A federal court described Charles “Chuck” Wolfe, a crew superintendent in of an all-male construction crew, as a “world-class trash talker” and a “master of vulgarity.” One of the members of Wolfe’s crew was Kerry Woods, a straight male. Woods claimed that his supervisor, Wolfe another straight man, had engaged in unlawful “same sex” harassment, in violation of Title VII of the Civil Rights Act of 1964, by referring to him in “raw homophobic epithets and lewd gestures.”
A jury heard Woods’s claims and awarded him nearly $500,000. The Fifth Circuit Court of Appeals heard the employer’s appeal, threw out the jury award, and dismissed the complaint (in this opinion).
Why? Find out after the jump…
Readers of this blog may remember this post about a failed claim of same-sex harassment at an oil rig. In that case, the Sixth Circuit Court of Appeals relied upon the U.S. Supreme Court’s three-part test in Oncale v. Sundowner Offshore Services, Inc., another same-sex harassment case involving employees at an oil rig. In Oncale, the high court held that a jury may infer that same-sex harassment occurred because of sex when the plaintiff can produce:
- credible evidence that the harasser was homosexual;
- evidence that makes it clear that the harasser is motivated by general hostility to the presence of the same sex in the workplace; or
- comparative evidence about how the alleged harasser treated members of both sexes in the mixed-sex workplace.
Applying that test, the Sixth Circuit determined that the plaintiff was unable to satisfy any of the three Oncale elements.
Turning our attention back to the Fifth Circuit decision to throw out the jury verdict in favor of Mr. Woods, the court too cited the Oncale test, and determined that Mr. Woods did not meet any of the three elements. However, the Fifth Circuit further queried whether Oncale precludes other possible forms of same-sex harassment, such as sex stereotyping. The Court noted that even if the law permits a cause of action for sex stereotyping, “it is a circular truth that a plaintiff may not recover based on nonconformance to gender stereotypes unless the plaintiff conforms to nonconformance gender stereotypes.”
Put simply, if the plaintiff is stereotypically masculine, like Rick Rude, a theory of sexual stereotyping will fail and so will a claim under Title VII. Ultimately, the Fifth Circuit declined to resolve whether sex stereotyping is a cognizable form of same-sex harassment. However, had it conducted a factual analysis, it would have found no evidence that Woods was effeminate or non-stereotypically masculine. So his sex-stereotyping case would have failed anyway.
(h/t: EmployerLINC; Image Credit: sah3teely.com)