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The Labor & Employment Report

Sex-Stereotyping Is Discrimination

Posted in Employment Discrimination, Sexual Harassment

We all know that stereotyping can be unfair and sometimes just dumb.  But expecting people to be manly men and girly girls can actually get you into legal trouble.  Sex-stereotyping can be the basis of a claim under Title VII, which prohibits discrimination and harassment because of sex, among other things.  A recent example of this involved a supervisor’s same-sex harassment of a male employee because he was not sufficiently masculine, in the supervisor’s view.

In EEOC v. BOH Bros. Const. Co. (Sept. 27, 2013), an ironworker on a bridge maintenance crew was subjected to almost-daily verbal and physical harassment by his supervisor because he didn’t act like a man, according to the supervisor.  In fact, the supervisor admitted that some of his teasing was because the employee used Wet Ones instead of toilet paper, which the supervisor thought was “kind of gay” and “feminine.”  Often 2-3 times a day, the supervisor would call the employee names like “pu–y,” “princess,” and “fa–ot.”  Several times a week, the supervisor would walk up behind the employee and pretend to hump him.  The supervisor deliberately showed his penis to the employee while urinating, and made other sexually offensive comments to the employee as well.  (Sounds like he’s still in junior high, doesn’t it?)

After the employee complained, the company did a brief investigation and concluded that the supervisor’s behavior, although unprofessional, was not sexual harassment.  The EEOC stepped in and sued the company.  At trial, the jury found that the employee had, in fact, been subjected to illegal harassment.  On appeal, a 3-judge panel of the U.S. Court of Appeals for the Fifth Circuit overturned the jury verdict, on the grounds that there wasn’t sufficient evidence that the harassment was “because of . . . sex” in violation of Title VII.  The EEOC then asked for a review of the panel’s decision by all of the judges on the 5th Circuit (an “en banc” review).

The 5th Circuit found that “a plaintiff can satisfy Title VII’s because-of-sex requirement with evidence of a plaintiff’s perceived failure to conform to traditional gender stereotypes.”  The 5th Circuit then found that the supervisor’s conduct was certainly “because of” the employee’s sex.  The evidence showed that the supervisor thought the employee was not a “manly enough man” and that he “hurled sex-based epithets uniquely at [the employee] two-to-three times a day, almost every day, for months on end.”

In this case, the employee’s actual sexual orientation wasn’t at issue, and the case doesn’t recognize sexual orientation discrimination as a violation of Title VII.  To the extent that an individual, regardless of sexual orientation, however, doesn’t conform to a masculine or feminine sexual stereotype, he or she would still be entitled to the protection of Title VII.  Bottom line – don’t stereotype!