Lawsuit Demonstrates that Workers in New Jersey and Elsewhere May Not be Sexually Harassed for Failing to Conform to Gender Stereotypes

A federal appeals court has ruled in favor of a construction worker in a sexual harassment lawsuit. In EEOC v. Boh Bros. Construction Co., the nation’s Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of a Louisiana man who claims he was subjected to verbal and physical harassment by a male work supervisor because he does not conform to the man’s gender stereotypes.

The employee was initially hired by Boh Bros. Construction Co. to perform welding and iron repair work on a Louisiana bridge following Hurricane Katrina. He was later transferred to a bridge maintenance crew consisting of about six men and one supervisor. According to the record presented at trial, the supervisor regularly used vulgar language at work. A few months after his transfer, the supervisor began calling the employee names, questioning his masculinity, and performing harassing acts that “embarrassed and humiliated” him.

After the employee complained about the supervisor’s behavior, he was transferred to another work crew. Later, the supervisor learned that the employee violated a company policy and told him to meet with the general supervisor. The employee again complained about the harassment and was sent home without pay. The employee claims there was no discussion of the policy violation. The general supervisor apparently performed a perfunctory investigation of the harassment allegations and determined they were without merit. Two days later, the employee was told to report to work. A few months after he filed a discrimination complaint with the EEOC, he was laid off for lack of work.

At trial, the EEOC obtained a jury verdict on behalf of the employee for both sexual harassment and retaliation. Boh Bros. asked the trial court to vacate the jury’s decision and issue a judgment as a matter of law. After the trial court refused, Boh Bros. appealed the case to the United States Court of Appeals for the Fifth Circuit. On appeal, a three-judge panel overturned the jury’s verdict due to lack of evidence and the EEOC successfully sought en banc review of the case.

A 10-judge majority relied on Supreme Court precedent in Price Waterhouse v. Hopkins to hold for the first time that evidence with regard to gender stereotypes may be used to support a same-sex harassment claim. The court also stated that the relevant inquiry was not whether the employee actually conformed to gender stereotypes, but instead whether the harassment resulted from the supervisor’s belief that he failed to conform.

At trial, the supervisor testified that he did not consider his employee to be manly and harassed him because of it. Because of this admission, the court held there was sufficient evidence to support the jury’s award.

Please call the Resnick Law Group, P.C. at 973-781-1204 or (646) 867-7997 if you believe you were unlawfully harassed or discriminated against at a New Jersey or New York workplace. The hardworking employment law attorneys at the Resnick Law Group represent current and former employees in both New Jersey and New York regarding matters that involve workplace discrimination and harassment. To discuss your situation with a caring advocate,do not hesitate to contact the Resnick Law Group through our website today.

More Blog Posts:

Strippers Win Employee Misclassification Case in New York, The New Jersey Employment Law Firm Blog, November 5, 2013
New Jersey Law Allows Victims of Domestic Violence and Sexual Crimes to Take Unpaid Work Leave, The New Jersey Employment Law Firm Blog, November 4, 2013
Additional Resources:

Fifth Circuit Court of Appeals Reinstates Same-Sex Harassment Verdict Against Boh Bros. Construction Co., U.S. Equal Employment Opportunity Commission Press Release dated September 30, 2013


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