Management's Workplace Lawyers

Stereotyping Based on Sex Is Discrimination.

October 30, 2013

Sex-stereotyping can be the basis of a claim under Title VII, which prohibits discrimination and harassment because of sex, among other things, according to the U.S. Court of Appeals for the Fifth Circuit.  

Facts of the Case:  In EEOC v. BOH Bros. Const. Co., an ironworker on a bridge maintenance crew was subjected to almost-daily verbal and physical harassment by his supervisor because he did not 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. 

After the employee complained, the company did a brief investigation and concluded that the supervisor's behavior, although unprofessional, was not sexual harassment.  The employee then filed a charge of discrimination with the EEOC, who subsequently sued the company on behalf of the employee.  At trial, the jury found that the employee had, in fact, been subjected to illegal harassment.  On appeal, a 3-judge panel of the Fifth Circuit overturned the jury verdict, on the grounds that there was not sufficient evidence to establish 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 Fifth Circuit (an "en banc" review).

The Court’s Decision.  The Fifth Circuit (en banc) reversed the panel’s decision and 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 Fifth 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."


Lessons Learned.  In this case, the employee's actual sexual orientation was not at issue, and the case does not recognize sexual orientation discrimination as a violation of Title VII.  To the extent that an individual, regardless of sexual orientation, however, does not conform to a masculine or feminine sexual stereotype, he or she would still be entitled to the protection of Title VII.  Thus, it is critical that managers (and other employees) refrain from stereotyping their co-workers.