*1 EQUAL EMPLOYMENT OPPOR COMMISSION,
TUNITY Appellee,
Plaintiff -
v. CONSTRUCTION
BOH BROTHERS
COMPANY, L.L.C., Defendant-
Appellant.
No. 11-30770. Appeals, States Court
United
Fifth Circuit
Sept. *5 (argued), Equal
Paul D. Ramshaw U.S. Commission, Opportunity Of- Employment Services, Counsel/Appellate fice of General DC, Juge, Washington, Gregory Thomas Equal Employment Opportunity Commis- Office, sion, New New Orleans District Orleans, Sacher, LA, Equal James P. U.S. Commission, Employment Opportunity Office, Houston, TX, for Houston District Equal Employment Opportunity Commis- Appellee. sion Plaintiff — Coats, Christy (argued), Walter W. P.C., Lee, Rose, Yale, Or- Ryman & New leans, LA, Credeur, crew, Attorney, Jacob C. Wolfe’s to almost-daily verbal and Rose, Lee, Coats, Yale, Ryman P.C., physical harassment because Woods did & Orleans, LA, New Erin Wedge Rebekka not conform to Wolfe’s view of how man Rose, Latuso, Coats, Yale, Lee, Ryman & should The jury act. found in favor of the P.C., Orleans, LA, for New Boh Brothers EEOC on its claim, hostile-environment L.L.C., Company, Construction Defen- awarding compensatory punitive dam- Appellant. ages. Boh Brothers appeals the district dant — court’s denial its for judgment motion III, Murphy (argued), J. Esq., Foster a matter of law and motion for new trial. Breazeale, Wilson, L.L.P., Saehse & Baton Drawing all reasonable inferences LA, Hamilton, Rouge, Leo Charles Breaz- light verdict, most favorable to the as we eale, Wilson, L.L.P., & Saehse Baton must, we in part, AFFIRM REVERSE LA, Olinde, Rouge, Yvonne R. Esq., part, and REMAND proceed- for further Breazeale, Wilson, L.L.P., Saehse & Baton ings opinion. consistent with this LA, Rouge, for Louisiana Associated Gen- Contractors, eral Incorporated, Amicus
Curiae. I. Jr., Kenneth Dale Upton, Legal Lambda Woods is iron worker and structural Fund, & Incorporated, Defense Education welder. Boh hired Brothers Woods on TX, Dallas, Legal Lambda Defense and 3, 2005, November work crews re- Fund, Education Amicus Curiae. pairing Spans the Twin bridges between
New Orleans and Slidell after Hurricane Katrina. In January company transferred Woods a bridge-mainte- *6 nance crew. Wolfe superin- was crew STEWART, Before Chief and Judge, tendent, employees with about five under KING, JOLLY, DAVIS, JONES, SMITH, supervision. his DeMOSS, DENNIS, CLEMENT, The undeniably vulgar worksite was an PRADO, OWEN, ELROD, SOUTHWICK, place. Wolfe and the crew used regularly HAYNES, GRAVES, HIGGINSON, and “very language” foul room and “locker Judges. Circuit members, talk.” According to other crew primary a Wolfe was offender: he was ELROD,
JENNIFER WALKER “rough” “mouthy” and with his co-workers STEWART, Judge, joined by Circuit Chief and often teased and “ribbed on” them. KING, DAVIS, DENNIS, Judge, and PRADO, SOUTHWICK, HAYNES, By April Woods had a become GRAVES, HIGGINSON, and Circuit specific frequent target and of Wolfe’s Judges: “pu— abuse. Wolfe referred to Woods as ot,”
This Title VII arises out of alleged y,” “princess,” case and to often “two “fa— Wolfe, day.” Chuck a three times two to three About superintendent of an per all-male crew on a times week—while Woods was bent operated by construction site Boh over perform Bros. to a task—Wolfe approached (“Boh Brothers”). Company Construction him from behind and anal inter- simulated trial, During three-day jury Equal course with him. felt Woods “embar- Employment Opportunity Commission rassed and humiliated” the name-call- (“EEOC”) presented ing evidence that Wolfe to began look over his shoulder Woods, subjected Kerry addition, an iron bending worker on before down. In Wolfe off of Boh Brothers transferred Woods ten penis to Woods about exposed his crew the Almo- bridge-maintenance to waving at sometimes urinating, while times yard, location for Boh naster the central smiling. Woods work, in No- after an incident Brothers Woods time, approached Wolfe One Brothers, According Boh vember car his locked napping while Woods approached inspector an with Vol- Woods Woods, According during break. entity that Services—an kert Construction zipping like his he was “looked Wolfe bridges site and Spans the Twin oversaw said, your door wouldn’t pants” and “[i]f time employees’ Boh Brothers’s approved locked, probably would my been d-ck have see the mainte- asked to records —and your mouth.” have been Boh Brothers’s nance crew’s time-sheets. from employee view- policy prohibited Wolfe, teasing his some of According time-sheets, ing co-workers’ use of Wet Ones from Woods’s originated attempt to do so was purported Woods’s paper, which viewed instead toilet Wolfe report- inspector terminable offense. In an gay” “kind of and “feminine.” Wolfe, in ed conduct to Wolfe. Woods’s EEOC, ex- interview with the Wolfe Duckworth, turn, Wayne gen- notified plained: superintendent for Boh Brothers’s eral table with a bunch of Mr. Woods sat adding that Heavy Highway Department, that he told us iron workers and he for” because was he “didn’t care Woods know, brought, you wipes feminine —not in.” “didn’t fit testi- “different” and or what- wipes feminine Wet Ones —but that, point, at that he was “done with” fied with him because didn’t ever work Woods. it, use paper. like didn’t like to toilet morning, The next Wolfe told Woods thing you’d want to It’s the kind of [not] meeting, At with Duckworth. meet rough iron say in front of bunch [of] Wolfe’s complained Woods in detail about all they They had there. workers addition, told harassment. Woods They it. said that’s picked on him about “probably Duckworth that Wolfe was these, bring that’s kind feminine gas shrimping stealing company Ones to work to girls. bring To Wet Woods, According to company time.” ass, your you damn sure don’t sit wipe *7 anything never mentioned Duckworth of of iron workers and tell front a bunch alleged attempt to see his about Woods’s your- keep it. You that to them about or indicated that co-workers’ time-sheets you inif fact what do. self that’s had committed other violation Woods policy. treat- of Boh Brothers’s At end complained Woods about Wolfe’s conversation, foreman, Duckworth indicated that Carpenter, to Tim “two the ment alleged into” the harass- said he would “look Specifically, or three times.” Woods pay home without spoke like to” ment. He sent Woods he “didn’t how [Wolfe] Duckworth, because, according he reprimand to Carpenter him and asked bridge. problems” Ac- “further between Woods urinating for on feared Wolfe Woods, Woods, believing that he had not to cording he elected com- Wolfe. fired, and asked him Carpenter because called plain about all of Wolfe’s behavior been put if he could a to intervene and “see afraid “to cause more of conflict.” he was tip I her”:—which stripper won’t made a lewd comment about because 1. Wolfe also hope your daughter cry. Woods’s better made Woods —"You up a daughter grow and become don't ever
451 later, days to work.” Two court Carpen- compensatory reduced the damages [Woods] him to report $50,000 ter called Woods told award to comply with the yard. work the Almonaster $300,000 statutory damages cap. 1981a(b)(3)(D). § U.S.C. Boh Brothers subsequently investigated Duckworth filed judgment renewed motion for as a although complaint, Woods’s he did not following entry matter law of judgment any aspect document of his investigation. trial, and a motion for new both of which spoke He with both and a crew Wolfe the court timely denied. Boh Brothers minutes ten foreman about each and appealed. behavior, though determined that Wolfe’s unprofessional, did not constitute sexual panel A court jury overturned the notify harassment. Duckworth did not verdict. According panel, to the evi company’s general about counsel Woods’s dence was insufficient as a matter of law did, however, allegations. He jury’s finding sustain the that Wolfe dis arrange thorough investigation against criminated Woods “because of ... claim that stole company Woods’s sex” violation Title VII. v. Boh EEOC gas company equipment and used for per- Co., L.L.C., Constr. 458, Bros. purposes. pri- sonal Boh Brothers hired a (5th Cir.2012). The subsequently EEOC issue, agency
vate detective to evaluate the sought and obtained en banc review. resulting in 84.75 hours of work and two reports.2 II. initially charge Woods filed an EEOC 2006, questionnaire shortly “[0]ur November standard of review with after his from Spans respect jury removal the Twin to a verdict especially def crew, Co., maintenance alleging had been erential.” SMI Owen v. Steel Inc. job and, later, days U.S.A., Inc., “fired” from that three 432, (5th Marsh 520 F.3d Cir.2008) hired work at different Boh Brothers (quoting Phy S. Reg’l Flowers v. 2007, In February location. Boh Brothers Servs., Inc., (5th sician 247 F.3d laid Woods off for lack of work. That Cir.2001)) (internal quotation marks omit March, Woods filed an EEOC charge ted). we Although review the denial aof discrimination, alleging sexual harassment judgment motion for as a matter of law de and, on the basis his November 2006 novo, apply legal the same standard crew, I’m, removal from the maintenance retali- Ready the district court. Baisden v. ation. Cir.2012), Prods., Inc., — denied, -, rt. U.S. brought EEOC this enforcement ce (2013) (citation 1585, 185 S.Ct. L.Ed.2d 578 in September action Woods’s behalf omitted). standard, litigant Under claiming sexual harassment re- judgment obtain cannot as a matter of law taliation under Title Following VII. *8 three-day trial, point “unless the facts and inferences ‘so jury the a returned verdict strongly and in overwhelmingly in of on the mov- favor Woods the harassment claim jurors in favor of Boh on ant’s favor that reasonable could not and Brothers the retali- ” claim. jury contrary (quot ation The awarded reach conclusion.’ Id. Woods 235). $201,000 Flowers, compensatory damages ing 247 F.3d at As the D.C. $250,000in punitive damages. The eloquently explained: district Circuit has receiving report, agency's pay. 2. After the Boh not reduce his temporarily Brothers demoted Wolfe but did 452 to the tamper Rights with the Title VII of Act of 1964. lightly Civil
We are
2000e-2(a)(l).
