EEOC Announces End to Boh Bros. Construction Co. Lawsuit

Author: Beth Zoller, XpertHR Legal Editor

March 10, 2014

The EEOC entered into a consent judgment with Boh Bros. Construction Co., in which the employer agreed to pay $125,000 to settle a same-sex harassment case that has bounced from the trial court to the 5th Circuit Court of Appeals and back.

In Boh Bros., the EEOC alleged that a supervisor had subjected a male subordinate to verbal abuse, had simulated sexual gestures and had exposed himself to the employee. In addition, the supervisor had teased the employee about bringing "wet wipes" to lunch because the supervisor thought that the employee failed to conform to gender stereotypes in the construction industry by being too feminine.

Although the employee complained to a manager, the manager determined at the conclusion of his investigation that, although the supervisor's conduct was unprofessional, it did not rise to the level of sexual harassment. A few months later, the employer terminated the employee. The EEOC subsequently filed suit against the employer on the employee's behalf, and a jury found that the employer had violated federal civil rights laws.

The employer appealed the jury's verdict to the 5th Circuit. A full panel of the 5th Circuit determined that the law and evidence supported the jury's finding that the employer had illegally engaged in sex stereotyping by harassing the employee because he was not manly enough to work in an iron yard and that this amounted to discrimination because of sex, in violation of Title VII. The majority held that harassment is because of sex if it is based on the failure to conform to gender stereotypes. This was true even though there was no evidence that the employee was either homosexual or effeminate.

The 5th Circuit had also approved an injunction by the district court:

• Requiring the employer's chief executive officer to send a letter to all employees advising them of the sexual harassment verdict, stating that the employer will not tolerate sexual harassment or retaliation, and warning that the employer will take appropriate disciplinary action against any manager, supervisor or employee who engages in sexual harassment or retaliation; and
• Ordering that the employer may not re-hire the harassing official during the life of the injunction.

The 5th Circuit then sent the case to the trial court for a determination of the amount of monetary damages due to the employee. At that stage of the litigation, the EEOC and the employer entered into the consent decree ending the lawsuit.