Hot Employment Topics For 2014- Part VII: Same-Sex Workplace Harassment-The Hazards of a "Boys Will Be Boys" Policy

by Jackson Walker

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This is the seventh and last of a seven-part series describing "Hot Employment Topics for 2014." Part VII focuses upon "Same-Sex Workplace Harassment."

The United States Court of Appeals for the Fifth Circuit recently demarcated the statutory boundaries constricting a workplace policy tolerating "boys will be boys" behavior. In Equal Employment Opportunity Commission v. Boh Brothers Construction Co. L.L.C., the Court determined that in a case of alleged "same sex workplace harassment," 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 vividly 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.

The case involved what the Court of Appeals characterized as an "undeniably vulgar" workplace, which featured regular use of foul language and locker room talk, primarily by the supervisor of the construction crew in question. Shortly after he began working for the company, the plaintiff was targeted specifically by the supervisor with derogatory comments, characterizing him as being gay or feminine, using derogatory feminine words to describe his demeanor, and exposing his genitalia suggestively to the employee. The supervisor also made crude "humping" gestures to the plaintiff two or three times per week, and exposed himself to the plaintiff on at least one occasion. The supervisor explained that he did not find the plaintiff to be "masculine enough" to work on his crew, calling him "princess," because plaintiff "seemed kind of gay." The supervisor expressed no such concerns about any other crew member, but despite the name-calling, stated he did not believe that the plaintiff was homosexual; the evidence also indicated that the plaintiff did not appear effeminate. Nevertheless, the jury found for the plaintiff and awarded him significant damages.

While a three-judge panel of the United States Court of Appeals for the Fifth Circuit rejected the plaintiff's claim in the initial appellate review, the case was re-heard by the full Court. It reinstated the judgment in favor of the plaintiff. The full Court held that a plaintiff may use evidence of sex stereotyping to prove a "sexually based" hostile work environment. It then turned its attention to whether the complained-of conduct was sufficiently severe or pervasive to establish a claim.

The Court held that it was. The opinion noted that this case did not involve merely vulgar speech in the workplace nor a "government-controlled" workplace speech code. Rather, the Court characterized the complained-of conduct as harassing behavior directed specifically at the plaintiff.

The Court next considered the company's affirmative defense that it had exercised reasonable care to prevent and/or promptly to correct the supervisor's harassing behavior. In holding for the plaintiff, the Court rejected the company's claim of reasonable care in investigating the allegations. It rebuffed the company's reliance upon its investigative procedures because they 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. In short, the Court found the company's policy distinctly lacking in substance.

The decision by the Fifth Circuit in Boh Brothers stands as an admonition against the "sanctity" of fostering or tolerating a "boys will be boys" environment in the workplace. The decision highlights the Court's 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 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 radiates 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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