§
See 42
Title VII
those drawn to-
U.S.C.
judgment of
considered
employment practice
it “an
makes
unlawful
time
render a
point
at one
gether
employer
for an
...
to discriminate
representative of the
judgment
that is
against
respect
to his
any individual
the American
good common sense of
conditions,
terms,
privi
compensation,
goes
that few
people.
saying
It
without
of such indi
leges
employment,
of
because
as that of
institutions are as venerable
sex,
race, color, religion,
or nation
vidual’s
jury,
Founding
at the
by
trial
enshrined
of a
origin.”
al
Id. “The creation
hostile
by
Rights
in the Bill of
and hallowed
an
through
...
environment
harassment
work
English
of
and American
body
enormous
proscribed discrimination.”
is a form of
are
judges,
law that commands
who
—Univ.,
U.S. -,
Vance v. Ball State
all officials the least accountable
2434, 2455,
S.Ct.
co-worker. *9 III. omitted). (citations An em- Id. 2439 or ployee supervisor is a if “he she is appeal This involves the EEOC’s tangi- pursuant empowered by employer claim to take hostile-work-environment
453
employment
against
ble
actions
the vic-
VII
[T]itle
because was not discriminato-
(citation
Id.3
ry
tim.”
on the basis of sex.” Id.
omit-
ted). Or,
hand,
the other
“[o]n
same-sex
Where
harassment
claim
harassment that is indisputably discrimina-
conduct,
supervisor’s
out of a
“there
arises
tory might not
enough
be serious
to make
working
four
of a hostile
are
elements
pro
out either a quid
quo or hostile envi-
(1)
the employee
environment claim:
that
(citation omitted).
ronment claim.” Id.
(2)
class;
belongs
protected
to a
that the
subject
employee was
to unwelcome sexual
Applying
here,
inquiry
the most
(3)
harassment;
that the harassment was
critical
appeal
issues on
are whether the
characteristic];
on
protected
based
[a
presented
EEOC
sufficient evidence that
(4)
‘term,
that the harassment affected a
(1) Wolfe harassed Woods
...
“because of
condition, or privilege’
employment.”
(2)
required by
VII,
sex” as
Title
Dep’t
Lauderdale v. Tex.
Criminal Jus
Wolfe’s harassment was
or perva-
severe
(5th Cir.2007).
tice,
157,
512 F.3d
162-63
sive. We turn to the beeause-of-sex issue
term, condition,
To affect a
privilege
first.
employment,
harassing
conduct “must
sufficiently
pervasive
severe or
to alter
A.
employment
[the victim’s]
the conditions of
working
and create an abusive
environ
trial,
At
on gender-
EEOC relied
Aryain
ment.”
v. Wal-Mart Stores of
stereotyping evidence to prove that Woods
L.P.,
(5th Cir.2008)
Tex.,
473,
479
suffered discrimination on the basis of sex.
(alteration
original)
(quoting Lauder-
Specifically,
the EEOC asserted that
163).
dale, 512
objec
F.3d at
use an
We
Wolfe harassed Woods because
Woods
person”
tive “reasonable
standard to evalu
manly-enough
not a
man in
eyes.
Wolfe’s
Oncale,
severity
pervasiveness.
ate
(1)
On appeal,
argues
Boh Brothers
82,
Ultimately,
523 U.S.
whether the
conduct was sex dis
and,
rely on
second,
gender-stereotyping evidence
crimination
we evaluate
show
discrimination occurred “be
whether the conduct
meets
standard
of ...
pro
cause
sex”
accordance with Title
quid
quo
for a
hostile-work-environ
example,
Hopkins,
claim.
Price
ment
Id. “For
VII. See
Waterhouse v.
same-sex
or pervasive’
‘severe
U.S.
109 S.Ct.
her
courts,
ours,
235,
recognized
have
including
1775. ous
at
109 S.Ct.
partnership.
Id.
Title YII’s be
plaintiff
satisfy
that
a
can
signs ...
some
that
The
saw “clear
Court
of
requirement
with evidence
negatively
cause-of-sex
[the
reacted
partners
to conform to
plaintiffs perceived
a
a
failure
because she was
plaintiffs] personality
See, e.g.,
gender stereotypes.
her as
traditional
described
partner
One
woman.
Inc.,
U.S.A.,
14 F.3d
she
v. Chevron
‘macho’;
that
‘over- Davis
suggested
another
Cir.1994)
(5th
woman’;
1082,
(noting
a third
1085
that
being
compensated for
at
Price Waterhouse
‘a course
charm offensive comments
her
take
advised
”
omitted).
(citations
any
reasonably
interpreted
The
be
“cannot
Id.
school.’
[gender-
of
that
other than
reflection
suggested
thing
she
plaintiffs evaluators
bias”).4
talk more
femininely,
based]
should “walk more
femininely,
more
wear
femininely, dress
Waterhouse, a
years after Price
Nine
hair
make-up,
styled,
have her
wear
that
Supreme
held
unanimous
Court
(citation
quota-
and internal
jewelry.” Id.
necessarily
“nothing
Title VII
bars
omitted). The
declared:
tion marks
Court
discrimination
of ... sex’
claim of
‘because
beyond
day
are
when an em-
[W]e
plaintiff
defen-
merely because
employees by
could evaluate
as-
ployer
(or
person charged
acting
dant
insisting
they matched
suming or
that
defendant)
of
behalf of
are
the same
associated with their
stereotype
Oncale,
79,
sex.”
455
80,
at
showing
issue.
118
998.
In either
in
Id
S.Ct.
the context of a same-sex
case,
prove
must
that
dis-
plaintiff
the
(1)
harassment
a plaintiff may
claim:
show
crimination occurred
and
because
sex
that the harasser was homosexual and mo-
objec-
that the harasser’s behavior was so
(2)
desire;
tivated
plaintiff
tively offensive as to
the
alter
conditions
may show that the harassment was framed
80-81,
Id. at
employment.
his or
her
118 “in
sex-specific
such
derogatory
and
terms
legal
S.Ct.
With
998.
this well-settled
... as to make it clear that
the harasser
mind,
reject
standard in
argument
we
the
general
hostility
[was] motivated
to the
in Judge
that
opinion
Jones’s dissent
this
presence” of a particular gender
in the
every
would
require employers
“purge
(8)
workplace;
a plaintiff may
and
“offer
workplace
speech
gestures
that
and
comparative
direct
evidence about how the
might
way
in any
be viewed
as tokens of
alleged harasser
treated members of both
sex discrimination.” As
the Supreme
in a
Id. Boh
sexes
workplace.”
mixed-sex
“[wjhatever
emphasized,
Court has
eviden-
argues
Brothers
that
these three routes
follow,
tiary
plaintiff
the
route
chooses to
are the exclusive
paths
to success on a
always
prove
he or
she must
the
Title VII same-sex harassment claim. Our
conduct
merely tinged
issue was not
connotations,
uniformly
sister circuits
disagree.6 Every
offensive sexual
but ac-
...
tually
constituted
‘discriminaftion]
circuit to squarely
consider the issue has
”
(first
Id.
...
emphasis
because of
sex.’
Oncale
held that
categories
are illus-
added).5
trative,
exhaustive,
in nature. Consid-
ering that
the Court used
The Oncale court charted
example”
“for
three eviden-
tiary
paths
plaintiffs
make
and
evidentiary
“[w]hatever
route
may
judicially
5.
It
be difficult
to assess wheth
occurred
sex
because of
available”);
er and how harassment between two mem
Shepherd
Corp.,
v. Slater Steels
sex,
bers
same
998,
(7th
neither of
Cir.1999) (”[W]e
whom
168 F.3d
1009
homosexual, is
of”
"because
sex.
victim’s
nothing
Supreme
discern
in the
Court's [On-
cruelty
irrationality typify
But
harass
indicating
examples
cale decision
]
ment, prejudice, stereotyping
hostility
provided were meant to be exhaustive rather
see,
Oncale,
75,
generally,
e.g.,
523 U.S.
118
instructive.”).
than
998;
Waterhouse,
228,
S.Ct.
Price
490 U.S.
circuits,
In addition to the above-cited
1775,
Supreme
109 S.Ct.
and we echo the
acknowledged
note
the Sixth Circuit
"[cjommon sense,
Court’s confidence that
availability
evidentiary
of an
route not articu
appropriate sensitivity
and an
con
social
lated Oncale in 2006. See Vickers v. Fair
juries
text will enable courts and
to distin
Ctr.,
757,
(6th
Med.
F.3d
453
763-65
field
guish
simple teasing
roughhous
between
Cir.2006).
case,
subsequent
In a
the Sixth
sex,
ing among
members of
same
“guidance”
Circuit noted that Oncale offered
person
conduct which
reasonable
regarding
plaintiff
manner which a
can
plaintiff’s position
severely
would find
hostile
prove same-sex
v.
harassment. Wasek Arrow
Oncale,
82,
or abusive.”
jective view of the victim.11 A. I say didn’t he was ... gay. Said it here, Applying principles these gay seemed kind of .... *13 drawing and all reasonable inferences Q. you So wouldn’t say that he was verdict, the light most favorable to the gay, you say but his conduct was kind of enough there is to support evidence the gay?
jury’s
that
conclusion
Wolfe harassed
Yes,
A.
sir[.]
Specifically,
Woods because
sex.
the
Q.
that,
By saying
you
saying
were
Wolfe,
EEOC offered evidence that
feminine;
was
correct?
superintendent,
thought
crew
that Woods
A. Yes.
was not a
man
manly-enough
and taunted
Q. You meant he was
being manly;
tirelessly.
him
Wolfe called Woods sex-
is that correct?
ot,”
epithets
“pu y,”
based
like
and
“fa —
—
“princess,”
Yes,
per
often “two to three times”
A.
sir.
resulting injury
its
pervasiveness
alleged
discrimination or
less di-
based
Thus,
purposes
standing,
rect.
Amos
person
plain-
whether
"reasonable
in the
alleges
police
should be
as
viewed Trustee
position
severely
tiff's
find
would
[it]
hostile
him:
officers viewed
as a Native American.
Oncale,
or abusive.”
523 U.S. at
City’s alleged
discrimination
less
Moreover, objective
S.Ct. 998.
of a
evidence
upon
malevolent because it was based
conformance,
conform,
victim’s
or failure to
assumption.”).
erroneous
inform,
particular
to a
stereotype
but
dictate,
analysis
does not
our
of a harasser’s
Judge Jolly’s approach
would have
10.
—which
subjective view of the victim.
plaintiff’s
"objective”
court assess
sta
tus, here,
“unquestionably
that Woods was
12.These
insults lend
themselves
a reason
manly”
inconsistent with this circuit’s
—is
part
able
longstanding precedent.
jury
inference on
that
Capaci
See
v.
& Katz
Inc.,
Besthoff,
(5th
insufficiently
711 F.2d
Wolfe viewed
Cir.
Woods as
mascu
1983) (noting
Nichols,
apply
("At
that Title VII would
even
line.
at
See
its
employer
particular job
if an
essence,
advertised for
systematic
abuse directed at San
only in "male wanted” columns "out of a
chez reflected a belief that Sanchez did not
sincere
would
belief that females
inter
act
a man
as
should act.... Sanchez's male
job,
precisely
in the
such
ested
a belief is
supervisors
co-workers
one of his
re
stereotyped assumption
kind of
that Title VII
peatedly reminded Sanchez that he did not
eliminating”);
is aimed at
Pond v. Braniff
gender-based stereotypes,
conform to
re
their
Inc.,
Airways,
500 F.2d
Cir.
