Workplace sexual harassment award in excess of $300K vacated by appeals court

Kyle Barnett Jul. 30, 2012, 2:00pm

The I-10 twin spans during construction.

NEW ORLEANS – The 5th Circuit Court of Appeals has vacated a large award given to a plaintiff who accused his employer of same-sex sexual harassment.

Kerry S. Woods initially won damages in the amount of $451,000 by a jury in 2009 when the U.S. Equal Opportunities Commission filed a lawsuit against his employer Boh Brothers Construction Co. The judge in the initial trial lowered that award to $301,000 before the 5th Circuit vacated the judgment altogether last week.

Writing for the three person panel E. Grady Jolly wrote, "There is no claim or evidence that either Woods or (Charles) Wolfe is homosexual or effeminate. There is plenty of evidence that Wolfe is a world-class trash talker and the master of vulgarity in an environment where these characteristics abound."

Woods claimed that Wolfe, as his supervisor on the on a maintenance crew working on the I-10 twin spans project, referred to him by homophobic epithets, such as "faggot" and "princess,, exposed himself numerous times and simulated having sexual intercourse with him while he was bent over and engaged in workplace tasks.

After working on a crew with Wolfe for 10 months Woods complained about the alleged behavior after he was sanctioned for an unrelated incident and removed from the work crew. Three months later Woods was laid off permanently due to lack of work at which time he filed the EEOC complaint.

Jolly wrote, "Woods was the primary and constant victim of Wolfe's offensive abuse and harassment, much of it in the nature of sexual vulgarity." However, Jolly also wrote, "(Woods) was by no means his only target. Nor was Wolfe the sole offender. To the contrary, misogynistic and homophobic epithets were bandied about routinely among crew members, and the recipients, Woods not excepted, reciprocated with like vulgarity."

The court ruled that there was insufficient evidence that Wolfe's treatment of Woods was based on a gender stereotyping and that it was not the aim of the court to "clean up the language and conduct of of constructions sites."

Despite the court ruling in their favor, Boh Brothers still expressed regret over the incident.

"While we agree with the 5th Circuit Court's conclusion that this conduct never bordered on sexual harassment, as a company we were nonetheless embarrassed by the supervisor's conduct," said spokesperson Ann Barks.

"This was not up to our standards for treating employees and will not be tolerated. After our investigation of the matter, the supervisor was given appropriate discipline. In the aftermath, we have taken steps to better train our entire workforce on appropriate behavior."

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