Construction Worker Too Masculine to Win Title VII Claim

By Robyn Hagan Cain on July 31, 2012 | Last updated on March 21, 2019

Title VII doesn't guarantee a work environment characterized by civility or charm. It won't atone for a “world-class trash talker and the master of vulgarity in an environment where these characteristics abound.”

Last week, the Fifth Circuit Court of Appeals reiterated that Title VII merely prohibits discrimination with respect to employment compensation, terms, conditions, or privileges based on race, color, religion, sex, or national origin.

The Equal Employment Opportunity Commission (EEOC) brought a Title VII case against Boh Brothers Construction Company on behalf of Kerry Woods, a male construction worker on an all-male crew. Woods claimed that the crew superintendent, Chuck Wolfe, engaged in same-sex harassment against him by referring to him with homophobic epithets and lewd gestures.

The EEOC's case hinged on the proposition that sex-stereotyping by a co-worker of the same sex can constitute sexual harassment under Title VII.

The EEOC claimed that Wolfe harassed Woods because Woods did not conform to Wolfe's view of the male stereotype. Here, other than his regular use of Wet Ones wipes instead of toilet paper -- which the Fifth Circuit will have you know, is not that effeminate -- there was no evidence that Wolfe thought Woods was anything less than masculine.

Yes, according to the court, you need evidence that someone is effeminate to prove sex-stereotyping because "it is a circular truth that a plaintiff may not recover based on nonconformance to gender stereotypes unless the plaintiff conforms to nonconformance gender stereotypes."

Boh Brothers, for what it's worth, argued that same-sex stereotyping, even assuming it was present here, isn't sexual harassment under Title VII because it is not one of the three evidentiary paths established to show same-sex harassment by Oncale v. Sundowner Offshore Services, Inc.

We don't know if the Fifth Circuit Court of Appeals agreed with Boh Brothers, because it declined to address the sex-stereotyping question. In addition to Woods being too manly to win his case, the court noted that misogynistic and homophobic epithets were bandied about routinely among crew members, and the recipients, including Woods, "reciprocated with like vulgarity."

From what we do know, it seems unlikely that the court would reach the conclusion that sex-stereotyping counts as sexual harassment. So far, there's a circuit split: The Ninth Circuit says sex-stereotyping is verboten harassment and the Sixth Circuit says sexual harassment must fall within one of the three Oncale categories. If forced to choose, we're betting that the Fifth Circuit would adopt the Sixth Circuit's stance.

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