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Media Alerts - EEOC v. Boh Brothers Construction Co., L.L.C. - Fifth Circuit
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September 29, 2013
  EEOC v. Boh Brothers Construction Co., L.L.C. - Fifth Circuit
Headline: En Banc Fifth Circuit Affirms Title VII Liability Based on Gender-Stereotyping in a Same-Sex Sexual Harassment Suit.

Area of Law: Employment discrimination.

Issue Presented: Whether the male-on-male sexual harassment by the employee's supervisor met the two-prong standard for same-sex discrimination and whether the punitive damages awarded by the jury were supported by the record.

Brief Summary: While working on a bridge-maintenance crew, one member of the crew was singled out for "almost-daily verbal and physical harassment because [he] did not conform to [the crew's superintendent's] view of how a man should act." The EEOC brought suit on the victim's behalf, claiming this sexual harassment was motivated by gender-stereotyping and was therefore a violation of Title VII. At trial, the jury found for the EEOC and awarded both compensatory and punitive damages. On appeal, a panel of the U.S. Court of Appeals for the Fifth Circuit overturned the jury verdict. However, on rehearing en banc, the Fifth Circuit upheld the jury verdict. The Court relied on extensive evidence of daily name-calling and repeated sexualized physical acts targeted at the victim to find that the record supported the jury's findings that the harassment violated Title VII. Nevertheless, the Court vacated the $250,000 in punitive damages awarded by the jury because the harassment was not done with the knowledge that it was against federal law.

Significance: The Fifth Circuit directly holds that a plaintiff can rely on gender-stereotyping evidence to support a violation of Title VII in a same-sex discrimination case.

Extended Summary: While working on an all-male bridge-maintenance crew, one member of the crew was singled out for "almost-daily verbal and physical harassment because [he] did not conform to [the crew's superintendent's] view of how a man should act." Both the harasser and the target of the harassment were heterosexual. After complaining to a higher supervisor, the injured party was put on leave without pay, reassigned to another crew, and eventually fired. The EEOC brought suit on behalf of the victim.

At trial, a jury found that the harassment violated Title VII and awarded $201,000 in compensatory damages and $250,000 in punitive damages. The district court adjusted the compensatory damages down to $50,000 to comply with a statutory cap limiting total damages to $300,000. Following the judgment, the district court denied motions for judgment as a matter of law and for a new trial. On Boh Brothers' appeal, a panel overturned the jury verdict citing a lack of evidence to sustain the jury's finding that the harassment violated Title VII's protection against sex discrimination. The EEOC then requested en banc review.

On rehearing, the Fifth Circuit rejected Boh Brothers' claim that a Title VII same-sex discrimination case cannot rely on gender-stereotyping evidence. The Court cited numerous gender-stereotyping decisions based on the Supreme Court's leading precedent, Price Waterhouse. It also expressly agreed with other circuits in interpreting the three evidentiary paths for claiming same-sex harassment discussed in the Supreme Court's Oncale decision as "illustrative, not exhaustive," thereby allowing for the present claim which did not fit within the three paths the Oncale Court established.

The Fifth Circuit then reviewed the jury verdict, stating that the context of this case required that two elements be met: (1) was the harassment "because of . . . sex" and (2) was it severe and pervasive. Finding that the harassment fulfilled the first element, the Court quoted testimony of the harasser in which he admitted to calling the victim names because he found the victim's usage of a personal-hygiene item as feminine. Responding to Judge Jones's claim in her dissenting opinion that the "judgment portends a government-compelled workplace speech code," the majority emphasized that there were other sexualized acts which accompanied the name-calling including the harasser exposing his genitals to the victim and simulating anal sex with the victim. The Court concluded that taken as a whole the record provided enough evidence that the jury's finding of sexual harassment should not be overturned. Regarding the second element, the Court ruled there was enough evidence of daily and repeated harassment to support the jury's finding that the harassment was severe and pervasive. Though the harassment took place on an all-male construction site, the majority found that jury was able to analyze the harassment within the proper social context and still deem the actions as rising to the level of severity required. After having found the evidence sufficient for a Title VII claim, the Court dismissed Boh Brothers' assertion of an affirmative defense to vicarious liability, finding that the company's nondiscrimination policies "offered no specific guidance regarding sexual harassment."

The Court also reviewed the punitive damages awarded by the jury and found that the punitive damages were not supported by the record because the defendants did not know that male-on-male harassment could violate Title VII. Therefore, the harassment was not done "with malice or with reckless indifference to the federally protected rights of an aggrieved individual." After vacating the punitive damages, the Fifth Circuit then remanded the case back to the district court to re-assess the damages award. The district court had previously reduced the compensatory damages from $201,000 to $50,000 alongside the previous award of $250,000 in punitive damages to comply with the statutory cap.

For the full opinion, please see:

Panel: En banc

Argument Date: 5/22/2013

Date of Issued Opinion: 9/27/2013

Docket Number: No. 11-30770

Decided: Affirmed in part, vacated in part, and remanded

Case Alert Author: LaDelle Davenport

Counsel: Walter W. Christy, Coats, Rose, Yale, Ryman & Lee, P.C., for Appellant Boh Brothers Construction Co., L.L.C.; Paul D. Ramshaw for Appellee Equal Employment Opportunity Commission

Author of Opinion: Judge Elrod (Jolly, dissenting; Jones, dissenting; Smith, dissenting; DeMoss, dissenting)

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

Edited: 09/29/2013 at 05:10 PM by Aaron Bruhl

    Posted By: Aaron Bruhl @ 09/29/2013 12:00 PM     5th Circuit  

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