Same Sex Harassment – Gender Stereotyping

By: Vanessa A. Gonzalez*

As an employment lawyer, I am often asked if there are legal protections against same sex harassment.  The answer is yes.  In 1998 the U.S. Supreme Court outlined three possible ways a plaintiff could prove a same sex harassment claim under Title VII: (1) a plaintiff may show that the harasser was homosexual and motivated by sexual desire; (2) a plaintiff may show that the harassment was framed “in such sex-specific and derogatory terms . . . as to make it clear that the harasser [was] motivated by general hostility to the presence” of a particular gender in the workplace; or (3) a plaintiff may offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace. The court specifically emphasized, “[w]hatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted ‘discrimina[tion] . . . because of . . . sex.’”

On September 27, 2013, after an en banc review of its previous decision, the Fifth Circuit joined several other circuit courts and decided gender stereotyping is an additional kind of same sex discrimination/harassment prohibited under Title VII.  The employee who complained to the EEOC about gender stereotyping was Mr. Kerry Woods.  Mr. Woods was an iron worker for Boh Brothers Construction Company and claimed his supervisor, Mr. Chuck Wolfe, subjected him to almost daily verbal and physical harassment because Woods did not conform to Wolfe’s view of how a man should act. The EEOC filed suit against the construction company on Woods’ behalf.  The evidence to the jury showed that while Wolfe used very foul language and “locker room talk” with the entire crew, he was especially tough on Woods because Wolfe thought Woods was not manly enough to work on a construction site.  Wolfe referred to Woods as “pu—y,” “princess,” and “fa—ot,” often two to three times a day. While Woods was bent over to perform a task, Wolfe would simulate sexual acts, and Wolfe exposed himself to Woods while urinating.  Wolfe viewed Woods use of moist towelettes instead of toilet paper as “kind of gay” and “feminine.” The jury found there was harassment based on Woods’ gender and awarded Woods $201,000 in compensatory damages and $250,000 in punitive damages.

On appeal, the Fifth Circuit decided that a Title VII claim could be proven with evidence that Wolfe viewed Woods as “insufficiently masculine.”   To make this determination, the court will look at the “harasser’s subjective view of the victim.”  The court determined there was enough evidence to support the jury’s conclusion that Wolfe harassed Woods based on his sex because Wolfe thought Woods was not “manly enough; In Wolfe’s view – Woods fell outside of Wolfe’s manly-man stereotype.”

This is gender stereotyping.  The same could occur if a female harassed another female worker because she perceived that she was not feminine enough, did not dress pretty enough, or was too “butch” to work in the industry.

It should also be noted that the Fifth Circuit stated that the construction company could have avoided liability if it would have had “institutional policies and education programs regarding sexual harassment.”  Instead, when the construction company tried to assert its affirmative defense, the evidence showed that there was not a clear company policy regarding where to report a harassment complaint, who investigated such complaints, or how an investigation was done. Also, the supervisors were not trained on how to handle a harassment complaint, and Wolfe and Wolfe’s supervisor both testified they had received very little to no training on harassment.

In light of this recent Fifth Circuit decision, Texas employers, including government employers, should update their policies and training materials to include gender stereotyping as a protected category under Title VII.  For example, discrimination/harassment policies could be revised to include a prohibition against offensive verbal or physical conduct based upon perceived gender stereotypes.

*Vanessa A. Gonzalez is a partner at Bickerstaff Heath Delgado Acosta LLP and is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization.