By Carter Meader
The Fifth Circuit has granted the EEOC’s petition for rehearing en banc for Equal Employment Opportunity Commission v. Boh Brothers Construction Co., No. 11-30770. The announcement comes approximately nine months after the original Fifth Circuit panel overturned a verdict in favor of the Plaintiff, Kerry Woods. The Fifth Circuit en banc panel could address an issue the original panel side-stepped and consider whether a sexual stereotyping claim can exist under Title VII and if so, what the standard is for establishing that claim.
The sex stereotyping theory derives from the Supreme Court’s decision in Price Waterhouse v. Hopkins, and has been recognized in the First, Second, Third, Eighth, Ninth, Tenth, and Eleventh Circuits. The theory allows a claim under Title VII where an employee is harassed or discriminated against for failing to conform to traditional gender stereotypes. In Price Waterhouse, for example, the plaintiff claimed that she had been denied partnership in her accounting firm because some of the partners felt that she was “macho,” needed “a course at charm school,” and should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” A plurality of the Court found that the employer discriminated on the basis of gender by acting on the belief that women should not act a certain way. Again, in Koren v. Ohio Bell Telephone Co., an Ohio district court found that the male plaintiff was discriminated against for engaging in gender nonconforming behavior when he took his spouse’s surname—a “traditionally feminine practice.” This theory has formed, in large part, in response to universal refusal to extend Title VII to cover discrimination against an employee because of his or her actual or perceived sexual orientation. The theory has also been adopted and used by transgender individuals, who by definition challenge sex and gender stereotypes.
The plaintiff in EEOC v. Boh Brothers is a male construction worker who is part of an all-male construction crew. He claimed that the crew superintendent, Charles “Chuck” Wolfe engaged in same-sex harassment against him by referring to him in homophobic epithets and using lewd gestures, including exposing himself. He also claims that Wolfe called him “girlish” for using Wet Ones when he used the bathroom. While it is clear that Woods was the subject of harassment, it is less clear whether there is a clear case for sexual stereotyping here.
In its first hearing, the Fifth Circuit panel dodged the direct question of whether sexual stereotyping violated Title VII, but suggested that, if such a claim is viable, the standard should consider whether the plaintiff objectively failed to comply with the gender norm. The EEOC in its brief, however, argued for a subjective standard that would consider whether the harasser subjectively perceived that the plaintiff failed to conform to a gender norm. Now that the case will be heard before the Fifth Circuit en banc, the court could clarify whether it will follow its sister circuits in recognizing a sexual stereotyping claim under Title VII and could resolve the objective versus subjective standard question.
Because of the factual situation in this case, it might not be the best case for the Fifth Circuit to adopt the sexual stereotyping standard. It’s unclear just what the court is thinking—whether it’s looking for an opportunity to join with its sister circuits and recognize the theory, or for the right time and place to strike down the claim. At the very least, it is an important case to watch.