EEOC v. Boh Brothers Construction Co.

:
Expanding Same-Sex Sexual Harassment
Jurisprudence Beyond Sexual Desire

LOUISA GIBBS

ABSTRACT
In EEOC v. Boh Bros. Constuction Co., male ironworker Kerry Woods
endured Charles Wolfes male employers sexually explicit remarks and
actions, which were motivated by the fact that Wolfe perceived Woods as
feminine based on his conduct at the worksite. Woods filed a charge of
discrimination under Title VII with the Equal Employment Opportunity
Commission, which litigated the case before the United States Court of
Appeals for the Fifth Circuit. The agency argued that Wolfe sexually
harassed Woods based on the theory of sex stereotyping; Woodss
employer argued that sexual harassment did not occur, and, even if it had,
sex stereotyping does not violate Title VII as a matter of law.
This Comment argues that the Fifth Circuit ultimately rendered the
correct decision in finding the evidence sufficient to establish Title VII
same-sex sexual harassment based on sex stereotyping. However, the
Courts failure to utilize its sister circuits views in the decision and,
instead, focusing on the evidence weakens its ruling and the principles of
equality driving Title VII. For example, the Second and Sixth Circuits have
strong arguments supporting and opposing same-sex sexual harassment,
which the Fifth Circuit chose not to acknowledge or consider in its analysis.
Such an analysis would have strengthened the opinion and widened the
circuit split emerging concerning same-sex sexual harassment, a split only

Juris Doctor, cum laude, New England Law | Boston (2014); B.A., magna cum laude, English
and Critical Media & Cultural Studies, Rollins College (2011). I would like to thank the New
England Law Review Editors and Associates for their tireless, and often thankless, commitment
to legal scholarship; the New England Law | Boston faculty, especially Elizabeth Spahn,
Lawrence Friedman, Louis Schulze, Jr., and Robert Coulthard, for reminding me that law
school and the bar exam are not impossible; and finally to New England Law | Boston for
giving me the opportunity to become an attorney.

805

GIBBS_COMMENT_11_FINAL (DO NOT DELETE)

806

New England Law Review

1/6/2015 1:06 PM

v. 48 | 805

the Supreme Court can address. There exists a clear need for courts to
provide adequate judicial protections for men subject to same-sex sexual
harassment and, unfortunately, the Fifth Circuits holding falls short of
providing such necessary protections by defying the principles that drive
Title VII.

INTRODUCTION

or months, ironworker Kerry Woods (Woods) worked for Boh

Brothers Construction Company (Boh Brothers) where he was
subjected to ridicule by his supervisor, Charles Chuck Wolfe
(Wolfe), who called Woods faggot, [p]rincess, and pussy;1 stood
behind him simulating anal sexapproximately sixty timeswhenever
Woods bent over to perform work tasks; 2 and exposed his genitalia to
Woods while he urinated.3 Wolfes conduct towards Woods began when
Woods used Wet Ones instead of toilet paper; Wolfe viewed this conduct
as feminine and kind of gay.4 Wolfes conduct left Woods humiliated and
embarrassed.5
Upon Woodss eventual termination from Boh Brothers, 6 the Equal
Employment Opportunity Commission (EEOC) filed suit on Woodss
behalf against Boh Brothers.7 After a jury verdict in Woodss favor and an
appeal from Boh Brothers, the Fifth Circuit faced the following issue of first
impression: whether sex stereotyping is a cognizable form of same-sex
[sexual] harassment under Title VII.8 The Fifth Circuit heard the case
twice: the first time ruling in Boh Brothers favor;9 the second in Woodss
favor.10 While the holding alone favors expanding sex under Title VII, the

1 EEOC v. Boh Bros. Constr. Co. (Boh Bros. Constr. Co. I), 768 F. Supp. 2d 883, 887 (E.D. La.
2011), vacated and remanded by 689 F.3d 458, 463 (5th Cir. 2012), revd en banc, 731 F.3d 444 (5th
Cir. 2013).
2

