Under Title VII, an unlawful employment practice is established when an employee demonstrates that gender is a motivating factor for an adverse employment action.  Under that analysis, a number of federal appellate courts have determined that adverse treatment of an individual because he or she does not fit the stereotypical characteristics of his or her gender may be a violation of Title VII.  However, the 5th U.S. Circuit Court of Appeals recently side-stepped that trend and reversed a jury’s decision on the issue.  EEOC v. Boh Brothers Construction Co., LLC, 5th Circ., No. 11-30770, July 27, 2012.  In that case, the Court reversed a substantial jury verdict of actual and punitive damages in favor of Kerry Woods, a male construction worker, and directed dismissal of his claims.

Woods began working with Boh Brothers as an ironworker in November of 2005.  Beginning in early 2006, Woods was assigned to a maintenance crew for the Twin Spans Bridge between New Orleans and Slidell, Louisiana.  The crew superintendent, Chuck Wolfe, referred to Woods as “faggot” and princess,” approached him from behind with lewd actions simulating sexual conduct, and allegedly exposed himself to Woods on a number of occasions.  Although there was no evidence that either man was homosexual or attracted to other men, it is undisputed that Woods was “the primary and constant victim of Wolfe’s offensive abuse and harassment, much of it in the nature of sexual vulgarity.”  Woods complained to his crew foreman about Wolfe’s behavior and remarks, but no action was taken on the issue.

In November 2006, an inspection contractor notified Wolfe that Woods had requested to view maintenance crew members’ time sheets, which at the time was a terminable offense.  Wolfe notified his own supervisor, Duckworth, of that possible policy violation, also telling Duckworth that he “didn’t care for” Woods because Woods was “different” and “didn’t fit in” with the other crew members. 

Duckworth met with Wolfe and Woods, at which time Woods complained in detail about Wolfe’s harassment.  Woods was sent home for three days without pay.  After investigating Woods’ complaints, Duckworth determined that Wolfe’s behavior, although admittedly unprofessional, did not constitute sexual harassment.  Woods then was transferred to another crew, but ultimately was laid off for “lack of work.” 

Woods filed discrimination charges with the EEOC, claiming sexual harassment and retaliation.  In 2009, the EEOC brought an enforcement action in district court on Woods’ behalf on both claims.  After a three-day trial, a jury found in Woods’ favor on the harassment claim, but in favor of the company on the retaliation claim.  Woods was awarded $200,000 in compensatory damages and $250,000 in punitive damages.  When the lower court denied Boh Brothers’ motion for judgment as a matter of law, Boh Brothers appealed.  The Fifth Circuit reversed that denial, vacated the judgment in Woods’ favor, and remanded the matter for “entry of judgment dismissing the case.”

Of particular interest is the fact that the Fifth Circuit skirted the issue of whether gender stereotyping is a cognizable form of same-sex harassment under Title VII by finding that there wasn’t enough evidence in the record to prove that Woods was not stereotypically masculine.  According to the court, unless a plaintiff can prove that he does not conform to stereotypes, he cannot succeed on the theory that he was treated differently because of that nonconformance.  The issue of whether the Court took the jury’s observations of Woods’ demeanor and characteristics into account in reaching its verdict in his favor is not addressed in the Fifth Circuit’s opinion.

What led to this decision is the Fifth Circuit’s differentiation between gender stereotyping and same-sex harassment, and its unwillingness to conflate those two types of actions into a single method of proving Title VII violation.  The Court first cited to the Supreme Court’s 1998 decision in Oncale v. Sundowner Offshore Services Inc., in which the Supreme Court set forth the basis of same-sex behavior which violates Title VII, which typically includes homosexual proposals of sexual activity to a plaintiff or general hostility toward homosexuals in the workplace.  Woods’ claims did not fall within those categories since there was no evidence of homosexuality, and the Fifth Circuit was unwilling to extend Oncale to cover claims of general gender stereotyping.  It then analyzed Woods’ claims under the Supreme Court’s decision in Price Waterhouse v. Hopkins, a 1989 decision in which the Supreme Court found that an employer can be liable for adverse actions that are based on a belief that an employee does not conform to a society’s expectations for that employee’s gender.  Because of the dearth of evidence of Woods’ non-conformance with gender stereotype, and based on Wolfe’s testimony that “he did not view Woods as feminine,” the Fifth Circuit found this case in “sharp contrast” to Price Waterhouse, and declined to find gender stereotyping here.

The line between gender stereotyping and discrimination “because of sex” can be difficult to draw.  However, employers must recognize that an employer who takes an adverse action against an individual because he or she does not fit within sexual stereotypes may be engaging in sex discrimination if the individual can prove that the discrimination would not have occurred but for the individual’s sex/non-conformance to stereotype.  If a company’s disciplinary actions are meant to punish or belittle non-compliance with gender stereotypes, the actions may constitute a violation of Title VII’s “because of sex” provision.