Federal Appeals Court Resists Categorizing “Sexual Stereotyping” Claim As Violation Of Title VII

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Under Title VII, an unlawful employment practice is established when an employee demonstrates that gender is a motivating factor for an adverse employment action.  Under that analysis, a number of federal appellate courts have determined that adverse treatment of an individual because he or she does not fit the stereotypical characteristics of his or her gender may be a violation of Title VII.  However, the 5th U.S. Circuit Court of Appeals recently side-stepped that trend and reversed a jury’s decision on the issue.  EEOC v. Boh Brothers Construction Co., LLC, 5th Circ., No. 11-30770, July 27, 2012.  In that case, the Court reversed a substantial jury verdict of actual and punitive damages in favor of Kerry Woods, a male construction worker, and directed dismissal of his claims.

Woods began working with Boh Brothers as an ironworker in November of 2005.  Beginning in early 2006, Woods was assigned to a maintenance crew for the Twin Spans Bridge between New Orleans and Slidell, Louisiana.  The crew superintendent, Chuck Wolfe, referred to Woods as “faggot” and princess,” approached him from behind with lewd actions simulating sexual conduct, and allegedly exposed himself to Woods on a number of occasions.  Although there was no evidence that either man was homosexual or attracted to other men, it is undisputed that Woods was “the primary and constant victim of Wolfe’s offensive abuse and harassment, much of it in the nature of sexual vulgarity.”  Woods complained to his crew foreman about Wolfe’s behavior and remarks, but no action was taken on the issue.

In November 2006, an inspection contractor notified Wolfe that Woods had requested to view maintenance crew members’ time sheets, which at the time was a terminable offense.  Wolfe notified his own supervisor, Duckworth, of that possible policy violation, also telling Duckworth that he “didn’t care for” Woods because Woods was “different” and “didn’t fit in” with the other crew members.  

Duckworth met with Wolfe and Woods, at which time Woods complained in detail about Wolfe’s harassment.  Woods was sent home for three days without pay.  After investigating Woods’ complaints, Duckworth determined that Wolfe’s behavior, although admittedly unprofessional, did not constitute sexual harassment.  Woods then was transferred to another crew, but ultimately was laid off for “lack of work.”  

Woods filed discrimination charges with the EEOC, claiming sexual harassment and retaliation.  In 2009, the EEOC brought an enforcement action in district court on Woods’ behalf on both claims.  After a three-day trial, a jury found in Woods’ favor on the harassment claim, but in favor of the company on the retaliation claim.  Woods was awarded $200,000 in compensatory damages and $250,000 in punitive damages.  When the lower court denied Boh Brothers’ motion for judgment as a matter of law, Boh Brothers appealed.  The Fifth Circuit reversed that denial, vacated the judgment in Woods’ favor, and remanded the matter for “entry of judgment dismissing the case.”

Of particular interest is the fact that the Fifth Circuit skirted the issue of whether gender stereotyping is a cognizable form of same-sex harassment under Title VII by finding that there wasn’t enough evidence in the record to prove that Woods was not stereotypically masculine.  According to the court, unless a plaintiff can prove that he does not conform to stereotypes, he cannot succeed on the theory that he was treated differently because of that nonconformance.  The issue of whether the Court took the jury’s observations of Woods’ demeanor and characteristics into account in reaching its verdict in his favor is not addressed in the Fifth Circuit’s opinion.

What led to this decision is the Fifth Circuit’s differentiation between gender stereotyping and same-sex harassment, and its unwillingness to conflate those two types of actions into a single method of proving Title VII violation.  The Court first cited to the Supreme Court’s 1998 decision in Oncale v. Sundowner Offshore Services Inc., in which the Supreme Court set forth the basis of same-sex behavior which violates Title VII, which typically includes homosexual proposals of sexual activity to a plaintiff or general hostility toward homosexuals in the workplace.  Woods’ claims did not fall within those categories since there was no evidence of homosexuality, and the Fifth Circuit was unwilling to extend Oncale to cover claims of general gender stereotyping.  It then analyzed Woods’ claims under the Supreme Court’s decision in Price Waterhouse v. Hopkins, a 1989 decision in which the Supreme Court found that an employer can be liable for adverse actions that are based on a belief that an employee does not conform to a society’s expectations for that employee’s gender.  Because of the dearth of evidence of Woods’ non-conformance with gender stereotype, and based on Wolfe’s testimony that “he did not view Woods as feminine,” the Fifth Circuit found this case in “sharp contrast” to Price Waterhouse, and declined to find gender stereotyping here.

The line between gender stereotyping and discrimination “because of sex” can be difficult to draw.  However, employers must recognize that an employer who takes an adverse action against an individual because he or she does not fit within sexual stereotypes may be engaging in sex discrimination if the individual can prove that the discrimination would not have occurred but for the individual’s sex/non-conformance to stereotype.  If a company’s disciplinary actions are meant to punish or belittle non-compliance with gender stereotypes, the actions may constitute a violation of Title VII’s “because of sex” provision.

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.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.