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.

There had been, until Boh Brothers, three recognized evidentiary paths to show same-sex harassment:

  • The harasser was homosexual and motivated by sexual desire;
  • The harassment was framed in such sex-specific and derogatory terms as to make clear the harasser was motivated by general hostility to the presence of a particular gender in the workplace; or
  • There was direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.

The Boh Brothers case did not fit into any of those pigeonholes. It concerned an all-male crew on a construction site. Needless to say, the site was an undeniably vulgar place with the workers regularly expressing themselves with very foul language. That general workplace conduct, however, was not the court’s concern.

What concerned the court was the crew superintendent’s treatment of one iron worker after the superintendent learned of the employee’s preference for the use of sanitary wipes instead of regulation-issue toilet paper. The superintendent considered that preference to be “kind of gay” and “feminine.” From then on, the superintendent subjected the employee to a daily barrage of name-calling and regularly simulated anal intercourse with the employee on occasions when he found the employee had turned his back to him. He would expose himself to the employee when the occasion arose and make references to forced oral copulation with the employee.

Eventually, the EEOC, on behalf of the employee, successfully sued the company for unlawful sexual harassment and won a $300,000 jury verdict. The company appealed that verdict to the 5th Circuit, which found the company was liable for the superintendent’s sexual harassment of the iron worker.

The court recognized this case did not fit neatly into any of the recognized categories of same-sex harassment. There was no evidence of sexual desire, of the superintendent’s hostility to men in the workplace, or of differing treatment of employees based on their sex. However, the 5th Circuit found the evidence supported the jury’s conclusion that the company’s conduct had been motivated by the superintendent’s belief the employee was insufficiently masculine. In other words, the harasser perceived that the victim did not fit his stereotype of how a male construction worker should otherwise conduct himself.

The second question for the court was whether the jury could have viewed the superintendent’s conduct as “severe” or “pervasive.” Title VII is not a general civility code for the American workplace. Alleged harassment must be viewed with common sense and an appropriate sensitivity to social context in order to determine whether it constitutes conduct which a reasonable person would find severely hostile or abusive.

According to the court, the evidence showed far more than isolated insults and occasional horseplay. The repeated “humping,” the references to oral sex, and the daily “raw sex-based epithets” were sufficient for a reasonable juror to conclude the harassment was sufficiently severe or pervasive to alter the conditions of the construction worker’s employment. Therefore, the 5th Circuit upheld the jury’s verdict.

Six judges on the 5th Circuit, and numerous commentators, immediately seized upon the court’s decision to claim it meant Title VII and the EEOC were now the federal enforcers of clean talk in a single-sex workforce. Fears have been expressed that the Boh Brothers decision will unleash a flood of lawsuits based on ordinary workplace banter between male employees. The protests may be overwrought.

Boh Brothers presented an extraordinary situation. It was an extreme case of gender-stereotype discrimination that reflected “pack behavior” run wild. The employer had a deficient nondiscrimination policy that neither offered specific guidance regarding sexual harassment nor provided employees with specific instructions regarding how to assert or investigate harassment complaints. The employer did little to implement its nondiscrimination policies. When the employee finally made a complaint about his supervisor’s conduct, the employer conducted a cursory 20-minute investigation. It then took action against the employee who had endured the harassment and had filed the complaint. Boh Brothers was truly a situation where “hard cases make bad law.”

The lesson for employers is that there is a line between unlawful workplace harassment and “guy talk.” Employers should have specific policies prohibiting workplace harassment and providing employees with mechanisms to raise complaints about that type of misconduct. Then, employers must conduct prompt and thorough investigations of those complaints. Rather than placing their faith in a court (or jury) being able to distinguish between the two, employers may want to remind their supervisors that repeated sexual pantomime and banter is never a good idea—no matter the gender of the participants.

Contributing Author

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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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