A male employee taunted for not being “manly” enough prevailed on a Title VII claim against his employer in the Fifth Circuit Court of Appeals.
The employee and his male supervisor were both heterosexual. However, the employee did not conform to the supervisor’s view of how a man should behave. So, the supervisor called the employee a “princess” and a “faggot.” The supervisor also simulated sex with the employee when the employee was bent over and exposed himself to the employee while urinating. The employee was also told that he was “kind of gay” because he used Wet Ones.
Boh Brothers Construction (the employer) contested the EEOC suit, asserting that gender-stereotyping evidence cannot establish a same-sex harassment claim. In the alternative, Boh Brothers argued that even if the EEOC was permitted to prevail on such a claim, the evidence before the court was insufficient in this case. The Court of Appeals rejected these claims. The evidence reflected a working environment saturated with sex-based epithets about Mr. Wood’s sexuality in addition to the physical acts of flashing and humping at work. However, the punitive damages award was reversed because the employer was not aware that the conduct was unlawful and thus could not meet the standard for malice. The vocal and large dissent of the sixteen-judge court contended that the standard for proving same-sex harassment claims is more heightened than traditional sex harassment cases. The dissent found that this case did not meet the increased standard.