And,
ferring to
she'
him
and ‘her.’
("[I]f
1974)
employer
permits
way
vulgar name-calling
most
directed at Sanchez
stereotypical culturally-based concepts of the
was cast
female terms. We conclude that
people
perform
abilities of
certain tasks
gen
closely
verbal abuse
linked to
creep
thinking,
because of
sex to
their
into its
But,
der.”).
importantly,
pre
the evidence
employee’s
Title
then
VII will come to the
depend
sented in this case does not
on these
aid.”);
Black,
260;
see
also
below,
en
insults alone. As discussed
Enters.,
WC&M
Q. When homo, again that correct? like a conduct sounded being feminine for to Mr. Woods refers Yes, A. sir. Ones; correct? is that using Wet And, you princess, him Q. when called Yes, A. sir.... you thought to the fact that related talking you ... when were Q. And feminine; correct? he was investigator about the EEOC so, yes, guess I sir- A. Ones, initially you wipes or wet Wet you only iron worker Q. So the wipes; correct? feminine called them queer was Mr. Woods? ever called Yes, I I believe did. A. sir. thinking I’m so. A. you believed Q. And that’s because only iron Q. And was Mr. Woods something girls [are] that Wet Ones you fa—ot? called worker men should not? should use but I’mA. not sure. babies, yeah, that’s correct.
A. Or stereotypes you had of how Q. queer So you the word Q. Do understand *14 act, fit and Mr. Woods didn’t man should slang for homosexual? to be he because used stereotypes in to those Yes, just I if I do. don’t remember A. in talked about it and then Wet Ones else, may I anyone it for too. I used workers; hairy iron front a bunch have. correct? the word Q. you And understand that that, no, no. He agree I don’t with A. slang for homosexual? fa—ot just an iron worker like rest was Yes. A. his performed job and did He [t]hem. Mr. those Q. you And called Woods everyone just like else. was just We you thought was femi- because he words playing.... nine; correct? Q. your Let draw attention testi- me No, just I with playing A. sir. was mony you gave your in inter- that sworn I he queer him. did not think was ... at a view. sat table [“Mr. Woods did, Never do now. homosexual. a bunch of iron workers and told us know, feminine because brought, you Q. that You called him those words wipes using wipes his wet was you thought feminine but Wet wipes—not feminine; him to work with be- correct? Ones whatever it, like to he didn’t like didn’t use cause Yes, A. sir. thing It’s kind paper. [not] toilet you called And admit that Mr. Q. you say front bunch you’d want to [of] a pu y; correct? Woods — they had there. rough iron workers that Yes, A. sir. They all on him it. They picked about And, is that a Q. your experience, bring kind feminine to said that’s for a man slang that one would use word these, bring for girls. that’s To Wet manly? is not who ass, wipe your you Ones work A. Guess so. don’t in front of a bunch damn sure sit it. iron and tell them about workers by Mr. Q. allegations all the Woods So yourself keep You if in fact that’s you called him that the names that about you do.”] what Was truthful testi- feminine because he being to his related mony? Ones, allegations those are used Wet true; Yes, correct? all A. sir. (sometimes
A. Yes. smiling while waving) times, ten about and that suggested Wolfe name-calling, In addition this Wolfe put that he would his penis in Woods’s mocked Woods with several other sexual- mouth.13 example, ized acts. For Woods testified approach that Wolfe would him from be- Viewing whole, the record as a jury “hump” him two hind to three times could view Wolfe’s behavior an attempt (which per week equates denigrate to more than 60 to Woods because —at least sex), instances of simulated anal that Wolfe’s view —Woods fell outside genitals exposed manly-man Thus, Woods Wolfe’s stereotype.14 we evidence, Considering record, Having carefully this this case is reviewed the we con- suggests Judge not—as Jones's dissent clude that Dr. testimony Gold’s limited —about vulgar speech workplace, in the nor does it well within the bounds of admissible evi- impose government-compelled workplace Accordingly, dence. discern manifest Indeed, speech appears code. it that both error or abuse of discretion in the district Judge Jolly’s Judge dissent Jones’s dis- rulings. court's operate they sent from a different record: Despite our deferential standard of review evidence, ignore either or construe it and the district court's careful limitation of against jury in favor of—the verdict. —not testimony, Judge the Dr. Gold's dis Jones’s beyond The evidence here extends far isolated jury sent would reverse the verdict on the According- horseplay. insults and occasional testimony basis that Dr. Gold's have been ly, jury’s we must defer to the determination First, unhelpful confusing jurors. to the rose to level of sexual harassment. it cites Federal Rule of Evidence which provides expert testimony “help must presented testimony by 14. The EEOC Dr. Liza *15 trier of fact understand the evidence toor professor, Gold—a medical-school board-cer a determine fact in issue.” Fed.R.Evid. psychiatrist, tified a on and author of treatise note, 702(a). however, helpfulness We that the regarding sexual the nature harassment — "principally threshold low: it is is ... a mat psychological same-sex harassment from a Expert testimony ter relevance. which perspective. sought Boh Brothers to exclude does not relate to issue in the case is testimony pre-trial Dr. Gold’s in a Daubert relevant, ergo, non-helpful.” and v. Roman motion, granted which the district court Inc., 686, (5th Mfg., W. 691 F.3d 694 Cir. part. Specifically, the district court held that 2012) Pharm., (citing Daubert v. Dow Merrell testily regarding Dr. Gold could sexual Inc., 591, 579, 2786, 509 U.S. 113 S.Ct. 125 psychological per harassment studies from a (1993)); L.Ed.2d 469 see United States Po v. spective any opinions could but not offer re sado, 428, (5th Here, 1995). 57 F.3d Cir. garding specific facts of the case. Boh agree testimony Dr. cannot Gold's that, despite Brothers contends this limita regarding the nature same-sex harassment tion, testimony Dr. Gold's served as "a means unhelpful only was so as to have been not jury to instruct the on the EEOC's view of inadmissible, but also reversible error. how the law of same-sex harassment should Second, Judge Jones's dissent asserts result, interpreted.” be Boh As a Brothers testimony may Dr. Gold's have conflated the moved for a new trial. The district court "sociological” legal perspective and the issue, carefully ultimately considered the testimony sexual harassment. But Dr. Gold’s denied the motion. "We will reverse the trial distinguished specifically repeatedly be- only court’s of a denial motion for new trial two, emphasizing tween the that "harassment showing a when there is clear an abuse eyes social scientist's ... not con- Stores, Inc., Carr discretion.” v. Wal-Mart 667, legal stitute sexual harassment ... is (5th Cir.2002); [and] see Wello L.L.P., legal concept Accenture, 867, not limited to the of sexual gix, Inc. v. (5th Cir.2013) (citation testimony harassment.” Even if Dr. Gold's quotation issue, omitted) ("In bearing rulings had some on the marks ultimate on the admissibil ity expert opinion evidence Federal Rules of Evidence allow for such tes- the trial court that, rulings timony. (indicating has broad discretion and its be See Fed.R.Evid. 704 must erroneous.”). manifestly regarding expert testimony, opinion sustained unless “an is v. See Alaniz necessarily fact-specific. juror could no reasonable say that cannot Zamora-Quezada, 591 F.3d suffered harass- found that Woods have Cir.2009). Having reached of his sex. because ment conclusion, to the second criti- we turn this Here, jury was well-instructed al- whether the question appeal: cal on governing this standard: on sufficiently per- or severe abuse was leged sexual liable for For Defendant be liability. Title VII support
vasive harassment, suffi- conduct must be pervasive to alter the ciently severe B. employ- of Plaintiffs terms or conditions that, even if Wolfe Brothers asserts Boh and create hostile or abusive ment sex, the dis- because of harassed Woods To determine work environment. granted Rule have its trict court should rises to whether the conduct in case 50(b) Wolfe’s harassment motion because that alters the terms or condi- level a matter of pervasive was not severe you employment, tions of Plaintiffs law. circumstances, all should consider conduct; frequency of the including: the ex Supreme Court has As severity; physically its whether civility general not “a plained, Title VII is humiliating, threatening or or mere workplace.” On for the American code utterance;- it un- and whether offensive Thus, cale, 118 S.Ct. U.S. reasonably with Plaintiffs interferes alleged harassment we view require- There is no performance. work sense, an sen appropriate “[c]ommon psychologically that the conduct be ment sitivity to to determine social context” injurious. whether it constitutes “conduct which must Although harassment be plaintiffs position sexual person
reasonable sex, it need not motivated hostile or abusive.”15 based severely would find desire. inquiry 998. This Sexual Id. 118 S.Ct. gatek (noting judge objectionable just that "the trial serves as it embraces because issue”). Moreover, reliability eeper and relevance the district to ensure the ultimate *16 added)); testimony testimony” (emphasis and present expert for Gold’s of Ga Dr. court — Plano, (5th rejected pre City jurors- and F.3d closest to the briel v. of —heard ("We Cir.2000) cisely Judge judgments improp dissent position the Jones’s reverse for the evidentiary rulings only court instructed the articulates. district er where chal your duty I
jurors: ruling right to the law as lenged "It is follow a of a affects substantial “you required to give you” it to and are not proving party. The burden substantial accept opinion up you expert's] ... it’s to party asserting [an prejudice lies error.” deny reply upon (internal decide whether to it.” In to quotation marks citations omit trial, ing ted)). Boh Brothers’s motion for new ap concluded: "It’s even district court plaintiff recover unless the justice 15. While a cannot miscarriage to proaching a allow her, actually offended him or examples to conduct expert give to definitions person application standard of a reasonable highlight examples, never did she those affirming damage prevents us from awards to particular [Boh to case Broth refer this until plaintiffs compensate overly-sensitive for hurt her [it] examination when asked ers’s] cross ("To Considering Shepherd, feelings. See at particular areas.” about those actionable, thorough challenged conduct must be be the district court’s consideration offensive, meaning that a rea- high objectively testimony and standard both Dr. Gold's person it hostile and abu- applies appellate for would find review of motions sonable offensive, sive, trial, meaning subjectively step we decline to into the district new (emphasis Mgmt. perceived it to be so.” gatekeeping re the victim court’s shoes. In MBS Cir.2012) (citation omitted)). Servs., Inc., added) 690 F.3d may extremely Q. your include insensitive con- In opinion, did Mr. Wolfe treat sex/gender. Simple duct because the other members of the maintenance comments, teasing, sporadic offhand use way you? crew the same he treated language, gender- of offensive occasional A. No. (un- jokes, related and isolated incidents Q. What was the difference? serious) extremely will generally less A. He treated them —he treated them discriminatory amount to changes you’re more like supposed to treat of employment. terms and conditions grown man. pick He didn’t didn’t —he Discriminatory intimidation, ridicule, them he harass like harassed me all the advances, requests for sexual fa- time. vors, physical or other verbal or conduct Q. you Did ever see Mr. Wolfe show of a sexual nature in the workplace somebody penis? else his sufficiently extreme alter A. No. employment. terms and conditions of Q. you Did ever hear say Mr. Wolfe instruction, Hearing jury this conclud- anything about putting penis ed that Wolfe’s harassment Woods somebody’s to somebody mouth else? sufficiently or pervasive satisfy severe A. No. governing enough standard. There is Wolfe himself conceded that he only called evidence to support record Woods “queer”; he did not recall whether
jury’s conclusion. anyone ot,” he called else name he “fa— specifically Woods testified that was used regarding on Woods a consistent ba unique target and constant of Wolfe’s This, sis. alongside all of the evidence example, abuse.16 For Woods testified on 111(A) above in discussed Section re —the direct examination: peated humping, sex, the reference to oral juror etc.—is sufficient for a reasonable Q. your experience, is it common on conclude Wolfe’s harassment was suf a construction site this type be- pervasive ficiently severe or alter you’ve place? havior described take employment.17 conditions of Woods’s
A. No.
hurled
epithets
raw sex-based
Q.
any supervisor
Has
ever treated
uniquely
two-to-three
Woods
times
you
job you’ve
like
other
day,
every day,
almost
for months on end.
held?
upheld
We
jury
have
verdict
analo
See,
gous
e.g.,
facts.
