The U.S. Fifth Circuit Court of Appeals has restored a jury’s verdict that a construction company illegally subjected an ironworker to severe and pervasive harassment based on gender stereotypes.
The ruling came in regards to a U.S. Equal Employment Opportunity complaint filed against Boh Bros. construction company on behalf of ironworker Kerry Woods.
The EEOC’s complaint said BB superintendent Chuck Wolfe verbally harassed Woods, exposed himself to the employee and made taunting gestures of a sexual nature.
The harassment, according to the complaint, took place during work on the I-10 Twin Span project over Lake Pontchartrain between Slidell and New Orleans in Louisiana.
At the trial, the EEOC presented evidence that Wolfe harassed Woods because he thought he was feminine and did not conform to the supervisor’s gender stereotypes of a typical “rough ironworker.”
A jury ruled in favor of Woods and the EEOC, but a three-judge panel of the circuit court of appeals reversed the verdict, finding that Woods was not harassed because of sex.
The EEOC asked for a review by the full appeals court, which vacated the panel’s decision and reinstated the jury’s verdict.
“We are gratified that the Fifth Circuit recognized ‘the good common sense of the American people,’ as the court put it, and reinstated the jury verdict,” said EEOC general counsel David Lopez in a news release. “We agree with the Fifth Circuit that ‘few institutions are as venerable as that of trial by jury.’”
The majority on the court held, in a first for the circuit, that harassment is “because of sex” if it is based on lack of conformity with gender stereotypes.
The Fifth Circuit also held that the issue is whether the harasser considered the victim to deviate from gender stereotypes, and not whether the victim fails in fact to conform to those stereotypes.
So, the court ruled, what mattered was how Wolfe saw Woods.
“This is a very significant outcome to employees who work in Louisiana, Mississippi and Texas, which is the region covered by the Fifth Circuit,” said Jim Sacher, EEOC’s regional attorney for the Houston District, which oversaw the case. “It makes unquestionably clear to all employers that if they harass an employee because of gender stereotypes, they are breaking the law.”
The case now goes back to the district court level, where damage amounts must be set.
The construction company is based in New Orleans and employs more than 1,500 people. After Hurricane Katrina struck the area in 2005, the company worked on many publicly funded rebuilding and expansion projects, according to the EEOC.