On September 27, iron worker Kerry Woods and the Equal Employment Opportunity Commission pulled off a significant labor and employment law victory in the Fifth Circuit Court of Appeals. The en banc ruling reversed an April 2012 decision by a three-judge panel from the same court, and validated Woods’ claims that he suffered gender discrimination at the hands of his manager, Chuck Wolfe, while working on a construction project for Boh Brothers Construction Company in New Orleans in 2006.
The 10-6 decision in EEOC v. Boh Brothers Construction Company [PDF] reveals a potential gap in companies’ antiharassment policies: the lack of effort to educate employees and form policies regarding gender-stereotyping harassment.
Paul Mollica, a plaintiffs employment attorney at Outten & Golden, said gender-based harassment policies tend to be written to protect women against verbal or physical harassment perpetrated by men, but often ignore other forms of harassment.
“A lot of polices I see that are oriented toward that, and it overlooks another equally challenging kind of harassment,” he told CorpCounsel.com, “which is when people get singled out when they don’t fit in.”
According to the Fifth Circuit decision, Woods’s claims, brought under Title VII of the Civil Rights Act of 1964, accused Wolfe of calling him names like “faggot” and “princess.” Woods also said Wolfe made obscene gestures at him and exposed himself to Woods while urinating publicly at the worksite, while at the same time “sometimes waving at Woods and smiling.”
The court determined that Wolfe’s actions violated Title VII because they were carried out “because of sex”—asserting that Wolfe’s speech qualified as discriminatory because, regardless of Woods’s actual sexual orientation, the speech was harassment based on lack of conformity with gender stereotypes.
Fisher & Phillips partner Tim Scott sees the outcome of EEOC v. Boh Brothers as an expansion of the ways in which a Title VII violation can be claimed. “I think we are going to see more claims, at least more lawsuits on horseplay-type conduct,” he said.
In isolated workplaces like the Louisiana Twin Spans Bridges site, where Woods and Wolfe worked, he noted, this expansion of Title VII can be especially scary for companies, because unlike in more white-collar environments, in these settings, lower-level managers are often the sole way of stopping questionable behaviors. “Making sure your mangers really receive the training, and are understanding the training, and are buying into the training,” he said. “That’s really your only defense.”
Michelle Phillips, partner at labor and employment law firm Jackson Lewis, told CorpCounsel.com that companies need to take gender-based harassment training seriously, without seeing it as merely a compliance issue.
In the case of Boh Brothers Construction, which she called “a classic case of what not to do,” she explained that there was little detail provided to employees on what antiharassment policies were, and virtually no training. Furthermore, she added, when Woods complained to the company’s higher-ups about Wolfe’s behavior, they failed to carry out a prompt and thorough investigation or to document the investigation process, which weakened their case in court.
According to Phillips, training and building awareness of the myriad terms that might constitute verbal gender-stereotype harassment should be a high priority for companies that are serious about avoiding litigation. “To me, this case is a wakeup call that the EEOC, and now the Fifth Circuit, are taking a stand,” she said.