Farpella-Crosby v.
A. No.
Care,
Horizon Health
Q. Has anybody
you
ever treated
like
*17
(5th Cir.1996) (plaintiff presented suffi
any job you’ve
this
held?
jury
cient evidence from which a
could find
A. No.
pervasive
severe or
harassment where
reason,
simply
contradictory
16. For this
do
17.
facts
Boh Brothers offered some
support
Judge
the assertion made in both
at
evidence
trial. But we
draw all rea
must
Jolly's
Judge
dissent and
Jones’s dissent that
light
sonable inferences in the
most favorable
every man on the Boh
work
Brothers
site
Petrochems.,
to the verdict. Westlake
688
against
could establish Title VII claim
Weighing
credibility
F.3d at 239.
of the
company.
ig-
To reach that conclusion is to
testimony
various witnesses and their
is a task
evidence,
nore the
as considered and found
Roman,
jury,
for the
not this court.
691 F.3d
by
jury,
specifically
that Wolfe
and consis-
692; Ramos-Cardenas,
at
F.3d
605.
524
at
tently directed his abuse at Woods.
462
(1998);
2257,
offensive,
Far
plaintiff was
Raton,
775,
agher City
v.
Boca
524 U.S.
per
to three times
comments two
based
Enters.,
2275,
807,
A. satisfy employer An can argues Boh that it estab Brothers Ellerth/Faragher defense Ellerth/Faragher prong affirmative de first lished poli institutional Burlington implementing as a matter of law. See suitable fense Ellerth, programs regarding v. 524 U.S. 118 cies educational Indus. cannot, We and should Judge Jolly’s purport- Wolfe’s harassment. dissent criticizes our not, inject ed failure to account for the fact that these own view the evidence our *18 Rather, actions occurred on an all-male construction site, stage the we must defer case. customarily which he is a vul- contends jury juror no reasonable to the verdict unless gar setting. and crude But the well-instruct- harassment was could conclude Wolfe's just jury capable as we are of ed pervasive. or severe surrounding evaluating the social context
463
See,
Lauderdale,
e.g.,
See,
Walker,
sexual harassment.
defense.19
e.g.,
214
F.3d
164; Wyatt
Plywood
F.3d at
v.
512
Hunt
627, abrogated
grounds
on other
by Bur-
(5th Cir.2002).
Co.,
405,
297 F.3d
413
As
67,
(“It
lington,
had been fired.26 Duckworth never in-
Brothers,
1,500
company
23. Boh
about
and offered
on
recommendations
how the
employees,
depart-
had no
problem
human-resources
might
investiga
be solved. After the
Lipiani,
general
company's
ment.
coun-
completed
tive
report,
team
its
Pantex Man
officer,
designated
sel and
EEO
conducted the
agement
program
shut down the W55
and
training.
five-minute sexual harassment
At
required
complete
entire
forty
staff to
trial, Lipiani downplayed
knowledge
his
training
hours of
in effective human interac
asked,
sexual
law.
“[s]o
When
addition,
compa
tion and teamwork.
you
company’s top
expert
are the
in-house
ny
line-by-line group-review
conducted
harassment,
about sexual
correct?” he re-
program's safety procedures
in order to
sponded,
expert.”
“I
don't know if I’m
among employees.
ease tensions
After the
restarted,
program
W55
was
Pantex ordered a
noting
24.
It is worth
three
Oncale
follow-up investigation into the hostilities and
evidentiary
have
routes—two of which
noth-
significant
found that hostilities had reduced
ing
recognized
to do with
desire—were
ly. Finally,
Management
Pantex
ordered a
eight years
about
before the events in the
analysis
performed,
root-causes
which re
Oncale,
pass.
instant
came to
matter
See
publication
guidelines
sulted
80-81,
in the
of written
U.S. at
Finally, Boh Brothers least pro- policies for educational punish failed to Wolfe stitutional harassment, regarding sexual it grams testified that he never of Woods. Wolfe liability. a rea- have Because “write-up” his treatment avoided received eventually juror have that it although sonable could concluded And of Woods. not, demotion, jury’s rejection uphold never said did we Duckworth suffered Ellerth/Faragher affirma- had to Boh Brothers’s that the demotion do with Wolfe’s Rather, the conver- tive defense.28 treatment Woods. Ellerth/Faragher purpose While affirmative de- requirement serves VII's
27. This
Title
protection
meaningful
encouraging "employees
report harass
fense offers
well-
preventative
per
intentioned defendants who take
ing
it becomes severe or
conduct before
Ellerth,
measures
address harass-
U.S.
118 S.Ct.
and corrective
vasive.”
2257;
only
workplace
not the
Shield
ment
in the
see Baldwin v. Blue Cross/Blue
—it
Ala.,
Cir.2007)
(11th
facing
safety
Title VII
valve for defendants
480 F.3d
("The
Regardless
genius
Faragher-Ellerth plan is
claims.
existence
an
requires
complaint,
corresponding
places on
internal
Title VII itself
duties it
timely
designed
employee
EEOC claim in
employers
employees
to file an
are
plaintiff
example, a
specific
For
stop
manner.
sexual harassment before it reaches
amounting
complaint
with the EEOC within
pervasive stage
to dis
must file
severe
(or
VIL”).
alleged discriminatory act
days
violation of Title
crimination in
B.
or reckless indifference.” Hardin v. Cat
Inc.,
erpillar,
Cir.
Having decided that
the evi
2000).29 Moreover,
even if particular
supports
jury’s liability
dence
finding,
agents acted with malice or reckless indif
turn
supports
next
to whether
ference, an employer may avoid vicarious
jury’s punitive
award. A
damages
Title
punitive damages liability if it can show
plaintiff may
punitive
VII
recover
damages
it made good-faith
comply
efforts to
upon proof that the defendant acted “with
Kolstad,
with Title VII.30
below
C.
district court
some
expressed
hesitation
regarding
jury’s
compensatory-dam
As Boh Brothers
recognizes,
record,
ages
injunctive
award. On
it is
unclear
relief mandatory
in the wake
Indeed,
a(b)(3)(D)
Specifically,
§
42 U.S.C.
emphasized
we have
that a "cross-
*24
caps
compensatory
appeal
the sum of "the amount of
purpose
filed
advancing
for the sole
of
damages awarded under this section for fu-
arguments
support
additional
in
judg
of a
losses,
pecuniary
pain,
ture
emotional
suffer-
unnecessary,
ment is worse than
because it
inconvenience,
ing,
anguish,
schedule,
mental
loss of
disrupts
briefing
the
increases the
life,
enjoyment
other nonpecuniary
of
and
(and
briefs,
usually
length)
number
the
of
and
punitive
losses” and the
damages
"amount
(citation
tends to confuse the
Id.
issues.”
and
$300,000
awarded under
this section”
for
omitted).
quotation
internal
marks
companies
employees
with “more than 500
in
Here,
judgment
the district court’s
awarded
each of 20 or more calendar weeks in the
the EEOC all of the relief allowable under the
preceding
year.”
current or
calendar
statute; accordingly,
grounds
it had no
to
appeal the manner which the court reached
in
disputed
Boh
the
34.
Brothers
EEOC’s inter
$300,000
See,
figure.
e.g.,
the
Lindheimer v.
pretation
post-trial
of Abner at the
conference.
Co.,
151, 176,
Ill. Bell Tel.
U.S.
54 S.Ct.
judgment
After the district court issued its
in
658,
(1934) (dismissing appeal
Serv.
E.
Circuit
GRADY
JONES, SMITH,
& Fit-
v. Stockkam Valves
(quoting
joined by
James
dissenting,
(5th Cir.1977)
Co.,
CLEMENT,
OWEN,
F.2d
tings
DeMOSS,
and
Bros., Inc.,
Rogers
citing
v.
EEOC
Judges.
Circuit
(5th Cir.1972)).
re-We
966-67
acknowledge that the facts
me first
Let
for
injunction
abuse
scope
view
case,
in
which occurred
language
Id. at 338.
of discretion.
in an
workforce on an ironworker
all-male
Here,
site,
court
the district
held
not for
ears.
construction
are
tender
demonstrate, by
strong
failed
Boh Brothers
The
cast turmoil in a
vulgarities can
evidence,
convincing
stomach,
that future
clear and
not mean that
but that does
reasonably
Title VII
not
violations of
were
laws
have been violat-
United States
likely
Considering
ed,
require
to occur.
evidence
and it does not
Title VII
IV(A) above,
III and
discussed
Sections
to serve as federal enforcer of
EEOC
Although
Brothers com
agree.
Boh
in a single
clean talk
sex workforce.
broad, it
injunction is too
plains that the
“may
majority notes that
EEOC
articulate how. That
specifically
does
rely
evidence that Wolfe viewed
Woods
is,
explain
does
Boh Brothers
which
Ti-
insufficiently
prove
as
masculine
its
injunction
are
particular provisions
true,
tle VII claim.” That
but
unnecessary
prevent
fu
excessive and
majority’s reasoning
fatal vacuum the
Moreover,
district
ture violations.
