The U.S. Equal Employment Opportunity Commission has settled a pair of same-sex harassment lawsuits—hard-fought battles that illustrate the challenges of litigating such cases.
One of the suits, against New Orleans-based Boh Brothers Construction Co., settled for $125,000—almost four times less than a jury originally awarded the victim in 2011. Still, the EEOC claimed it as a victory after the U.S. Court of Appeals for the Fifth Circuit, sitting en banc, in September overruled a three-judge panel that tossed the case.
The other suit, against Roy Farms in eastern Washington, was quietly resolved on Feb. 27 for $85,000. The settlement, which was not announced by the EEOC, came despite original allegations by the agency of misconduct by a supervisor who “constantly barraged male workers with inappropriate comments,” touched them sexually and forced them to watch him urinate.
Same-sex harassment cases have been a growing part of the EEOC’s docket since 1998, when the U.S. Supreme Court in Oncale v. Sundowner Offshore Services ruled unanimously that Title VII of the Civil Rights Act bars the conduct.
In fiscal year 2013, 17.6 percent of the EEOC’s sexual harassment charges were filed by men, down slightly from 2012 but up from previous years. The EEOC does not keep statistics on the sex of the harasser, but has said anecdotal evidence indicates that many also are men.
“Sexual harassment of any sort, regardless of the genders involved, is unlawful,” agency spokeswoman Christine Nazar said via email. “We call on employers to stop the alleged unlawful conduct when they become aware of it, in order to avoid the possibility of litigation by the EEOC.”
Part of the challenge for the EEOC is proving not just that someone acted inappropriately, but that the actions were “based on sex or motivated by sex.” To do so, the EEOC could show, for example, that the behavior was triggered by sexual desire, that the harasser had a general hostility toward a particular gender, or that the harasser treated men and women differently.
In the Boh case, the Fifth Circuit ruled harassment could also occur because the victim didn’t conform to a gender stereotype.
The case began in 2006, when Boh was working on a pair of bridges over Lake Pontchartrain. According to the EEOC, a supervisor taunted and verbally abused Kerry Woods, made sexually explicit gestures and exposed himself to him because he thought Woods was feminine and did not fit the manly stereotype of a “rough iron worker.”
The EEOC sued in U.S. District Court for the Eastern District of Louisiana in 2009 (the same court where the Oncale case originated). In March 2011, a jury found that Boh permitted a hostile work environment and awarded Woods $451,000 in back pay, compensatory and punitive damages. The district court reduced the award to $301,000 because of statutory limits.
Boh appealed to the Fifth Circuit, and in April 2012, a three-judge panel reversed the jury verdict, finding that the evidence did not establish that Woods was harassed “because of sex.”
In September 2013, the en banc panel ruled in favor of the EEOC, the first time the circuit decided that the gender stereotype theory could be used to prove same-sex harassment. The court of appeals remanded the case to the district court for further proceedings, including setting the proper amount of emotional damages. The court also reversed the award for punitive damages.
“This resolution remains faithful to the jury’s verdict by providing meaningful relief to Mr. Woods and helping to prevent Boh Bros. from discriminating again,” EEOC general counsel David Lopez said in a written statement. “The full Fifth Circuit here reaffirmed the critical part juries play in deciding discrimination cases.”
Boh was represented by Walter Christy of Coats Rose, who said his client agreed to settle because “we want to put it behind us and move on.”
On Feb. 27, the agency entered into a consent decree with Roy Farms, which agreed to pay $85,000—but denied wrongdoing—to settle a same-sex harassment case filed in October 2012.
The EEOC sued on behalf of four workers, alleging a hostile work environment based on sex. In its complaint, the agency said the supervisor threatened to sexually assault male employees if they did not do their jobs properly and touched them sexually.
Roy Farms responded that at least one victim never reported the harassment, so the farm had no opportunity to investigate or eliminate any problems. The farm also said the EEOC also failed to investigate or conciliate in good faith.
A jury trial was set for May 12 when the case settled.
Roy Farms was represented by Brendan Monahan, a partner at Stokes Lawrence. In a statement, the company said it was “pleased to have resolved a lawsuit by the Equal Employment Opportunity Commission on terms that acknowledge Roy Farms’ long-standing commitment to providing a safe and respectful work environment for its employees.”
The company called the payment “modest by EEOC settlement standards and is less than 10% of what the EEOC demanded before filing suit in 2012.”