Gender Stereotyping can be Same-Sex Harassment: Are your policies (and employees) ready?

It should hopefully come as no surprise to employers that federal law prohibits sexual harassment – including when the harasser and victim are the same sex. But, what if an employee is harassed for not being masculine or feminine enough? A recent Fifth Circuit case suggests that harassment based on gender stereotyping, if severe or pervasive, can be same-sex sexual harassment, and the failure to avoid such conduct can be costly. 

In EEOC v. Boh Brothers Construction Company, LLC, a male ironworker claimed that he was harassed by his male supervisor because he was perceived to be insufficiently manly. No. 11-30770, 2013 U.S. App. LEXIS 19867 (5th Cir. Sept. 27, 2013). A jury found that the supervisor made graphic sexual gestures and crude and derogatory comments about the ironworker, implying that he was feminine. The jury awarded the ironworker over $450,000, which was subsequently lowered to $300,000 to comply with federal limitations on such damages. 

On appeal, the Fifth Circuit held that the supervisor's gender stereotyping was evidence of same-sex sexual harassment and the persistence and severity of the conduct violated federal law. But, as the Fifth Circuit Court noted, the judgment could have been avoided if the company had simply instituted suitable policies and training programs regarding sexual harassment. 

Would your managers and supervisors recognize such behavior as unlawful sexual harassment? Do your policies clearly prohibit such conduct and explain how employees can complain about it? If not, training can help your company avoid the types of mistakes that lead to legal liability. Elarbee Thompson offers innovative, customizable training options that can be tailored to your organization's needs. From short presentations focused on new legal developments and discrete areas of the law to day-long programs involving interactive workplace scenarios, cross-examinations, and jury deliberations, our firm helps your employees and managers prepare to face the types of real-world issues that can lead to an unproductive workplace and significant legal liability. 

If you have questions about this case, training programs or any other employment-related issues, contact your Elarbee Thompson attorney.