EEOC,
fact, produced
no evi-
noted, Boh Brothers offered “no
court
was not
dence that Wolfe believed Woods
testimony
support
sworn
its claims”
“manly
regard
man.” This lack of
injunction
overly
was unreasonable
very
requirement
foundational
Thus,
record,
on this
Boh
burdensome.
alleged
reason for
sexual discrimina-
some
met
Brothers has not
burden
show
its
*25
alleged
tion
this
same-
presented
be
allows
its
that the district court abused
discretion
stereotyping
sex
Title
case
untether
VII
scope
injunction.
the
respect
to the
of
mooring in sexual discrim-
from its current
injunction
reasonably
is
tailored
application
Its
now
from
ination.
veers
in
sex
address deficiencies Boh Brothers’s
against
the
of
action
actual
realm
valid
and train
policies,
ual harassment
inform
world,
in
to a
sexual harassment
new
law, and
employees regarding the relevant
only
Title
not
prevents
which
VII
similar
recurring.
conduct from
prevent
harassment,
myriad
but also
other unde-
Accordingly, we affirm the issuance and
regardless
sirable
of whether
conduct—
injunction.
content of the
conduct,
fact,
that
in
sexu-
even resembles
Accordingly,
respect-
I
al discrimination.
V.
fully dissent.
a jury
will
verdict on suf-
We
overturn
ficiency grounds only
rare circum-
in the
I.
contrary facts and infer-
that the
stance
made
Court has
strong
Supreme
are
that a reasonable While
ences
so
sexual harassment
not reach the same conclu-
clear that
same-sex
person could
VII, it
cognizable
are
under Title
principle
sion.
this
claims
Applying
bedrock
here,
acknowledged
proving
in
in has further
part,
AFFIRM
VACATE
cum
demanding
plaintiffs
such
more
scribed
in
claims is
same-sex sexual dis-
opposite-
proving
Supreme
bersome than
traditional
crimination eases
Court in
claims. See On
is
simply
sex sexual harassment
Oncale—which
to assert the
Inc.,
Servs.,
cale v.
basis for the
Sundowner
inference
harassment
Offshore
75, 80-81,
sex,
upon
prove
523 U.S.
118 S.Ct.
based
but to further
(1998). Thus,
in
truth
L.Ed.2d
Oncale
assertion. The Oncale Court
recognized
specifically
Court
that there must
some
held
same chain of
“[t]he
infer-
an al
inferring
identifiable basis
ence”
in
present
male-female sexual
leged
i.e.,
is intending
harasser
to discrimi harassment
assumption
claims —
against
nate
a victim on the
of his
“proposals
basis
that certain
would not have
or her sex in same-sex discrimination
been made to someone of the same sex”—
instance,
cases.
Id. For
ob
is
Court
available
same-sex sexual harassment
only
served that same-sex harassment claims
if an
step
cases
additional
is taken to
could be
when there
evi
viable
is credible
illuminate the basis of
inference.
Id.
homosexual,
dence a
is
or when
harasser
118 S.Ct.
opposite
998. Unlike
sex
claims, therefore,
it has
made clear “the harasser
is
been
Title
VII
same-sex
by general hostility
pres
motivated
to the
plaintiff
suits a
must elucidate
prove
ence of
premise
[members
his or her same
sex]
his assertion that
in the
or when
is “di
workplace,”
there
sex—it
because
is not
comparative
rect
evidence about how the
automatically.
assumed
alleged
harasser treated members
both
case,
proffered
this
the EEOC’s
workplace.”
sexes in a
Id. at
mixed-sex
premise is that
subjectively
Wolfe
believed
80,
But
regardless whether there are oth-
Woods was “an iron worker
determination,
er
making
just
methods for
like the rest of
And Woods
[t]hem.”
proffered
inferring
EEOC
no basis for
explanation
himself offered no other
as to
discriminatory
upon
why
intent based
Woods’s
sexually
he believed Wolfe was
ha-
Rather,
him,
subjective
objective.
rassing
opposed
simply taunting
sex—
from
quickly
asserting
every
moves
that other
him as
did
iron
other
worker
evidentiary
Indeed,
are
conclu-
paths
job
available to a
all-male
site.
Woods
*26
that,
sion
targeted
because Wolfe
certain
that
never stated
he felt
called him
Wolfe
Woods,
words
and acts
Wolfe’s mal names
with him
crudely
and behaved
be-
sexually
against
intent
discriminate
cause Wolfe believed Woods did not con-
Thus,
gender
Woods
proved.
reasoning
This line of
form to
even the
norms.1
completely
pre-
plaintiff
alleged
abdicates
the
did not
burden
contend his
haras-
Wolfe,
you’re
1.
he
supposed
Woods testified
felt harassed
like
them more
to treat a
explanation
why
grown
sug-
but never
an
offered
as to
man.” USCA5 at 1746. But this
only
gests
felt this was
At one
sexual discrimination.
that Wolfe’s conduct was itself
point during
testimony,
lawyer
adult-to-juvenile
his
Woods's
conduct. Nowhere in his
way
testimony
asked him in what
he felt
treated
did
felt
Wolfe
Woods state he Wolfe ha-
differently
thought
him
than Wolfe treated others on
rassed
because
he did
him
Wolfe
not
site,
"manly.”
and
answer was
treated
Woods's
that "he
act
because of sex to the realities
he did not act
crimination
him because
ser harassed
To
workplace.
reach
other
the
“manly.”
supervisor
to say
conclusion is
that when a
evidence,
Moreover,
simply no
there is
referring
unquestionably
in
to an
persists
Woods, Wolfe,
any of the
from
or
garnered
sissy,
as
laws of the
manly man
a
the
testified, that
failed
other men who
Woods
broken, requiring
have been
United States
“male
objectively to conform traditional
the full force of the United States execu-
majority notes that
gender norms.” The
upon
judiciary
tive and
to descend
some
plaintiff
up
require
prop
not
“[w]e do
small business and extract hundreds
subjective discriminatory
employer’s
damages
in
and
thousands
dollars
fees
that
in
by proving
it was rooted
animus
simply
from its till. Such
result
In
cases this
objective truth.”
other
some
VII,
only
Title
which
violated
odds with
When, however,
may
true.
assertion
be
upon
of discrimination based
the
cases
discriminatory animus of the
subjective
the
victim’s sex.2
objective
employer
question,
is itself
majority
may
necessary
isolates from its context
evidence
be
to demonstrate
Wolfe,
language
an
conduct of
presence
absence of such
intent.
and
See,
Div.,
subjective
it
Support
upon
reflecting
v. Income
seizes
as
e.g., Medina
Mexico,
New
intent
to discriminate on the basis of
Cir.2005)
sex,
harassing
saying
no sexual harassment Woods’
out-
(finding
conduct, “lend
gender
stereotyping
of-context words and
them-
upon
based
when
...
to a
inference on the
no evidence
selves
reasonable
[wa]s
[the
“there
part
viewed
jury
did
dress or behave like a
Woods
plaintiff]
woman”).
That
stereotypical
pos
insufficiently
If a victim
as
masculine.”
is to
harassment,
characteristics,
say,
majority
sesses no
exhibited or
relies
unexhibited,
itself,
with
in and of
a substitute for actual
gen
nonconformance
stereotypes,
reflecting
subjective
der
then
intent of
appear
there would
evidence
alleged
engage
no basis
to Wolfe to
discrimination
be
harasser
sex
subjective
against
intent
possess
completely ignoring
to discriminate
Woods—
against that victim
all male iron
because
nonconfor-
worker environment where
this,
The majority
engages
mance. And in cases such as
where
occurred.
thus
in a
proper legal analysis
does
consider
distraction from the
alleged harasser
unmanly
by treating
victim be
the victim
case as if it were
even
— and
testify
alleged
does not
otherwise—and
harassment between male
female
further
with the when the
of sex
harasser
treats
victim
inference
discrimination
disrespect
presumed by
which he
same or similar
words
conduct.3
cases,
coworkers,
are
par-
treats his other
left
same-sex sexual harassment
ticularly in
anything tethering
without
a claim of dis-
an all-male workforce where
Thus,
reiterate,
abuse,
objective
...
the other verbal
reference to
bitch' —and
simply to
gesture
facts of this case is relevant
show
that [the
the obscene
di
defendant]
jury
context,
there was
basis
which a
from
plaintiff] was, in
rected toward [the
—
could have drawn a conclusion of intentional
gender-related
Galloway
not a sex-
term.”
*27
upon
based
same-sex stereo-
discrimination
Operations,
v. General
Serv. Parts
Motors
typing.
(7th Cir.1996), abrogated in
part
Passenger
grounds,
other
Nat’l R.R.
on
cases,
opposite-sex
assumption
3. Even in
Morgan,
Corp. v.
122 S.Ct.
U.S.
always
immensely im-
is not
valid—context is
(2002).
It is
inappropriate
this case
assume that
use of words
Wolfe’s
like
Here, quite
contrary.
to the
The record
necessarily
and
“pu y”
“fa—ot”
connoted
—
shows,
out,
pointed
we have
that Wolfe
discriminate,
desire to sexually
because
was vulgar and
such
used
names with all
all
evidence indicates Wolfe used
site,
the men on
points
and
EEOC
only
and
these
similar words towards the other
to Woods’s use of
Ones as
Wet
the basis
fact,
on
In
daily
men
site on
basis.
for presuming he
not act
“did
as a man
replete
testimony
record is
with
that Wolfe
should act.”
patent
weakness of the
site,
vulgar
everyone
aiming
with
EEOC’s attempt to use this singular exam-
derogatory terms
with
innuendoes
ple of
premise
Woods’s as the
for a lawsuit
them,
them,
at each of
himself
exposing
alleging
violations of
laws of the Unit-
pretending
“hump”
several men on
ed
support
States —and as the sole
for a
And while
was unquestionably
site.
several hundred thousand dollar verdict—
site,
the crudest
ironworker on the
fact
underscored
that no other
gener-
evidence indicates all the men were
circuit has found a Title VII violation on
ally
vulgar
they
more
than
here
would
piddling
just noted,
such
evidence. As
society,
have been in a mixed-sex
and that
Ninth Circuit reached a conclusion that
sexually-charged
such
words were bandied
same-sex sexual harassment on the basis
regularly.
has
about
The EEOC
identified
of gender
stereotypes occurred
the face
no basis for
presuming
Wolfe directed
of far
compelling
more
facts—it
Woods,
is difficult
these words and
particu-
actions
dispute
larly, or at
that a man’s
any of
other
coworkers
ironworkers
matter,
subjective
restaurant
think
out of
intent
do not
“manly”
out,
discriminate
sexually
against
him
they single
or when
him
tell him explicit-
them. This failure should end the
ly
tray
discus-
that he
his
‘like a wom-
“earrfies]
”
an,’
sion
the case.
activity
mock his lack of sexual
with
women,
continuously call him
“she” or
Indeed,
majority
the ease the
cites for
And,
sure,
“her.”
Id.
to be
the Tenth
proposition
that words alone demon-
rejected
Circuit
of sexual
claim
discrimi-
subjective
strate Wolfe’s
intent itself belies
nation in a setting similar to the one now
the weakness of
application
its
here.
