Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer
to discriminate against an employee with regard to his sexual orientation.
Case law has established that the creation of a hostile work environment
through harassment and sex stereotyping is a form of discrimination prohibited
by the law. Seems pretty clear. But what if a straight guy is harassed
at work because he seems gay? The straight guy is not a member of a protected
class, and he isn't being harassed because of his sexual status, so
the law doesn't apply to him, right?
Wrong, says the Fifth Circuit Court of Appeals. In a case brought by Kerry
Woods, an iron worker against his employer, Boh Brothers (EEOC v. Boh
Wolfe, the superintendent of an all-male crew on a construction site operated by
Boh Bros. subjected Woods, an iron worker on Wolfe's crew, to almost-daily
verbal and physical harassment because Woods did not conform to Wolfe's
view of how a man should act.
The harassment allegedly involved Wolfe calling Woods various unsavory
names, Wolfe approaching Woods from behind while Woods was bent over and
simulating anal intercourse, and Wolfe exposing his penis to Woods while
urinating, court papers said. Wolfe also allegedly made a comment about
Woods' daughter that made Woods cry. Woods' supervisor admitted
that he harassed Woods because he perceived Woods as feminine and because
Woods didn't conform to gender stereotypes associated with iron workers.
A jury found for Woods, and awarded him both compensatory and punitive
damages. Boh Brothers appealed, and won, the court finding that because
there was no evidence that Woods was either homosexual or effeminate,
he can't use gender-stereotyping evidence to show sex discrimination
unless he can show he does not conform to societal gender expectations.
On appeal, the EEOC argued that according to the court's logic, male
workers could be harassed with impunity for not being macho enough as
long as they are actually macho. The appeals court agreed, and decided
that Woods' harassment award was proper.
The takeaway? You can prevail in a sexual harassment suit even if you are
harassed by someone of the same sex, and despite the fact that you are
not a member of a protected class. If you feel you have been sexually
harassed at your place of employment in New York, contact the attorneys
at Schwartz Perry & Heller LLP.