NEW ORLEANS – The U.S. Equal Employment Opportunity Commission (EEOC) will have its case against Boh Brothers Construction reheard before the U.S. Court of Appeals for the Fifth Circuit.

In a petition filed April 3, a majority panel voted to rehear the case which was originally decided last July. The case involves a male ironworker Kerry Woods who was allegedly sexually harassed while working on the Twin Spans bridge during post-Katrina repairs.

The EEOC brought a Title VII case on his behalf in 2009.

The EEOC claimed that after complaining about harassment Woods was retaliated against when he was moved to a job site with less pay and eventually laid off.

A jury found in favor of Woods on the harassment claim and in favor of Boh Brothers on the retaliation claim. The jury awarded Woods $200,000 in compensatory damages and $250,000 in punitive damages. The district court reduced the former to $50,000 in compliance with the statutory damages cap. Boh Brothers appealed the decision.

In an opinion filed July 27, the Appeals Court vacated the judgment and remanded it for entry of a judgment dismissing the suit.

Circuit Judge E. Grady Jolly wrote the opinion on behalf of himself and Judges Harold R. DeMoss Jr. and Carl E. Stewart.

The panel found that the harassment was not an unlawful same-sex discrimination under Title VII of the 1964 Civil Rights Act. The court held that while the EEOC claims that Woods was harassed because he was not “stereotypically masculine," there is limited evidence that this is actually the case. The Court had not previously addressed whether sex stereotyping theory of sex discrimination is adequate to prove a same-sex harassment claim.

Further Jolly wrote that misogynistic and homophobic slurs were regularly used by many crew members and that it was not “the business of the federal courts generally to clean up the language and conduct of construction sites.”

The case will be reheard by the full court at an as yet unnamed date.

Read our prior reports on this at the links below:

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