In
Medina,
before us.
each of these
establish
is,
That
ful claim for sexual harassment.
majority upholds
plaintiffs
claim
motive of
unless there is some
Wolfe’s
upon
based
same-sex sexual harassment
if such a motive
peculiar to Woods. But
any
gender
evidence
stereotyping without
existed,
EEOC
neither claimed nor
has
gender
stereotyping actually
oc-
majority
it. Nor does
demonstrated
implication
holding
this
curred. The
indicates
illuminate what evidence
Wolfe’s
vulgarities
and crude behav-
certain
intent
different.
toward Woods
occurring in
all-
ior-including those
motive,
there is
evidence
this
Without
male
on the construction
environment
notion that
nothing supporting the
illegal
necessarily constitute
site—
against
sexually discriminated
Woods
violation of
laws of
alone,
every
man
opposed
each
States, even
no reason exists
United
when
crudely
with whom he
interacted.
words
acts are
presuming these
by a
discriminate
Finally,
majority opinion
takes no motivated
desire
holding
upon
Finding
sex.
the overall social context
based
account of
extension of what were once
important
gross
case
It is
be a
which this
occurred.
*29
upon
liability, notes,
decision,
sensible limitations
Title VII
every
based
this
one of
respectfully
I
dissent.4
Woods’s co-workers could have filed suit
against Boh Brothers.
JONES,
Judge,
EDITH H.
Circuit
decision, however, goes
This
farther
JOLLY, SMITH,
dissenting, joined by
application
single-sex
than its
work-
DeMOSS, CLEMENT,
OWEN,
and
places. EEOC claimed to advocate that
Judges.
Circuit
there
“no
is
coarse workplace exclusion”
inspire
Bad facts often
bad law. And
VII,
from Title
especially for classically
always
sex talk
sex
doesn’t
mean that
is
male locales like the oil patch.
itWhat
was,
involved. Supervisor Wolfe’s conduct
persuaded
majority
has
to adopt is the
indeed, bad,
juvenile.
and
What
boorish
disturbing proposition that,
expo-
to avoid
grossness
elevated
in an
environ-
all-male
sure to Title
liability, employers
VII
must
ment to a Title VII claim of employment
purge every workplace
speech
ges-
of
discrimination “because of’
“sex”?
Woods’s
might
in any
tures that
way
viewed
as
expert
The EEOC
to offer an
witness
had
tokens
sex discrimination.2 Consider
to explain its case. That
tell us
should
memorandum,
“Etiquette
attached
for
something.
opposite-sex
In Title VII
Ironworkers,” which suggests
prudent
how
cases,
no expert
explain
we need
employers may respond
the majority
employment
come-
implications
sexual
Today’s
decision.
Title
holding shifts
VII
ons, put-downs, pat-downs,
stereotyp-
liability
offending speech
toward
based on
Here,
all-male,
ing.1
heterosexual crew
alone,
tether,
Judge Jolly notes,
without
as
job.
was
a “macho”
performing
We know
to discrimination
sex. Vulgar
“because of’
differently
that men
women
behave
when
speech
ubiquitous
today’s
culture and
(as
aren’t around
do women
by
surrounded
everywhere
else
from
women).
protected
govern-
threats,
physical touching,
No
ment
diktat
First Amendment.
quo,
sexual quid pro
employment
retali-
workplace, however, vulgar
or offen-
ation
imposed
plaintiff.
was
on the
Yet
speech
inspire litigation
sive
now
proof
sexually-moti-
without such hard
harassment,
employers
costs
vated
hundreds
thousands of
majority affirms
defend; may
stigmatize
substantial
for dollars to
sexual harassment verdict
forever
Kerry
As Judge Jolly’s
Woods.
dissent
the “harasser”
crime
principal
whose
note,
majori-
forty-year history.
4. As a final
I would add that the
harassment in its
The dis-
ty
regarding
Ellerth/Faragh-
wrong
is also
imposition
trict
extensive and
court’s
im-
injunc-
er
and the
affirmative defense
issue of
practical remedies in
case is thus an
this
respect
tive relief. With
to the affirmative
single super-
to the conduct of a
overreaction
defense,
specifically
that he
Woods
admitted
visor,
discharged,
conduct
now
whose
lasted
complain
knew he
behav-
could
about Wolfe’s
forty years
a few months in the
context
ior, but that he never did so until the occasion
single
without
incident.
management immediately
when
responded
complaint by reassigning
another
him to
question
dissent does not
This
address
Furthermore,
work site.
USCA5 1788-89.
any way standards for racial harassment un-
injunctive
awarded
district
relief
VII.
der Title
totally inappropriate.
court was
This case
supervisor
complaint by
involved
one
one
acknowledged during
2. EEOC counsel
en
who,
stated,
just
one
failed to
individual —
argument
banc oral
that Prime Minister Mar-
company
make the
aware of
garet Thatcher would have violated Title VII
site,
who,
until after he was taken off the
chastising
she
harasser,
because
was known for
her
along
alleged
longer
with his
is no
ministers, asking
male cabinet
whether there
company.
company
with the
has had
—and
among
complaint
no other
was a “real” man
them.
meritorious
justi-
cannot be
taste;
The verdict Woods
by workplace
may be outlawed
bad
*30
Price
simply
adding
fied
Waterhouse’s
may subject
sensitivity training;
theory
stereotyping”
plurality
“gender
intrusive,
in-
workplaces to
court-ordered
Pnce Waterhouse has
top
on
of Oncale.
essence, this
monitoring.
judg-
In
junctive
gender
claims
become the talisman for
portends
government-compelled
ment
I
dispute
not
that other
stereotyping.4
do
I therefore dis-
workplace speech code.3
specific
this as
recognized
circuits have
sent.
discrimination
form of sexual harassment
dissent makes
Judge Jolly’s excellent
recall,
important to
under Title VII. It is
majority
to this
that the
succumbed
clear
Price
with a
though, that
Waterhouse dealt
theory I concur in his
a dubious case.
action, employment
concrete adverse
Judge
dissent and in
DeMoss’s observation
partnership
accounting
in an
denial of
remand,
on
the district court need not
that
firm,
partners
plain-
and the
evaluated the
damages
verdict
render
recalculate
tiff
on well-known indicia of the
based
punitive damages
the elimination of
appearance
of female
and be-
stereotyping
pyrrhic victory.
evi-
stereotyping
havior.5 Their overt
a motivation to discriminate
dence of
rea-
This dissent will address additional
against
plaintiff
was a
because she
why
misconduct was not ac-
sons
Wolfe’s
Here,
non-stereotypical female.
unlike
stereotyping”
“gender
tionable
Waterhouse,
Price
is no
stereo-
there
overt
harassment;
the erroneous introduction of
epithets
“princess,”
like
typing—unless
case;
expert testimony
support
EEOC’s
“fairy,”
avowedly
“queer”
among
used
Ellerth/Faragher
employer’s
and the
de-
men
to con-
heterosexual
be inferred
fense.
note gender stereotyping.
Oncale, moreover,
affir-
require
does
1. No Actionable Sex Harassment.
v.
of this verdict. Oncale
mance
Sundown
Servs.,
Judgment
Inc.,
75,
as a matter of law should
er
523
118
U.S.
Offshore
(1998).
fact,
998,
been
because there
insuf-
granted,
have
S.Ct.
140
201
L.Ed.2d
way—
ficient
that
harassed
out of its
Supreme
evidence
Court went
unanimously and repeatedly
stressing
of’ Woods’s sex.
Woods “because
—
Hopkins,
U.S.
unsurprising
It is
the EEOC
tion. Price Waterhouse v.
490
3.
that
should
1791,
251,
1775,
228,
pursue
this
a Title VII case with
ultimate
L.Ed.2d
109 S.Ct.
104
so,
government recently pro
(1989).
federal
attempted
result. The
Even
if it
to do
mulgated procedures
government-subsi
for
plurality opinion
controlling. More
is not
dramatically
dized
cur
universities
will
over,
stereotyp
plurality opinion uses sex
speech
campus
tail free
in the
name
only
ing
by the
remarks
male decision-makers
See, e.g.,
alleviating
Wal
sex discrimination.
they
were
to dis
as evidence
motivated
Olson,
First,
Afterward,
ter
Verdict
Sentence
against
plaintiff.
female
Id. The
criminate
2013;
July
Wendy
Magazine,
Commentary
agreed to the
other members of the court
Allowed,
Kaminer,
No Sex Talk
ATLAN
pur
relevance of
for
limited
remarks
TIC,
16, 2013,
May
www.theatlantic.com/se
See,
294,
pose
e.g.,
U.S.
alone.
xes/archive/2013/05/no-sex-talk-al-
J.,
("Title
(Kennedy,
dissenting)
S.Ct.
Courts have struck down sim
lowed/275782.
independent
VII
cause of action
creates
speech
violating
campus
ilar
codes
stereotyping.
...
'[Such] [e]vidence
for sex
Univ.,
Temple
First
v.
Amendment. DeJohn
is,
course, quite
question
relevant to
301,
(3d Cir.2008).
313-20
intent.”).
discriminatory
plurality's
4.
Waterhouse
discussion
The Price
Waterhouse,
See, e.g.,
Price
6.
In Price
ized the
"direct and
evidence as
substantial
according
proof
tiff did not
impermissible
dress or act
to the male
that an
motive
relied
was
Waterhouse,
partners’ stereotyped
femininity.
upon.”
notions of
Price
490 U.S. at
Supreme
unanimously
(Kennedy,
dissenting).
The
Court
where had plaintiff female been mistaken of’ if sex the other talk dirty ladies to or male, “slightly for a herself as described around bawdy epithets her. If or misun- masculine,” more men’s wore button down grounds derstood humor can infer- slacks, makeup, shirts and avoided and had ring gender stereotyping, same-sex then hair). plaintiff short Even Price employers cautious must monitor and ban evidently did Waterhouse not “conform” “offensive” speech punish “offenders.” objectively stereotypical appear female judgment should be reversed. majority opinion ance and behavior. The cites not a single contrary.9 case Expert Testimony. Witness *33 up
In an effort
its
prop
holding,
the
in
majority dispenses
a footnote
majority
Farpella-Cros
likens
case to
this
with
question
a psychiatrist’s
whether
Care,
by v. Horizon Health
9. See also
Wise Bus.
Support
Prowel v.
na v. Income
New
285,
(3d Cir.2009) (conclud
(10th Cir.2005)
579 F.3d
291-92
(finding
F.3d
ing
plaintiff
acknowledged
that a male
who
upon gender
sexual harassment based
stereo-
voice,
speaks
high
that he
with a
walks in an
typing when "there
no evidence ... that
[wa]s
manner,
way
effeminate
and sits "the
a wom
plaintiff]
[the
did not dress
behave like a
an would sit” adduced sufficient evidence woman”);
stereotypical
Nichols v. Azteca
jury);
submit his sex
claim to a
discrimination
Enters., Inc.,
Rest.
Ctr.,
Vickers v.
Med.
