"Boys will be Boys" A Risky Employment Policy

by Jackson Walker

In a 10-6 decision following en banc review, the United States Court of Appeals for the Fifth Circuit recently decided, in Equal Employment Opportunity Commission v. Boh Brothers Construction Co. L.L.C., that an iron worker on an all-male construction crew was illegally harassed verbally and physically by his male supervisor, in violation of Title VII of the 1964 Civil Rights Act. The decision dramatically highlights the risk to employers of tolerating a "boys will be boys" approach to the workplace (even an all-male workplace), and the corresponding importance of prohibiting both "opposite sex" and "same sex" harassment in accordance with appropriately worded policies properly communicated to all employees, including a policy on the process of submitting and investigating harassment complaints.

Origin of Sexual Harassment Discrimination. At the dawn of the establishment of sexual harassment as a viable claim under Title VII, the focus was upon "opposite gender" discriminatory treatment, usually by a male superior harassing a female underling. The next step in the development of sexual harassment law was incorporating "gender stereotyping" into the equation, that is, prohibiting discrimination that emanated from improperly ascribing certain sexually based negative characteristics to a person because of his/her behavior. As sexual harassment doctrine further evolved, courts recognized that unlawful conduct could result not only from "quid pro quo" actions (you do this for me and I’ll do that for you) but also from a hostile work environment, that is, an abusive work environment resulting from unwelcome conduct "so severe or pervasive as to alter the conditions of the victim's employment."

"Same Sex" Sexual Harassment. Then in 1998 came the breakthrough decision by the United States Supreme Court in Oncale v. Sundowner Offshore Services, Inc. Addressing a claim filed by one male against another male co-worker, the Supreme Court declared that Title VII not only outlaws "opposite sex" discrimination but also "same sex" discrimination (whether "male on male" or "female on female"). In acknowledging this expanded scope of Title VII, the Oncale Court went on to emphasize that Title VII does not impose a "general civility code" for the workplace. A plaintiff seeking to prove the presence of same sex discrimination still had to demonstrate that the discrimination occurred because of sex, where the harasser's behavior "was so objectively offensive as to alter the conditions of employment for the plaintiff."

The Oncale decision established three paths by which to prove "same sex" discrimination: (a) a homosexual harasser motivated by sexual desire; (b) harassment framed in "sex-specific" derogatory terms evidencing general hostility to the presence of a particular gender in the workplace; or (c) harassment showing comparative evidence about treatment of persons of both sexes in a mixed-gender workplace.

Discriminatory Conduct At Issue in New Decision. The Boh Brothers case involved a claim of same sex hostile work environment discrimination in violation of Title VII. The claimant (Mr. Woods) worked on a five person bridge maintenance crew, supervised by Mr. Wolfe. The Court characterized the workplace as "undeniably vulgar," with regular use of foul language and locker room talk, primarily by Mr. Wolfe. Shortly after Mr. Woods' commencing employment with Boh Brothers, Mr. Wolfe began targeting him specifically with derogatory comments, characterizing him as being gay or feminine, using derogatory feminine words to describe his demeanor, and exposing his genitalia suggestively to Mr. Woods. Mr. Wolfe was also accused of approaching Mr. Woods from behind and "humping" him an average of 2-3 times per week. Mr. Wolfe explained that he did not find Mr. Woods to be "masculine enough" to work on his crew, calling him "princess," because Mr. Woods "seemed kind of gay." Mr. Wolfe expressed no such concerns about any other crew member.

Appellate Review. The appeal was first presented to a panel of three Fifth Circuit judges, who ruled in favor of Boh Brothers. One striking feature of the highlighted decision is the determination of ten of the sixteen judges on the Fifth Circuit that the case merited review by the whole Court. A second striking feature of the highlighted decision is its nuanced evaluation of the complained of conduct, and its concern over the shoddy, dismissive manner in which Boh Brothers addressed the situation after being informed by Mr. Woods of his concerns.

Unlawful Nature of Supervisor Behavior. Analyzing Mr. Wolfe's behavior, the Court noted that this case did not involve merely a case of vulgar speech in the workplace nor a "government-controlled" workplace speech code. Rather, the Court determined that the complained of conduct was harassing behavior directed specifically at Mr. Woods.

Eventually, Mr. Woods presented his complaints to the general superintendent of the company. The superintendent only nominally investigated the claim of sexual harassment, whereas he investigated much more thoroughly the companion claim by Mr. Woods that Mr. Wolfe was stealing company gas and using company equipment for personal use.

Deficient Investigation of the Claimant's Complaints. In ruling in favor of Mr. Woods, the Court rejected the claim made by Boh Brothers that it was entitled to avoid "vicarious liability" for Mr. Wolfe's conduct because it had "exercised reasonable care to prevent and promptly correct the supervisor's sexually harassing behavior." Acknowledging that the company had a broadly worded antidiscrimination policy, the Court nevertheless declined to uphold this defense because: the policy did not mention a prohibition against sexual harassment in particular; the procedures adopted by Boh Brothers to address claims of sexual harassment contained no specific instructions regarding how to assert or investigate harassment complaints, nor provided any guidance regarding how to investigate, document and resolve harassment complaints once reported; the actual investigation conducted by the company of Mr. Woods’ harassment complaint was a "cursory" 20-minute investigation; the result of the investigation was to send Mr. Woods home for three days without pay; and there was no proof of "corrective action" being taken towards Mr. Wolfe for his offending behavior.

Lessons to be Learned. Boh Brothers stands as an admonition against the "sanctity" of fostering or tolerating a "boys will be boys" environment in the workplace. The decision by the full Court of Appeals upholding a favorable result for Mr. Woods highlights its concern about the fostering of a same sex hostile work environment that violates Title VII, and about the casual overall (peculiarly unenlightened) attitude which the employer displayed in this case towards the HR function in general, and its legal obligations in particular.

While most employers adhere to the use of proper employment practices in the workplace, this decision emanates certain cautions to employers. It thus appears advisable for employers to ensure that they have in place meaningful policies prohibiting same sex harassment and, correspondingly, meaningful policies to monitor the behavior of supervisory personnel and encourage submission and adequate investigation of legitimate complaints about same-sex harassment.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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