In Equal Employment Opportunity Commission v. Boh Brothers Construction Co., Case No. 11-30770 (5th Cir. Sept. 27, 2013) (revised Sept. 30, 2013) (en banc) the United States Court of Appeals for the Fifth Circuit held that the employer of an all-male heterosexual work force at a construction site was liable for creating a hostile work environment for an employee who was harassed by his supervisor because he was not a manly enough man.
Kerry Woods, an iron worker on a bridge repair and maintenance crew who used Wet Ones, was subjected to verbal and physical harassment by the superintendent of his all-male crew, Chuck Wolfe, because he did not conform to the gender stereotypes of the superintendent.
The EEOC brought an action against the employer for sexual harassment, and the district court awarded Woods damages. A panel of the Fifth Circuit reversed the verdict in favor of Woods and held that the evidence was insufficient to sustain that Woods was the victim of a hostile work environment that constituted discrimination because of sex.
The Fifth Circuit granted rehearing en banc and by a 10-6 vote held that harassment involving heterosexual men in an all-male work force is discrimination on the basis of sex because, in the eyes of the superintendent, Woods was not manly enough and failed to conform to traditional gender stereotypes.