Same-sex harassment verdict upheld by 5th Circuit (10-6)

Supervisor thought employee was feminine and did not conform to gender stereotypes. A jury found that Boh Bros. Construction Co. illegally subjected an ironworker to severe or pervasive harassment based on gender stereotypes. A 5th Circuit panel reversed on the ground that the harassment was not "because of sex." Now the full 5th Circuit has reinstated the jury verdict on a 10 to 6 vote. EEOC v. Boh Brothers Const Co (5th Cir 09/27/2013).

You can get an excellent and lengthy explanation of the case from Paul Mollica, who writes for the Outten & Golden firm's blog.

Here are some key points:

  • The supervisor-harasser had hire-and-fire authority, so his actions were automatically the actions of the employer. No need to show that higher-ups were aware or negligent.
  • "[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." This means the focus is on the harasser's subjective view of what is "manly," and a plaintiff need not prove that this view was "rooted in some objective truth." In other words, the victim need not prove that he was in fact not "manly."
  • It was OK for the jury to hear from a medical-school professor, board-certified psychiatrist, and author of a treatise on sexual harassment, who testified regarding the nature of same-sex harassment from a psychological perspective.

Plaintiffs' lawyers must be rejoicing.