Fairfield
Cir.2001) (holding
plaintiff
that male
who was
(6th Cir.2006) ("Rather,
his claim fails
for,
alia, walking
carrying
attacked
inter
allege
failed
because Vickers
that he
has
tray
had
“like a woman”
established a
gender
did not conform to traditional
stereo
claim).
viable sex discrimination
work.”);
types
way
in
observable
Medi-
characteristics,
in-
but “common sense”
expert in re-
as an
qualified
Dr. Gold
objectionable behav-
juries whether
ad-
forms
assessing scientific articles
viewing and
ior
of’
victim’s sex.
occurred “because
Whether the
dressing sexual harassment.
occurring at all-
described as
activities she
Second,
“exper-
cloaked in the mantle of
male,
legally
constitute
isolated work sites
tise,”
testimony
her
had
confuse
prin-
was the
actionable sexual harassment
jury
“sociological” perspec-
between
Although she
jury.
cipal issue before
tive, which,
said,
solely
on
as she
based
case,
in
testimony
this
not
on
opine
did
views, and the
subjective
the plaintiffs
research that
opinions
her
described
re-
legal
of harassment
definition
the conduct and
exactly
tracked almost
quires objective
harasser’s
evidence
Boh
work crew
Brothers
situation
objectively
severe misconduct.
motive
particular.
actions in
She
and Wolfe’s
case, the potential
confusion was
epithets
the same
classified
discriminatory
heightened because Wolfe’s
in
engaged
and the same conduct
used
com-
motive was shown at most Wolfe’s
Dr.
sex-stereotyping activity.
spe-
Gold
as
Ones;
ment
of Wet
about Woods’s use
cifically
sex harassment
socio-
defined
ob-
only
“evidence” of motive was
other
terms,
it
legal
and she defined
logical, not
gestures
scene
Wolfe directed
words
standpoint”
“from a
science
as based
social
workers, inspec-
at Woods as well as other
subjective
plaintiffs
on
views.10
tors,
Thus,
only
and his own
son.
testimony confusing
psychiatrist’s
testimony was
two
This
inadmissible for
liability,
but was also
standard
First,
subject
it dealt
reasons.
essential connector between Woods’s alle-
expert
testimony
nothing
to which
adds
gations
“be-
finding
lay
experience
jury.
to the
of a
significant
of’ sex.
cause
expertise
“help
did
Her
trier
fact to understand
evidence
to de-
testimony
occasionally
has
expert
That
...” Fed.R.Evid.
termine a fact
issue
been
Title VII cases is not
admitted
702(a).
area of human re-
Regarding this
in this
admissibility
determinative of its
*34
intensely context-specific
lations and the
unprecedented
Notably,
case.
novel and
juries
should
able
inquiry, judges
in
of the sexual harassment cases
none
bullying
to differentiate between
with sex
cited
this
was
by
majority
the
dissent
bullying
the victim a
words and
because
expert
testimony
to “explain”
introduced
male.
en banc brief asserts a
EEOC’s
gender stereotyping harassment.
Even
testimony
“[mjany
for expert
need
because
notably, although
expert
more
an
witness
laypersons serving
juries
on
will have had
in
testified
the seminal Price Waterhouse
knowledge
experience
little
with or
about
case,
says,
plurality
“we are
opinion
that
type
of sexual harassment
occurs
tempted
say
testimony
Fiske’s
that Dr.
unique,
settings
in
male-dominated work
It
merely icing
Hopkins’
was
on
cake.
oil-rig
police departments
like
crews.”
special training to
sex
takes no
discern
Many
juries
on
will not
laypersons serving
stereotyping
description
aggres-
in
an
“
in
employed
requiring
have been
environ-
as
‘a
employee
sive female
’”
ments
sex discrimination cases
charm
490 U.S. at
from which
course at
school.”
forces, 256,
at
The
may spring,
example,
employer,
sales
S.Ct.
1793.
clinics, universities,
furthermore,
challenge
or manufac-
did not
the admis-
medical
testimony.
expert’s
has
See 490
turing plants.
workplace
unique
sibility
Each
deposition
inadvertently heightened
at the conclusion of
The
Dr.
out
order
court
by admitting
videotaped
impact
Gold's
her
evidence.
1999)
at
(quoting
1793. Justice
Faragher,
U.S.
S.Ct.
U.S. at
O’Connor,
judgment,
(internal
in the
concurring
2293)
118 S.Ct. at
quotation
way
went out of
state her view that
her
omitted).
marks
case,
“testimony such Dr. Fiske’s in this
Boh
aspects
Brothers satisfied both
alone,
standing
justify shifting
would
the test as a matter of law. The majority
to the
persuasion
employer
the burden of
opinion correctly
that an employer
*35
complaint
with
is
procedure
necessary
Ellerth/Faragher
Defense:
” Ellerth,
every
in
instance....
524 U.S. at
defense,
employer
Under this
an
will not
Here,
proofs
FROM: September 2013
DATE: epithets and develop- the newest ruled that common sexual keeping up law, vulgar frequently when too gestures, care- used employment ments in have male, by a can specialist supervisor, heterosexual fully reviewed and hired outside against company on opinion support a verdict give legal us a concern- counsel male, recent behalf of another heterosexual implications of a Fifth Cir- ing ac- EEOC v. Boh plaintiff. looking Instead of on these banc cuit en decision. or, worst, bullying, us, employer horseplay Like in that tions as Bros.... jury verdict engaged heavy approved construction and court case “gender-stereotyping harassment.” in all-male crews. Like operated often ease an ex- record, EEOC intends to make this us, years it had an unblemished *36 workplaces. ample But a Title case. the court for similar without VII (5th Cir.2004) ("We have found that the prompt action often 11. Boh Brothers look remedial by separating prompt as employer Woods from as soon action as a took remedial law.”) cases). of Wolfe’s behavior. Hock (citing Duckworth heard matter of several Commc’n, v. Westward man you general level, need not advise of the costs 1. At the most We em- all ployees can incur in cases. must refrain company any these from com- written, spoken, to hundreds of thousands out- or addition munication — fees, gesticulated may legal damages any create judgment side for —that suggestion “sexual stereotyping” into may figures. run six- The EEOC re- “gender-based or bullying.” Please got, and and intrusive quested, sweeping implications consider broad that will ex- injunction require significant this prohibition, some of fol- which paperwork penditures compliance costs All employee low. interactions must sensitivity regular workplace training and (or fully gender be inclusive at least one employees. for over thousand gender ambiguous). Careless consequences, avert these we recom- To jokes and phrases will toler- not be company immediately that the mend issue they may ated if interpreted be following non-gender- proper, rules for carry stereotyping overtone. stereotyping Em- workplace behavior. 2. No more banter about func- bodily ployees should be informed that the rules tions, otherwise, sexual or or human all-male, board, apply across the all- physical appearance. Those who do female, posi- and mixed-sex and offices enjoy sweat, references to toilet workplace The tions. must be cleansed humor, tattoos, muscles, tight jeans, speech may misper- and actions that be large may beards out singled feel or twisted as ster- reflecting gender ceived as not “man enough” for such harassment. eotyping speech. 3. Do not appearance discuss the NOTICE CONCERNING TITLE VII any women intimate sexual en- To our Associates: counters, and do not refer to or use way. that refer to any words sex in are all company’s You aware of this This includes CUSS WORDS. unwavering policy prevent discrimina- 4. your Do not swivel hips, make ob- any race, sex, tion of kind based on reli- gestures scene or mimic “twerk- gion origin. or national of a Because new ing.”1 decision, court we must now focus on elimi- discussing topics 5. Avoid
nating “gender stereotyping” same-sex body- viewed “non-inelusive”: any kind as well. This men means Scouts, building, Boy fish- hunting, may expose company liability for riflery. ing, and Football other speech presence their behavior in the sports “macho” may be an unwel- men, presence other women in the subject come to those who consider of other women. Although these rules will boorishly aggressive. them apply throughout company, you IRON- engage have to special competitive WORKERS take notice. 6. Do not apply workday, activity, lifting objects, rules like throughout heavy hours, breaks during and lunch when- the worksite. This can create gathered ever two or more of unmanly inferiority workers are sense non- together. participants. Definition, Twerk sexually provocative involving See manner thrust- Dictionary, Oxford http://oxforddictionaries.com/us/defimtioii/ low, ing hip squatting movements and a (last american_englisb/twerk Sept. visited stance[.]" 2013). popular "[To] dance to music in a *37 in nick- successive violations will result termi- gender-stereotyped use
7. Do not name-calling. Supervisors names or nation. will not call a “three- We you may encourage to work policy, might in- strikes” as that term be “put your backs saying harder principally to male terpreted to refer it,” like up,” or “man and terms into hardly explain We need sport of baseball. grounds will or “sissies” be “ladies” for any terminated same-sex worker discipline. immediate for have a time stereotyping will hard gender humor, which common Schoolyard is 8. finding employment. future jobsites fill down-times and at our to Company quarterly The will conduct boredom, is- raises sensitive relieve sessions, sensitivity you where can learn put off sues. Some workers gender stereotyping more about offensive by jokes personal grooming, about you against fellow males and what can do deodorant, hair, or scented chest As prevent questions or correct it. clothing gender form of hostili- time, newly call any arise our hired Sex ty. Poking fun at a worker HR Stereotype Depart- in the Counsellor soda, being able drinking diet ment. jalapeno, using a raw “Wet to eat himself, or Ones” “Purell” clean or calling “wimp” someone SMITH, Judge, JERRY E. Circuit “geek” may get sued
“wuss” us DeMOSS, dissenting, joined Senior you in serious trouble. Judge. Circuit locker room behavior is for- Asinine law,1 By extending applicable deftly Examples of this would be bidden. Judge majority— Elrod and en banc anatomy, about crude comments deep with the best of intentions —take a gestures, towel-swatting, actions like politi- altar of the twin idols bow the acts, any simulated sexual be- engineering. cal correctness and social make ill havior would someone departure Because that is a demonstrable personal expression at ease with his experience and imposes from reason and Relieving in gender. yourself of his private an unsustainable burden on em- forbidden; presence of others is Texas, Louisiana, Mississip- ployers company all reconfiguring is respectfully Ipi, dissent. any worker prevent restrooms observing another worker’s from We can take cue—for better or bodily functions. League Football worse—from National touching any 10. Avoid coworker (“NFL”). notion Regarding the manner, if except asked to res- Washington venerable Redskins franchise person physical cue the from dan- change should be forced to the name of its then, touching ger, and even avoid might Ameri- pique team because some private areas. Indians, can the NFL stat- Commissioner ed, just days ago, these a few “what we PENALTIES: A first violation of though rules result in a a second have do is we have listen.... warning, will offended, suspension pay, person violation in If one we have to lis- without law, expand practical regard 1. In to the I in the dis- cations instead on the concur but Jones, Judges Jolly, majority's ultimately sents of and DeMoss impact but sincere entirety. purpose their this dissent errant views. improve legal expli- not to on their excellent *38 employee That is the radical apparently ten.”2 named Joe sometimes wears agenda of to dumb down the EEOC: pink work, shirts to supervisor discourse, least in American the work- him, calls attention to saying something to avoid chance that someone place, like, “Look, wearing Joe’s a pink shirt might annoyed. be again.” supervisor The never says, any- to