EEOC v. Boh Bros. Constr. Co. (Boh Bros. Constr. Co. III), 731 F.3d 449, 459 (5th Cir. 2013).
Id.
4 Id. at 45759 (providing an excerpt of Wolfes testimony).
5 Id. at 449.
6 Id. at 451.
7 Complaint at 1, Boh Bros. Constr. Co. I, 768 F. Supp. 2d 883 (E.D. La. 2011) (No. 09-6460).
8 EEOC v. Boh Bros. Constr. Co. (Boh Bros. Constr. Co. II), 689 F.3d 458, 463 (5th Cir. 2012).
9 See id. at 462 (holding the evidence insufficient to establish sexual harassment).
10 See Boh Bros. Constr. Co. III, 731 F.3d at 456, 462 (finding the evidence sufficient to hold
that Wolfe sexually harassed Woods for not being masculine enough); Lorene D. Park, Sharply
Divided Fifth Circuit Finds Sexual Epithets, Mock Humping Show Same-Sex Harassment in Gender
Stereotyping Case, WOLTERS KLUWER (Oct. 1, 2013), http://www.employmentlawdaily.com/
3

index.php/2013/10/01/sharply-divided-fifth-circuit-finds-sexual-epithets-mock-humping-

GIBBS_COMMENT_11_FINAL (DO NOT DELETE)

2014

Beyond Sexual Desire

1/6/2015 1:06 PM

807

reasoning disregards its fellow circuits approaches and diminishes its

holding by focusing on same-sex sexual harassment evidence over the act
itself, thereby contradicting the driving principles of Title VII.11
This Comment argues that the Fifth Circuit in EEOC v. Boh Bros.
Construction Co. (Boh)12 ultimately rendered the correct decisionfinding
the evidence sufficient to establish the Title VII same-sex sexual harassment
claim predicated upon sex stereotypingbased on Supreme Court
precedent. However, the Fifth Circuits failure to utilize its sister circuits
views in the decision and its focus on the evidence presented weakens its
ruling and the principles of Title VII. Part I of this Comment provides an
overview of Title VII from its passage to relevant federal case law on sexual
harassment, same-sex sexual harassment, and sex stereotyping. Part II
discusses Boh. Part III argues that the Fifth Circuit conducted an
unsatisfactory analysis by failing to utilize the same-sex sexual harassment
jurisprudences of its sister circuits and focusing on the evidence over the
act itself. Part IV asserts that the Courts reasoning hinders Congresss
intent for courts to interpret sex within Title VII jurisprudence.
I.

Background
A. Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 (Title VII or the Act) makes
it an unlawful employment practice for an employer . . . to discriminate
against any individual with respect to his compensation, terms, conditions,
or privilege of employment, because of . . . race, color, religion, sex, or
national origin.13 Congress passed Title VII to attain equality of
employment opportunities and remove the historic hurdles that favored
white employees.14 The Act provides courts with full equitable power to
hear employment-discrimination cases and serves as a cause of action for
employees filing sex-discrimination claims.15 The statute created the EEOC

show-same-sex-harassment-in-gender-stereotype-case/.
11

But see Boh Bros. Constr. Co. III, 731 F.3d at 45356.
731 F.3d 444.
13 Title VII of the Civil Rights Act of 1964, Pub. L. No. 88-352, 703, 78 Stat. 241, 255 (1964)
(codified at 42 U.S.C. 2000e2(a)(1) (2006)); see also City of L.A. Dept. of Water & Power v.
Manhart, 435 U.S. 702, 708 (1978) (It precludes treatment of individuals as simply
components of a racial, religious, sexual, or national class.).
12

14

Griggs v. Duke Power Co., 401 U.S. 424, 42930 (1971); see Affirmative Action
Appropriate Under Title VII of the Civil Rights Act of 1964, as amended, 29 C.F.R. 1608.1(b)
(2012).
15 See Civil Rights Act of 1991, Pub. L. No. 102-166, 108, 105 Stat. 1076 (1991) (codified at
42 U.S.C. 2000e2(m) (2006)) (discussing 703 of the Civil Rights Act of 1964).

