Same-sex sexual harassment made headlines recently after the Equal Employment Opportunity Commission reached settlements with two different employers. In a closely watched case out of Louisiana, the agency accused Boh Brothers Construction of turning a blind eye to gay slurs and taunting gestures by a supervisor targeting an ironworker. A federal jury found the construction company liable. On appeal, the en banc Fifth U.S. Circuit Court of Appeals issued a 68-page decision with multiple dissents affirming the liability finding and holding that gender stereotyping could form the basis of a sexual harassment claim. The parties then reached a $100,000 deal. In the second case, Washington-based Roy Farms refused to admit liability for allegations that a supervisor made inappropriate comments and touched orchard workers sexually. The company did agree to pay $85,000. For employers, the lesson is clear: regardless of the sex of the parties involved, sexual harassment violates Title VII and can lead to serious liability.
An ironworker on a project near New Orleans, Kerry Woods reported to the EEOC that he was subjected to harassment by a male supervisor, from verbal abuse to sexual gestures to having the man expose himself.
Although Woods is heterosexual, the supervisor testified at trial that he thought the worker was “feminine” and failed to conform to gender stereotypes of “rough iron workers.” A jury sided with Woods on his Title VII hostile work environment sexual harassment claim and awarded a total of $450,000, including $250,000 in punitives. The federal court judge reduced the award but upheld the liability determination.
On the first appeal to the Fifth Circuit, a three-judge panel of the court reversed the jury’s liability finding. But sitting en banc, the court held in a 10-to-6 opinion that both the law and evidence supported the liability finding because gender stereotypes could form the basis of a Title VII sexual harassment claim.
In light of the September ruling, the parties reached a deal. Boh Brothers agreed to pay $125,000 in compensatory damages to Woods pursuant to a consent judgment. The settlement ends the high-profile litigation.
A second case reminding employers to be cognizant of same-sex harassment in the workplace occurred at a hops farm in Moxee, Washington. There, according to the EEOC, an orchard supervisor engaged in a two-year campaign of harassment against male workers. The agency said the supervisor used vulgar terminology to express his interest in having sex with the workers and made physical contact by caressing their faces, backs, and buttocks.
Despite the workers reporting the conduct, nothing was done, the EEOC claimed. Fearing for his safety, the complaint alleged that one of the workers quit.
After conducting a conciliation process and filing suit, the parties were able to agree upon a settlement. Although Roy Farms declined to admit wrongdoing for the conduct of the orchard supervisor, the company will pay four workers a total of $85,000.
The farm also promised to provide equal employment opportunity policies to its workers (in both English and Spanish), update the company’s complaint procedures to increase accessibility, provide training to managers, who will then be held accountable for harassment by their workers, and report any harassment complaints to the EEOC for a three-year period.
To read the consent judgment in EEOC v. Boh Brothers Construction, click here.
To read the consent decree in EEOC v. Roy Farms, click here.