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
