Inside: “Boys Will Be Boys” is not a defense to claims of same-sex harassment

There are limits to what a jury will countenance, even among men at a construction site.

At first (and second) glance, the United States Court of Appeals for the 5th Circuit’s recent en banc opinion in Equal Employment Opportunity Commission v. Boh Brothers Construction appears to be just what the courts always deny doing: imposing a civility code upon a workplace. A more dispassionate reading of the opinion lends itself to this simple conclusion: there are limits to what a jury will countenance, even among men at a construction site.

Since 1986, the U.S. Supreme Court has recognized the concept that severe or pervasive workplace harassment may violate Title VII of the Civil Rights Act. Moreover, since 1998, the Supreme Court has acknowledged that same-sex harassment may also be unlawful.

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Howard Kastrinsky

Howard Kastrinsky is a partner at King & Ballow, a Meritas member firm, where he is head of the Employment and Discrimination Section....

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