Holland Phillips Oct. 10, 2013, 5:04pm

NEW ORLEANS—Judges in the Fifth Circuit Court of Appeals are split in a review of a previously appealed Title VII sexual harassment case involving a man who was allegedly verbally and physically abused by his male supervisor while working at Boh Brothers Construction Company.

The plaintiff in the case is the Equal Opportunity Employment Commission (EEOC) on behalf of Kerry Woods, a previous employee of Boh Brothers, who claims that he was harassed by his supervisor, Chuck Wolfe, on a near-daily basis.

In 2007, the EEOC charged Boh Brothers with discrimination for sexual harassment and retaliation. In 2009, a district court jury rendered judgment in favor of the plaintiff as to the harassment claim, awarding compensatory and punitive damages totaling $451,000, but capped at $300,000, and it ruled in favor of the defendants as to the retaliation claim.

Boh Brothers filed an appeal, and a panel of the Fifth Circuit Court overturned the jury verdict citing insufficient evidence. The EEOC requested that the case be reviewed by all the Fifth Circuit judges, en banc. The majority partly affirmed, partly reversed, and partly remanded the jury’s decision to the district court.

The majority opinion was rendered by Circuit Judges Jennifer Walker Elrod, Carolyn DineenKing, W. Eugene Davis, James L. Dennis, Edward C. Prado, Leslie H. Southwick, Catharina Haynes, James E. Graves Jr., Stephen A. Higginson and Chief Judge Carl E. Stewart.

The Court reversed a punitive damages award of $250,000 because Boh Brothers provided evidence that neither Wolfe nor his supervisor understood that male-on-male harassment not motivated by sexual desire could be in violation of federal law. The plaintiff could not meet the requirement that “the defendant employer ‘must at least discriminate in the face of a perceived risk that its actions will violate federal law to be liable for punitive damages," the Court held.

The majority decision remanded the compensatory damages award of $50,000, which had been reduced from $201,000 to keep the total award under the damage cap of $300,000.  The Court deferred a decision to the district court to consider whether the original $201,000 in compensatory damages should be awarded to the plaintiff.

The majority decision also affirmed other aspects of the district court’s decision including injunctive relief awards, holding that Woods was severely and pervasively harassed because of sex for his failure to conform to stereotypes of “manly men” in the eyes of Wolfe. They also held that there is no obligation for the plaintiff “to prove that [his employer’s subjective stereotyping] was rooted in some objective truth; here, for example, that Woods was not, in fact, ‘manly.'"

Defense arguments made by Boh Brothers were shot down because the defendant’s discrimination policies lacked specific guidelines on sexual harassment complaints, on how to report and investigate them, and because they lacked formal training programs to inform employees about discrimination. The majority found Boh Brothers liable as their response to Woods’ harassment allegations involved little to no investigation and failed to punish the harasser.

Dissenting opinions on the case were made by Circuit Judges E. Grady Jolly, Edith A. Jones and Jerry E. Smith, who are all joined by Harold R. DeMoss Jr., Priscilla R. Owen and Edith Brown Clement.

Judge Jolly held that the EEOC did not provide enough evidence that Wolfe believed Woods did not conform to stereotypical masculine behavior, and that the plaintiff provided no evidence showing how Woods failed to conform to his traditional gender role. The judge saw no evidence of Wolfe’s motive to discriminate against Woods and chalked up Wolfe’s behavior to the social context of same-sex work environments: “[t]he majority should call it for what it is: immature and gutter behavior and among male coworkers. And then drop it.”

Judge Jones found three problems with the court decision: she argues that the plaintiff’s case has no proof of an actionable basis in sex stereotyping, that the expert witness testimony should be declared inadmissible and that the defense made by Boh Brothers successfully proved that they are not liable for Wolfe’s harassment. Jones warned that “the majority opinion threatens to transform the American workplace with a judicially-enforced ‘code of civility’.”

Lastly, Judge Smith argued that by upholding judgment in favor of the plaintiff, “Judge Elrod and the en banc majority—with the best of intentions—take a deep bow at the altar of the twin idols of political correctness and social engineering.”

Case no. 2011-30770.

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