It should come as no surprise that the brand of humor enjoyed by workers on many construction sites is not for the faint of heart. In a work environment replete with jokes about bodily functions and physical attributes, most construction workers have become accustomed to the use of coarse and sexually explicit language. However, courts are becoming less tolerant of on-the-job conduct that once would have been excused as mere horseplay or “boys being boys.”
In EEOC v. Boh Bros. Constr. Co. LLC, No. 11-30770 (5th Cir. Sept. 27, 2013), a 10-6 en banc decision with several strong dissents, the Fifth Circuit Court of Appeals upheld a jury verdict which awarded $201,000 in compensatory damages to Kerry Woods, an iron worker once employed by Boh Brothers Construction. The EEOC brought the claim on behalf of Woods pursuant to Title VII of the Civil Rights Act of 1964.
The conduct from which the claim arose is offensive and extreme, but similar behavior is not out of the ordinary in rugged work environments. In 2005, Boh Brothers assigned Woods to an all-male bridge-maintenance crew where he worked under supervisor Chuck Wolfe. Wolfe has been appropriately described as a “world-class trash-talker and the master of vulgarity in an environment where these characteristics abound.”
During an on-site conversation, Woods admitted to Wolfe and other coworkers that he preferred using “Wet Ones” instead of toilet paper. Woods’s revelation led to tireless and sexually explicit taunting by Wolfe, who referred to Woods as a “pu–y,” “princess,” and “fa–ot.” But Wolfe’s tormenting of Woods went beyond verbal harassment. On multiple occasions, Wolfe exposed his genitals to Woods and simulated sexual intercourse while standing behind Woods. Wolfe later testified that he found Woods’s use of “Wet Ones” to be “kind of gay” and “feminine,” and that Woods never should have admitted his use of the wipes to “a bunch of iron workers.” Importantly, neither Wolfe nor Woods is homosexual, and Wolfe testified that he never believed Woods was actually gay.
Furthermore, other than using “Wet Ones,” there is no indication that Woods’s appearance or behavior failed to comply with traditional gender norms.
Title VII makes it unlawful for an employer to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” The Supreme Court has found that “[t]he creation of a hostile work environment through harassment … is a form of proscribed discrimination.” Id. (quoting Vance v. Ball State Univ., 133 S. Ct. 2434, 2455 (2013) (Thomas, J., concurring)). An employer’s liability for workplace harassment is affected by whether the harasser is a coworker or a supervisor of the victim. If the harasser is the victim’s coworker, “the employer is liable only if it was negligent in controlling working conditions.” Vance, 133 S. Ct at 2439. On the other hand, if the harasser is the victim’s supervisor, and the supervisor’s harassment culminates in a tangible employment action, the employer is liable regardless of its negligence. However, an employer may avoid liability by establishing: (1) that it exercised reasonable care to prevent and correct any harassing behavior, and (2) that the victim unreasonably failed to utilize the opportunities provided by the employer.
According to the court, regardless of whether opposite-sex or same-sex harassment is at issue, a plaintiff must prove that discrimination occurred “because of sex” and that the harasser’s behavior was so objectively offensive as to alter the conditions of his or her employment. A plaintiff may rely on evidence of gender-stereotyping to show that discrimination occurred “because of sex.” Because Wolfe subjectively determined that Woods’s use of “Wet Ones” constituted “unmanly” behavior, Wolfe engaged in gender stereotyping. Thus, when Wolfe harassed Woods on the basis of his perceived non-compliance with gender norms, Wolfe’s harassment was “because of sex.” The persistent and graphic nature of Wolfe’s harassment was sufficient to alter the condition of Woods’s employment. Therefore, the court held that Title VII was violated.
Despite Wolfe’s violation of Title VII, Boh Brothers could have avoided vicarious liability for Wolfe’s actions by showing that it exercised reasonable care to prevent and correct sexual harassment and that Woods unreasonably failed to take advantage of any preventative or corrective opportunities provided to him. The court found that although Boh Brothers “maintained a broad nondiscrimination policy, it offered no specific guidance regarding sexual harassment.” The court also determined that Boh Brothers did not take Woods’s report of harassment seriously enough because it conducted only a very brief investigation into Woods’s claims and did not discipline Wolfe for his conduct. The failure of Boh Brothers to exercise sufficient care to prevent and correct the sexual harassment precluded it from avoiding vicarious liability for Wolfe’s harassment of Woods.
The Fifth Circuit’s opinion provides several valuable lessons to employers seeking to protect themselves from vicarious liability for sexual harassment claims. First, employers must make their employees, particularly those acting as supervisors, aware that harassment between or among any employees will not be tolerated. This is true whether the work is being performed in the office or in the field, and whether the project is staffed by an all-male, all-female, or mixed-gender workforce. The opinion teaches that sexual harassment can occur even if both the harasser and victim are heterosexual and the same gender. Sexual harassment need not be motivated by sexual desire. Workers should also be informed that harassment can be verbal, physical, or carried out through the use of gestures. Second, employers should take action to ensure that a comprehensive sexual harassment policy is in place. The policy should be specific. It should explain how and to whom sexual harassment must be reported. It should also specify procedures by which harassment is swiftly investigated and corrected. Posting the company’s broad anti-discrimination policy on a wall at the project site is not enough to protect the employer from vicarious liability for sexual harassment claims. Finally, members of management should receive regular training to keep them up-to-date with regard to the evolving law that applies to workplace harassment claims. Although it is impossible to monitor the conduct of each employee on every project site, the implementation of a comprehensive sexual harassment policy will help to insulate an employer from vicarious liability for the conduct of its employees. ■
About The Author:
Christopher A. Scifres is an associate with Ford Nassen (www.fordnassen.com), which is nationally recognized in the construction industry and one of the largest construction law firms in Texas. Mr. Scifres practices construction law with a focus on the litigation and resolution of construction disputes. In addition, he regularly assists clients in preparing and negotiating contracts and other procurement documentation. You can reach him at or 214.523.5100.
Modern Contractor Solutions, January 2014
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