Tuesday, October 29, 2013

5th Circuit Holds "Locker Room Talk" in All-Male Workplace Constitutes Sexual Harassment

In an interesting decision out of the Court of Appeals for the Fifth Circuit, a 10-6 majority held that the crude sexual banter and ribbing of a heterosexual male worker by a heterosexual male supervisor could constitute sexual harassment under Title VII.  

The case, EEOC v. Boh Brothers Construction Company, involved an iron worker and structural welder, Kerry Woods, who had a supervisor, Chuck Wolfe, that allowed and cultivated what the 5th Circuit called, "an undeniably vulgar place" where "very foul language" and "locker room" talk was commonly used.  After Woods revealed that he used “Wet Ones” instead of toilet paper at the work site, he was consistently targeted by Wolfe for being “kind of gay” and “feminine,” and was called a “princess,” a “pu–y,” and a “fa–ot,” two to three times per week.

The facts get even worse:

Wolfe approached Woods from behind and simulated anal intercourse with him, exposed his penis to Woods while urinating, suggested that Woods perform fellatio on him, and made crude remarks about Woods’ daughter — all of which caused Woods to feel “embarrassed and humiliated.”  The evidence suggested, however, that while Wolfe thought that Woods was “not manly enough,” he did not in fact believe Woods to be a homosexual.  The evidence also suggested that Wolfe used similar language in speaking with other workers, and that vulgarity was commonplace there.

The Equal Employment Opportunity Commission (EEOC) filed suit on behalf of Woods against the employer, Boh Brothers, and a jury found that Boh Brothers was liable for damages arising from the sexual harassment of Woods by Wolfe. Boh Brothers appealed to the 5th Circuit.  

The Fifth Circuit held that a sexual harassment claim could be established by showing “evidence of sex-stereotyping” and thus “the EEOC may rely on evidence that Wolfe viewed Woods as insufficiently masculine to prove its Title VII claim.”  In this, the Court held, the focus is on the alleged harasser’s subjective perception of the victim.

In other words, the Court did not “require a plaintiff to prop up his employer’s subjective discriminatory animus by proving that it was rooted in some objective proof; here, for example, that Woods was not, in fact, ‘manly.’” Here, Wolfe’s subjective believe that Woods was not manly enough was sufficient to establish that he harassed woods “because of . . . sex,” as required under Title VII.
In so ruling, the Fifth Circuit explained that Title VII is not “a general civility code of the American workplace.”  However, Judge E. Grady Jolly, in his dissent, accused the majority of doing just that: “The vulgarities can cast turmoil on a strong stomach, but that does not mean that the laws of the United States have been violated, and it does not require Title VII and the EEOC to serve as federal enforcer of clean talk in a single sex workforce.”
The dissenting opinions took aim at the decision fearing it may spark an avalanche of litigation in response to vulgar language in the workplace, which they claimed is "ubiquitous in today’s culture and is everywhere else protected from government diktat by the First Amendment."


  1. That was a whole lot more than mere "locker room talk." It bordered on sexual assault. And it follows from earlier S.Ct. decisions.

  2. Judge E. Grady Jolly is crazy. Although the plaintiff is a man, it is clear the aggressor in calling him a pu**y and princess considered him a woman. If it had been a woman there would have been no question of the harassment. The actions dictate the intent. The intent was to humiliate a man on the basis of sanitation (Wet-ones). The bottom line is that this conduct goes beyond a few dirty words and ribald jokes. The judge speaks of civility policy. I don't see a civil person in that group.