that Wolfe, in response to leading questions (I imagine he just wanted to get off the witness stand) testified at trial that the impetus behind the Wet-Ones comments and his use of certain words was borne of his belief that Woods' conduct reflected feminine characteristics.

For the majority, this was enough to consider the testimony through the lens of sexual stereotyping and thus sufficient to support a verdict.

In their dissents, Judge E. Grady Jolly and Judge Edith Jones thought that dirty words, without more, do not a claim make. Here's Jolly:

[T]he majority relies on the harassment, in and of itself, as a substitute for actual evidence reflecting a subjective intent of Wolfe to engage in sex discrimination against Woods — completely ignoring the all male iron worker environment where it occurred. The majority thus engages in a distraction from the proper legal analysis by treating this case as if it were sexual harassment between male and female when the inference of sex discrimination may be presumed by words and conduct. . . . The majority should call it for what it is: immature and gutter behavior between and among male coworkers. And then drop it.


In her dissent, Jones went so far as to draft an imaginary memo to management from a company's legal department, advising the company that there must be, among other items, "no more banter about bodily functions, sexual or otherwise, or human physical appearance. Those who do not enjoy references to sweat, toilet humor, tattoos, tight jeans, muscles, or large beards may feel singled out as not 'man enough' for such speech." Wow!

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What's being said

  • Boston Lawyer

    I feel sorry for people in Texas. There would be no debate that the supervisors abusive actions violate the law here in Massachusetts. Under our state law, we have a definition of sexual harassment that encompasses the supervisor's conduct regardless of his motivation and regardless of the sex of the victims. Furthermore, we hold employers strictly liable for sexual harassment by officers, managers and supervisors. The dissent in EEOC v Boh Brothers seems to be straining to find a way to deny the employee's claim. Good grief!

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