By coincidence, just one, bizarre a week after just whether he does pink not like statement, Commissioner Goodell’s or, instead, shirts considers them insuffi- reported players four current NFL ciently masculine, but fact supervi- participating advertising are “mar- sor’s motivation is the latter. I asked keting promote blitz” to men’s use of a whether those facts be would sufficient for wipes of moistened toilet similar brand to a finding of liability damages for dis- contrary Apparently, Wet Ones.3 sex, crimination on account and the position advanced the EEOC and (if lawyer EEOC’s “Yes” replied sufficient- Woods, Kerry nothing there shameful— is ly pervasive). severe and in the of the NFL— even macho world using openly product. about man’s I gave also hypothetical: a second The same, except facts are the super- It would not be fair to accuse the en unspoken making visor’s for fun majority of least not reason adopting bane —at yet just position of Commissioner Joe supervisor just is that pink finds —the worry just Goodell that we if should one unattractive; aesthetically shirts to be Joe is But person ap- offended. EEOC way knowing has no whether the state- bent pears moving in that precipitously ments are a comment on his manliness. direction. The lawyer EEOC’s answered that those statements argument,
At oral I asked the would not actionable under EEOC’s attorney to A hypothetical: address male Title VII.4 Talk,” Sports, Sept. 2. NBC “Pro Football two weeks. brainchild It’s the of Mike Du- bin, Shave, CEO of Dollar who “Goodell on Redskins Name: 'If told The One ” Offended, Listen,’ approached Post: centers we "Most of the Person Is We Have To game They try guys were are this. not a http://profootballtalk.nbcsports.com/2013/09/ people reaching lot of out "We are to.” 11/goodell-on-redskins-name-if-one- men; something just wanted to make for person-is-offended-we-have-to-listen/. aspirational: way get it’s one,” it done in using Dubin said.... "I’ve been wet report part as follows: reads in Dubin, wipes years,” "It[’]s said an en- joyable got experience”.... pro- This has of the be one oddest Atkinson, Up Claire "NFLers Line players.... To Star in motions to involve NFL Four Wipes,” ... Ads for Men’s Toilet NEW YORK signed help NFL linemen have a small POST, 17, 2013, http://nypost.com/2013/ Sept. Venice, Calif., company crack a new mar- 09/16/mens-wipes-ads-star-centers-not-tight- paper targeted ket—moistened toilet — ends/. sector, just percent $8.7 men. The of the paper category, usually billion toilet squarely attorney's 4.The answer at odds aimed at infants and toddlers but the four testimony expert, with the EEOC’s Dr. burly hoping change centers are Gold, who, out, Judge points Liza Jones cheekily product Wipe with a called "One opined that sexual harassment should be players Charlies.” The Dallas Cow- sociologically plaintiff's viewed from —the Frederick, boys’ Travis Minnesota Vi- subjective perspective according rather than Sullivan, kings’ Buffalo John Bills’ Eric alleged By to the motive of the harasser. Dr. Wood, therefore, Diego account, Chargers’ pink- and the San Nick the second Gold's marketing supervisor part hypothetical, Hardwick —will be of a shirt which the blitz, Snap,” pink but entitled “Clean to kick off in views shirts as unattractive not un- *39 therefore, supervisors’ state- Enlarging an the kinds of reckoning,
By the EEOC’s can to claim employees a use liability any time ments employee establish can grounds for damages of leads additional or series jury could find that a comment (even race, sex, on other than suit bases the em- meant to refer to statements is because, the disability) possibly, or age, sup- to conform to some failure ployee’s the is or “mean” or employer “unfair” of sex-based behavior. standard posed or working “unpleasant” is environment preferences, for exam- Take entertainment “oppressive.”7 a casually even asks supervisor If a ple: why hunting she employee watches female on In a world in which comments Wet (or if a man fishing and on television shows pink or can considered Wipes shirts be enjoys & why he the Home Gar- is asked sex, the on account discrimination of Channel), for a that could be the basis den like a workplace American becomes more unsuccessful, that, ultimately if suit even personal than achieve- prison place a to de- expensive disruptive be and would ment, initiative, hu- positive individual and supervisor A would afraid to com- fend. be interaction; speech man one’s is chilled as well pliment employee female for how job. Judge keeping one’s As a condition in heavy she lifts boxes the ware-house observes, majority accurately the Jones tastefully to tell male subordinate how “portends government-compelled opinion his office. has decorated speech code”—“a of civili- workplace ‘code ty’ [imposed] workplace.” on the American positions by taken the EEOC in The re- resisting Instead of such Orwellian toto, majority large opinion and the (in Brother form of gime, Big which part, employment-at- also emasculate5 otherwise) constantly EEOC or moni- that, now, until was alive will doctrine6 “improper” to detect tors worksite Texas, Louisiana, and Missis- and well in majority the en thoughts, words banc way an can sippi. only employer The Congressional it mandate. fosters without ulti- possibility avoid the real of suit and damages position mate is to take the un- hypersensitivity that is blessed intentionally by majority nudges Goodell make sure Commissioner nothing workplace is uttered in the law in a direction that hastens cultural just a little single person. decay even and undermines —if even possibly could offend know, employment-at-will manly, presumably would in an 6. As we all doc- still result "[e]mployment usually ac- that is actionable claim for discrimination on trine describes super- the motive of the undertaken without a contract and that count sex because time, (whether secret) play any by em- spoken or terminated at either the visor would part. adopted, ployer employee.” Dr. would BLACK'S LAW If Gold's view (9th ed.2004). impose regime "zero-tolerance” DICTIONARY604 whereby workplace certain would comments they person mid-1980s, one be unlawful if offended of ex- 7. “Since creation sufficiently pervasive. and were severe and employ- ception exception to the after at-will ment doctrine has threatened to swallow major categories exceptions 5.Maybe I use rule. Four should not that word because (1) emerged: statutory might exceptions for much offend have too male-centric and classes; (2) excep- say protected public-policy excluded. I could women who feel So tions; (3) "eviscerate,” might exceptions; and upset implied-contract who but that those (4) exceptions good hunting warfare I could on the covenant of faith find offensive. ah, "subvert,” et dealing.” connotes fair Paula G. Ardelean use the word but that Employment Rights might & Development who "The sinister motive and offend those 2010,” points Responsibilities 25 ABA of view are from 1985 believe that all sincere (2010). morally & equivalent. J. LAB. EMP. L. good supported by of what awards are both important part the evi- bit—an dence, private employment the United then the district court about could reduce Societies, legal systems $75,000, and the each award which States. would repre- mutually they supportive, $150,000 de- which are sent one-half of the excess. The ultimately slowly, tragic con- cline but district court could also reduce the com- bang but a whim- “Not with a sequence: pensatory damage award 4/9ths per.” $150,000, punitive damage and reduce the *40 by $150,000, award which results 5/9ths DeMOSS, JR., R. Senior HAROLD $150,000, in a proportionate distribution of joined by Judge, dissenting, Circuit the exceeding cap. amount the statutory SMITH, Judges. Circuit JONES case, In this the district court’s order re- TV, B part I concur in Section of the ducing the damage comply awards to majority opinion, jury’s which reverses the statutory the cap expressly does state I damages award. further concur punitive how or why only it reduced the compensa- Jolly’s I completely Judge dissent. tory $200,000 damages from award separately my dissent express write to $50,000. majority’s to remand to the
the decision majority The opinion concluded that the court to determine whether the district evidence in does support this case support jury’s evidence sufficient to jury’s punitive damages award. The ma- compensatory damages award. jority opinion remanded the issue of $200,000in jury compensa- The awarded sufficiency of compensatory damages $250,000 in tory damages punitive court award the district for reconsidera- damages. damage These awards to- two tion. I respectfully dissent from such con- $450,000, aggregate an which ex- taled First, clusion. party neither has raised statutory damages limit on ceeds issue as to the of the correctness district See 42 U.S.C. $300,000 $150,000. by $50,000 entry court’s as the quantity 1981a(b)(3)(D). § judge The district thus compensatory damages. Secondly, as not- reducing faced the issue of these awards to ed majority, the district court has statutory with the limit. comply The stat- already sup- indicated that evidence offers guidance ute no how a court porting compensatory jury’s damages comply should reduce an award to with the $200,000 supported award of was not statutory cap. A review relevant major- the evidence. mere fact that law further case reveals established ity of this court has reversed the error reducing comply method for an award to the district ordering jury’s court in Thus, statutory cap. with the a number of damages not, award of punitive should options are a district available to court my opinion, the district re- allow court to reducing damage comply when awards to determine of compensatory the award For statutory cap. example, with the damages. court the sufficiency district could evaluate supporting damage the evidence awards and reduce the awards on the
strength or such If weakness of evidence. district court the damage finds Eliot, (To hyper- anthropocen- “The Men.” offend because it is
8. T.S. Hollow non-humans sensitive, tric.) maybe have Eliot should said "The Persons,” might that term Hollow but even notes non-discriminatory prove a basis for an [to can satisfy prong first promulgating 277,109 490 U.S. at employment action.]” an policy anti-harassment that includes ad- S.Ct. at 1805. on to She went demonstrate equate complaint procedures. Boh in Broth- importance of context these cases: ers’ policy nondiscrimination stated: “All always gender “play Race and a role” in personnel including, actions but not an in limited employment benign decision to, benefits, compensation, transfers, sense that human these are characteris- lay- tics of which are ..., decisionmakers aware offs will be administered without re- they may in about which comment a gard race, color, religion, sex, disability, perfectly nondiscriminatory neutral and or national origins” and working “[a]ll con- fashion. For the context of example, ditions will be maintained a non-discrim- ease, lady a mere reference to “a inatory Although manner.” the majority might candidate” show that gender opinion broad, being criticizes it for decision, “played a role” in the but no language parallels Title VII. The Boh support means could rational factfin- policy posted job sites, Brothers der’s inference that decision was was mailed to employees, provid- and was made “because of’ sex. What is re- ed to them when hired. company The quired Hopkins is what Ann showed employees they instructed could re- here: direct evidence decisionmak- port to their supervisor, someone in placed negative ers substantial reliance authority supervisor, job above the to a illegitimate an criterion in reaching foreman, Lipani, corporate or to John their decision. in-house counsel an EEOC officer. Id. If Woods could not show “direct evi- dence” placed substantial “[Wolfe] majority opinion takes Boh Broth- negative illegitimate reliance on an criteri- alleged ers to task for many inadequacies on,” sex, i.e. Woods’s without an expert, company even policy, while it con- then Woods’s claim Only should fail. cedes that “proof employer had new trial can proposition. test this promulgated an policy antiharassment