Big Bob supervises an all-male make-ready crew. The team gets along well—they get their work done but have fun doing it. The guys banter throughout their shift, calling each other inappropriate names, telling dirty jokes, mimicking sexual acts, and interspersing their conversation with crude profanity. They talk about “guy stuff” and tease one another about each individual’s habits.

For instance, Clean Carl is ribbed as “kind of gay” for his use of hand sanitizer, Selective Sam is nicknamed “baby girl” because of his “feminine” preference for using wet wipes, and Discerning Dan is called “princess” because he bypasses the team’s water and Cokes for only Gatorade. Big Bob thinks the guys don’t mind this banter; in fact it is the “man stuff” that keeps the team close-knit. No harm in a little locker-room talk among the guys, right?

Not so fast said the U.S. Court of Appeals for the Fifth Circuit in a recent case, EEOC v. Boh Brothers Construction Company.^[1] In Boh Brothers, evidence of similar interactions among an all-male crew supported a claim for sexual harassment of one crew member.

The use of gender-stereotyping evidence to prove sex discrimination is not new.^[2] However, the Fifth Circuit clarified two major points regarding the use of gender stereotyping to support sex discrimination claims based on same-sex harassment. It is likely that this decision will expand plaintiffs’ ability to bring sex discrimination claims based on gender stereotyping.

First, the Fifth Circuit held that a plaintiff’s ability to show that same-sex harassment was sex discrimination is not limited by Supreme Court precedent. The court looked to the Supreme Court case that first provided that sex discrimination could be based on same-sex harassment, Oncale v. Sundowner Offshore Servs., Inc.^[3]

In Oncale, the Supreme Court outlined three ways in which same-sex harassment could constitute sex discrimination. The plaintiff could:

(1) show that the harasser is homosexual and the harassment was motivated by sexual desire;

(2) show that the harassment was in such sex-specific and derogatory terms that the harasser was clearly motivated by general hostility to the presence of a particular gender in the workplace; or

(3) offer direct comparative evidence on how the harasser treated members of both sexes in a mixed-sex workplace.

Significantly, the Fifth Circuit held that this list was not exclusive—claims based on same-sex harassment need not fit into one of these categories. Instead, sufficiently severe and pervasive harassment based on the plaintiff’s nonconformity with gender stereotypes is sex discrimination, regardless of the harasser’s sexual desire, hostility to the plaintiff’s gender in the workplace or treatment of individuals of the opposite gender.

Second, the Fifth Circuit held that the plaintiff could be discriminated against based on gender stereotypes even if the plaintiff objectively conformed to those stereotypes. In the Boh Brothers case, the plaintiff was not overtly effeminate. However, the court held that Boh Brothers discriminated against him based on his sex because he “fell outside of [his supervisor’s] manly-man stereotype.”

The court focused on the harasser’s subjective perception of the plaintiff and explicitly rejected any requirement that the harasser’s discriminatory motivation be based on objective facts. What matters is the harasser’s motivation, regardless of whether the harasser is correct about the individual’s actual conformance to stereotypes. In the same way that an employer harassing an individual because of his race (but mistakenly thinking that he is Indian rather than African-American) is still liable for race discrimination, an employer harassing a male because he is not “man enough” is liable for sex discrimination regardless of how “manly” the individual is or is not.

Several judges on the Fifth Circuit disagreed with the majority, arguing that the expansion of sex discrimination based on same-sex harassment obligates employers to “purge every workplace of speech and gestures that might be viewed in any way as tokens of sex discrimination.” One judge even wrote a proposed notice to employees listing all of the behavior that would be inappropriate, including banter about bodily functions, discussions about sex, “non-inclusive” topics such as football or hunting, competitive activity such as a lifting contest, gender-based nicknames, vulgar humor or crude gestures. Although the memo was (intentionally) extreme, it highlights new issues for employers to consider following the Boh Brothers decision.

This case expands the conduct that can be actionable sex discrimination based on same-sex harassment. Employers should train both their supervisors and employees that gender-stereotyping behavior can be sexual harassment. Significantly, the harasser in Boh Brothers was unaware that a heterosexual male could sexually harass another heterosexual male. Although conduct must be sufficiently severe or pervasive to constitute sexual harassment, employers will be well-advised to stop over-the-top gender-stereotyping behavior before such behavior reaches the level of sex discrimination.

_{[1] No. 11-30770 (5th Cir. Sept. 27, 2013).}

_{[2] See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (holding that an accounting firm’s decision not to grant a female accountant partnership because her “aggressive” personality was not feminine, and suggesting that she walk, talk and dress more femininely, constituted sex discrimination).}

_{[3] 523 U.S. 75 (1998).}