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, 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.