A ‘Wet One’ Renders Him Gay? 5th Circuit to Reconsider Same-Sex Harassment Case

In Equal Employment Opportunity Commission v. Boh Brothers Constr. Co., ironworker Kerry Woods (male) asserted that his supervisor, Chuck Wolfe, subjected him to all of the following:

• Called Woods names such as “faggot” and “princess.”

• Approached Woods from behind to simulate sexual intercourse.

• Exposed his genitals to Woods numerous times.

• Accused Woods of being girlish because he used “Wet Ones” instead of toilet paper to clean himself after using the bathroom.

Neither Woods nor Wolfe is homosexual. According to the Court, the workplace was full of this type of misogynistic and homophobic epithets, and the recipients, including Woods, responded in kind.

After Woods’s termination, he filed a discrimination charge with the EEOC, claiming, among other things, same-sex harassment. In the subsequent lawsuit filed the EEOC, the jury returned a verdict in Woods’s favor, awarding him $200,000 in compensatory damages (statutorily reduced to $50,000) and $250,000 in punitive damages.

The 5th Circuit, however, reversed:

Title VII protects employees against workplace discrimination, not against all forms of mistreatment. The EEOC alleges that Woods was unlawfully harassed because he was not stereotypically masculine. Because the only evidence of non-stereotypically masculine behavior in the record is Woods’s use of “Wet Ones,” we conclude that the evidence is insufficient to support the jury’s verdict that Woods was discriminated against “because of … sex.”

In other words, Woods could not establish unlawful same-sex harassment because Wolfe was not homosexual, was not hostile to men in the workplace, and worked in a single-sex workplace. The 5th Circuit left for another day the question of whether sex stereotyping is a cognizable form of same-sex harassment under Title VII.

It appears that day is upon us. Last month, the 5th Circuit agreed to rehear this case en banc.

The issue will resolve tension between two Supreme Court opinions:

• Price Waterhouse v. Hopkins, the seminal case on the illegality of sex-based stereotypes under Title VII.
• Oncale v. Sundowner Offshore Services, which permits same-sex harassment claims, but only if the harasser: (i) is homosexual, (ii) is motivated by a general hostility to the presence of the same sex in the workplace, or (iii) comparatively treated members of one sex differently than members of the other in a mixed-sex workplace.

If the 5th Circuit reverses course and permits the EEOC to pursue Woods’s claim for general same-sex harassment, it will signal a giant step towards doing that which Congress has refused—protecting sexual orientation from discrimination as a class.