By a 10-6 vote, the 5th Circuit sitting en banc upheld a jury finding of sexual harassment liability under Title VII for an iron worker subjected to gay slurs and lewd gestures because he failed to conform to his supervisor’s view of “how a man should act.” Reversing an earlier panel opinion, the 5th Circuit held that a plaintiff may rely on gender-stereotyping evidence to support a violation of Title VII in a same-sex discrimination case. The 5th Circuit generally considers two factors in same-sex hostile work environment claims: (1) whether the conduct was discriminatory based on sex; and (2) whether the alleged conduct was “severe and pervasive” enough to create a hostile work environment.

Because of sex

At the district court level, the employer argued that the Equal Employment Opportunity Commission (EEOC) cannot rely on gender-stereotyping evidence to establish a same-sex harassment claim as a matter of law. The 5th Circuit, however, interpreted Supreme Court precedent to allow evidence of a plaintiff’s failure to conform to gender stereotypes to support a claim under Title VII. The Supreme Court has charted three evidentiary avenues that a plaintiff may use to support a same-sex harassment claim under Title VII. First, the plaintiff may show that the harassment was the result of a homosexual desire directed at the plaintiff. Second, the plaintiff may show that the harassment was so derogatory that it was clearly motivated by the “general hostility to the presence” of a specific gender in the workplace. Third, the plaintiff may offer “comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.” Here, the defendant employer argued that because the evidence did not fall into any of these three categories, the EEOC could not prove that the alleged harassment was because of sex.

The 5th Circuit, however, rejected the contention that these three specific methods were the only way for the EEOC to illustrate that same-sex harassment was because of sex. The 5th Circuit joined the Third, Seventh, Eighth, and Tenth Circuits in holding that the Supreme Court’s evidentiary paths are illustrative rather than exclusive, and that a plaintiff may rely on gender stereotyping to support a claim of discrimination because of sex under Title VII

Severe and pervasive

The Court noted that the inquiry into whether behavior is sufficiently severe or pervasive to support a Title VII claim is necessarily fact specific. A court examines whether the behavior is such that a reasonable person in the plaintiff’s position would find it “severely hostile or abusive.”  The EEOC pointed out that the harasser regularly directed derogatory language at the plaintiff, exposed his genitals, and engaged in simulated sex acts around the plaintiff. The Court determined that a reasonable jury could find that this conduct was severe and pervasive enough to support a finding for the plaintiff.

Employer’s affirmative defense

Finally, the Court rejected the employer’s affirmative defense that it had exercised reasonable care to prevent and promptly correct the harassment and that the plaintiff employee unreasonably failed to take advantage of company procedure in place to prevent or correct the harm. The Court found that it is incumbent upon the defendant employer to prove both elements of the defense by a preponderance of the evidence. The 5th Circuit stated that the employer’s failure to articulate a clear sexual harassment policy, its cursory investigation of the plaintiff’s complaints, and the fact that the harassing employee was not substantially punished for his actions were sufficient to allow a jury to reject the employer’s affirmative defense. Because the Court found that the defendant employer’s policies and corrective measures were insufficient, it did not examine whether the plaintiff employee took full advantage of any preventative or corrective measures.