GIBBS_COMMENT_11_FINAL (DO NOT DELETE)

808

New England Law Review

1/6/2015 1:06 PM

v. 48 | 805

to investigate and litigate Title VII violations,16 among other employment

statutes.17
Congress enacted Title VII to promote hiring on the basis of job
qualifications, rather than on the basis of race or color.18 Originally, Title
VII did not include the term sex until 1964 when Representative Smith of
Virginia proposed its addition to prevent discrimination against another
minority group, the women . . . .19 The Act itself faced some political
hostility,20 particularly sparked through the addition of sex, because
many believed the prohibition of sex discrimination deserved its own
legislation, as including sex in Title VII would not be to the best
advantage of women at this time.21 However, the House of
Representatives ultimately amended Title VII to include sex22 and in doing
so provided little legislative history to guide [courts] in interpreting the
Acts prohibition against discrimination based on sex.23
With this lack of legislative history behind the definition of sex,
courts have ruled on sex-discrimination cases with due deference24 to

16 See 42 U.S.C. 2000e5(a)(b); Dawn M. Buff, Note, Beyond the Courts Standard Response:
Creating an Effective Test for Determining Hostile Work Environment Harassment Under Title VII,
24 STETSON L. REV. 719, 726 (1995). In 2012, the EEOC received 71,578 charge receipts filed
under Title VII, including concurrent charges filed under other statutes that the EEOC
enforces. Title VII of the Civil Rights Act of 1964 Charges (includes concurrent charges with ADEA,
ADA and EPA) FY 1997 FY 2013, EEOC, http://www.eeoc.gov/eeoc/statistics/enforcement/
titlevii.cfm (last visited Sept. 18, 2014).
17 Procedural Regulations, 29 C.F.R. 1601.1 (2012); see, e.g., Laws Enforced by EEOC, EEOC,
http://www.eeoc.gov/laws/statutes/ (last visited Sept. 15, 2014) (listing other EEOC-enforced
employment statutes such as the Americans with Disabilities Act of 1990).
18 Price Waterhouse v. Hopkins, 490 U.S. 228, 243 (1989) (quoting 110 C ONG. REC. 7247
(1964)); see also Deborah N. McFarland, Note, Beyond Sex Discrimination: A Proposal for Federal
Sexual Harassment Legislation, 65 FORDHAM L. REV. 493, 497 (1996).
19

110 CONG. REC. 2577 (1964), microformed on Reel 458 vol. 110 Parts 12 Pgs. 12840
(Princeton Microfilm Corp.); see Buff, supra note 16, at 72425.
20 See Susan Estrich, Sex at Work, 43 STAN. L. REV. 813, 81617 (1991). A handful of
representatives found Title VII as an absurd and irrational statute and hoped that adding sex
would refrain its passage into law. See, e.g., id.
21 110 CONG. REC. 2577 (1964) (internal quotation marks omitted) (including a statement
from Rep. Celler quoting a letter from the Department of Labor against including sex in Title
VII).
22 Id. at 2584.
23 Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64 (1986).
24 See, e.g., Griggs v. Duke Power Co., 401 U.S. 424, 43334 (1971) (holding that the
employer violated Title VII by requiring a minimum score on two aptitude tests and a high
school education because it discriminated against African-American employees).

GIBBS_COMMENT_11_FINAL (DO NOT DELETE)

2014

1/6/2015 1:06 PM

Beyond Sexual Desire

809

legislative policies and [the] history of Title VII at large.25 For instance,
the Supreme Court recognized that a legislative lack of concern for
protecting men from sex discrimination should not govern how the Court
interprets Title VIIs statutory protections.26 The Court defines Title VII
discrimination as mak[ing] a distinction, [and] mak[ing] a difference in
treatment or favor, and those distinctions or differences in treatment or
favor which are prohibited by [Title VII] . . . .27 Guided by the driving
principles of the original Title VII protected classes, particularly the
motivation behind categorizing race,28 the Supreme Court extended Title
VII to include sex as a protected class.29
B. Relevant Supreme Court Precedent on Sex Discrimination
1.

