There are plenty of ways to prove employment discrimination in the workplace, but apparently evidence that a construction supervisor is a “world-class trash talker and the master of vulgarity” is not enough to substantiate allegations of same-sex discrimination, according to a recent 5th U.S. Circuit Court of Appeals decision.
The background to the July 27 decision in Equal Employment Opportunity Commission v. Boh Brothers Construction Co. is as follows. In 2009, the EEOC brought an enforcement action against Boh Brothers in an Eastern District of Louisiana trial court, alleging sexual harassment and retaliation under Title VII. Specifically, Kerry Woods, a male construction worker on an all-male crew, claimed that his supervisor, Charles “Chuck” Wolfe of Boh Brothers, engaged in “same-sex” harassment against Woods by referring to him in raw homophobic epithets. The defendant denied the allegations. A jury found in the plaintiff’s favor on the harassment claim and in the defendant’s favor on the retaliation claim. The jury awarded Woods $450,000 in damages, a judgment that Boh Brothers appealed.
“There is no claim or evidence that either Woods or Wolfe is homosexual or effeminate. There is plenty of evidence that Wolfe is a world class-trash talker and the master of vulgarity in an environment where these characteristics abound,” wrote Judge E. Grady Jolly. “And there is Wolfe’s accusation that Woods was girlish because Woods used ‘Wet Ones’ when he went to the toilet. But that seems to be about all of the non-manly characteristics of which Woods was accused.”
The 5th Circuit reversed the jury’s verdict, finding that the evidence is insufficient to support the jury’s verdict that Woods was discriminated against because of sex.
“There is the question raised in this appeal whether sex stereotyping is a cognizable form of same-sex harassment under Title VII. As the facts allow for resolution on narrower grounds, we leave that question for another day,” Jolly concluded.
Paul Ramshaw, an attorney with the EEOC who argued the case on appeal, says the agency has not yet decided whether to ask for rehearing in the case. Walther Christy, a director in the New Orleans office of Coats, Rose, Yale, Ryman & Lee, could not be reached for comment.
--- John Council