Equal Employment Opportunity Commission v. Boh Bros. Construction Co.
2013 U.S. App. LEXIS 19867
| 5th Cir. | 2013Background
- Kerry Woods, an iron worker for Boh Brothers, worked on an all-male crew supervised by Chuck Wolfe; Woods alleged repeated name‑calling, simulated sexual acts (‘‘humping’’), and multiple instances of Wolfe exposing his genitals directed at Woods.
- Woods complained informally to a foreman and later to general superintendent Wayne Duckworth; Duckworth conducted a brief investigation, sent Woods home for a few days, did not document the harassment investigation or notify in‑house counsel, but commissioned a lengthy investigation into unrelated misconduct allegations against Wolfe.
- EEOC sued Boh Brothers on Woods’s behalf under Title VII for hostile‑work‑environment sexual harassment (and alleged retaliation); after a jury verdict for the EEOC on harassment (compensatory and punitive damages) and for Boh Brothers on retaliation, the district court reduced compensatory damages to comply with the statutory cap.
- A Fifth Circuit panel initially reversed for insufficient evidence; the en banc court reviewed whether same‑sex, gender‑stereotyping evidence can satisfy Title VII’s "because of sex" element and whether the harassment was severe or pervasive.
- The en banc majority: (1) held Price Waterhouse stereotyping evidence may be used in same‑sex harassment claims (Oncale categories are illustrative, not exclusive); (2) found sufficient evidence for a reasonable juror to conclude Woods was harassed because of sex and that the conduct was severe or pervasive; (3) rejected Boh Brothers’ Ellerth/Faragher affirmative defense on the record; (4) vacated the punitive‑damages award as unsupported (Kolstad standard) but remanded for the district court to reassess compensatory damages in light of the vacatur.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether gender‑stereotyping evidence can establish same‑sex harassment "because of sex" | EEOC: Price Waterhouse permits proof that plaintiff was targeted for failing to conform to sex stereotypes; that proves discrimination because of sex | Boh Bros.: Oncale’s illustrative routes are exclusive; gender‑stereotyping cannot be used for same‑sex claims | Majority: Price Waterhouse remains good law; Oncale’s routes are non‑exhaustive; stereotyping evidence may prove same‑sex discrimination |
| Whether evidence showed Wolfe harassed Woods "because of sex" | EEOC: name‑calling about masculinity, repeated simulated sexual acts, and genital exposure show Wolfe targeted Woods as insufficiently masculine | Boh Bros.: conduct amounted to vulgar locker‑room horseplay not motivated by sex stereotyping | Held: Sufficient for reasonable juror to infer Wolfe viewed Woods as insufficiently masculine and acted because of sex |
| Whether harassment was sufficiently severe or pervasive under Title VII | EEOC: frequent epithets, >60 simulated humping incidents, multiple exposures and threats — objectively hostile | Boh Bros.: conduct was part of rowdy, all‑male workplace and thus not severe/pervasive as a matter of law | Held: Jury instruction correct; record sufficient to support jury’s finding of severe or pervasive harassment |
| Whether employer established Ellerth/Faragher affirmative defense | EEOC: Boh Bros. lacked suitable written complaint procedures, training, and conducted only cursory investigation; employer failed prong one | Boh Bros.: had general EEO statement and available reporting channels; plaintiff unreasonably delayed reporting | Held: Jury reasonably found Boh Bros. failed to exercise reasonable care to prevent/correct harassment; defense rejected |
| Whether punitive damages were supported (Kolstad standard) | EEOC: conduct and employer’s lax response warrant punitive damages | Boh Bros.: supervisors lacked subjective awareness that same‑sex stereotyping harassment violated federal law; no malice or reckless indifference | Held: No evidence Boh Bros. perceived a risk of violating federal law re: same‑sex stereotyping; punitive award vacated as a matter of law |
| Scope and propriety of injunctive relief | EEOC: broad injunction necessary to prevent recurrence given policy and training deficiencies | Boh Bros.: injunction overbroad and burdensome | Held: Injunctive relief was appropriate and reasonably tailored; affirmed |
Key Cases Cited
- Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (gender‑stereotyping evidence can show discrimination "because of sex")
- Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) (same‑sex harassment actionable; illustrative evidentiary routes not necessarily exhaustive)
- Vance v. Ball State Univ., 570 U.S. 421 (2013) (definition of "supervisor" for employer vicarious liability)
- Burlington Indus. v. Ellerth, 524 U.S. 742 (1998) (employer affirmative defense elements for supervisor harassment)
- Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (same as Ellerth; employee‑reporting obligation context)
- Kolstad v. American Dental Association, 527 U.S. 526 (1999) (standard for punitive damages in Title VII cases: malice or reckless indifference and employer good‑faith defense)
- Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) (hostile‑work‑environment severity/pervasiveness standard)
- Farpella‑Crosby v. Horizon Health Care, 97 F.3d 803 (5th Cir. 1996) (example of frequent sex‑based comments supporting hostile‑environment verdict)
- Lauderdale v. Texas Dep't of Criminal Justice, 512 F.3d 157 (5th Cir. 2007) (elements of hostile‑work‑environment claim)