December 2013

By: Nancy E. Joerg, Esq.

Same-sex harassment is unlawful. However, many employers are not aware of this. When employers think about sexual harassment, they usually think of a male co-worker or supervisor victimizing a female employee. But, same-sex harassment may bring lawsuits to an employer.

A recent case involving same-sex harassment was decided by the Fifth Circuit Court of Appeals on September 27, 2013. After a three-day trial, the jury awarded a verdict of $451,000 in the case of Boh Brothers Construction, LLC v. Equal Employment Opportunity Commission (EEOC).

This (controversial) case involved a five-man work crew. The superintendent of the crew (a man named Wolfe) decided that one of the crew members (a man name Woods) wasn’t manly enough and didn’t properly fit into a construction environment.

Wolfe tried to argue that he was “just joking” and “just giving Woods a hard time.” According to testimony by Wolfe in the lawsuit, Wolfe routinely called Woods names like “princess” and “pussy,” and engaged in other kinds of harassment.

Woods filed a discrimination charge of same-sex harassment with the EEOC. The EEOC eventually filed a lawsuit against Boh Brothers Construction.

Under the facts of the Boh Brothers Construction case, crude language was a part of the culture in the construction work environment. The Court found that the crew superintendent Wolfe took the same sex teasing too far. Wolfe also sexually exposed himself to Woods. The Court found under the facts of this case that the harassment was severe and pervasive. Additionally, the Court found the fact that Wolfe discriminated against Woods for not fitting Wolfe’s perceived male stereotype amounted to illegal sexual harassment.

Since 1998, the Supreme Court of the United States has held that same-sex harassment may be unlawful. The Boh Brothers Construction case establishes, at least in cases under the Fifth Circuit Court of Appeals, that repeatedly teasing someone for not “being manly enough” will not be tolerated in the workplace – even if it is at a construction site.

LESSONS FOR EMPLOYERS: This case has many warnings in it for employers. There is often a fine line between workplace teasing and illegal harassment. This case, Boh Brothers Construction, warns that plaintiffs will be more successful in the future in bringing sex discrimination claims based on gender stereotyping. Unfortunately for employers, this case predicts the expansion of sex discrimination based on same-sex harassment.

Therefore, employers should train both their supervisors and employees that gender stereotyping behavior can be sexual harassment. Employers should stop gender stereotyping behavior before such harassing behavior reaches the level of illegal sexual discrimination. Employers should also have a well-drafted anti-harassment policy, publish it and follow it!

Questions? Call Attorney Nancy E. Joerg of Wessels Sherman’s St. Charles, Illinois office: 630-377-1554.