Sexual Harassment

Sexual harassment, and the creation of a hostile work environment, is a

form of sex discrimination.30 Although courts lack congressional guidance
on how to define and interpret sex under Title VII, they have interpreted it
to strike at the entire spectrum of disparate treatment of men and women
[in employment] regarding the terms, conditions, and privileges of
employment.31 In Meritor Savings Bank, FSB v. Vinson (Meritor), the

25 Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971) (holding that the
employer violated Title VII by imposing a no-marriage policy on women, but not men).
26

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998) (observing that by
including sex under Title VII, the legislature intended to protect women, but this does not
preclude same-sex sexual-harassment claims); see infra Part I.B.2.
27 Price Waterhouse v. Hopkins, 490 U.S. 228, 244 (1989) (quoting 110 C ONG. REC. 7213
(1964)).
28 110 CONG. REC. 2581 (1964) (debating the inclusion of sex under Title VII, Representative
Green opposed the amendment fearing it would jeopardize the Acts primary goal to end
discrimination against the Negroes of this country); see also THERESA M. BEINER, GENDER
MYTHS V. WORKING REALITIES: USING SOCIAL SCIENCE TO REFORMULATE SEXUAL HARASSMENT
LAW 99 (2005) (quoting Meritor Sav. Bank, 477 U.S. at 67) (analogizing racial harassment and
sexual harassment case law); Kara L. Gross, Toward Gender Equality and Understanding:
Recognizing that Same-Sex Sexual Harassment Is Sex Discrimination, 62 BROOK. L. REV. 1165, 1170
71 (1996) (advocating for equivalent analyses of sex and race in the Title VII context).
29 Price Waterhouse, 490 U.S. at 244 n.9 (The somewhat bizarre path by which sex came to
be included [in Title VII] . . . does not persuade us that the legislators statements pertaining to
race are irrelevant to cases alleging gender discrimination.).
30

Vance v. Ball State Univ., 133 S. Ct. 2434, 2455 (2013) (Thomas, J., concurring) (citing
Oncale, 523 U.S. at 78). See generally Ellen Frankel Paul, Sexual Harassment as Sex Discrimination:
A Defective Paradigm, 8 YALE L. & POLY REV. 333, 34653 (1990) (providing additional
information about sexual harassment and sex-discrimination).
31

City of L.A. Dept. of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978) (quoting

GIBBS_COMMENT_11_FINAL (DO NOT DELETE)

810

New England Law Review

1/6/2015 1:06 PM

v. 48 | 805

Supreme Court determined that sexual harassment creates a hostile or

abusive work environment giving rise to actionable claims under Title VII
because the employer discriminated on the basis of sex. 32 The Court held in
the plaintiffs favor and ruled that an actionable sexual harassment claim
must allege severe or pervasive behavior.33
2.

Same-Sex Sexual Harassment

Most sexual harassment law focused on the male-female dynamic until

Oncale v. Sundowner Offshore Services, Inc. (Oncale), which challenged the
status quo because it involved an employer sexually harassing an
employee of the same sexmale.34 The plaintiff worked for the defendant
on an oil platform where the plaintiff was subjected to physical and sexual
assaults, among other actions of a sexual nature; the plaintiff subsequently
terminated his employment out of fear that his coworkers would rape
him.35 Although the Court emphasized that Title VII is not a general
civility code,36 it noted that Title VII protects men as well as women, and
the prohibition of harassment on the basis of sex requires neither
asexuality nor androgyny in the workplace.37 Thus, the Court held sex
discrimination actionable under the Act when the plaintiff and defendant
are the same sex, despite Congresss failure to anticipate same-sex sexual
harassment.38
The Supreme Court in Oncale identified three evidentiary paths for
same-sex sexual harassment plaintiffs39: (1) the plaintiff could provide

Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971)).
32 477 U.S. at 66. In that case, the plaintiff engaged in sexual intercourse with her supervisor
approximately forty to fifty times because she feared losing her job. Id. at 60.
33 Id. at 67 (defining severe or pervasive as alter[ing] the conditions of [the victims]
employment and creat[ing] an abusive working environment); see also Heather L.
Kleinschmidt, Note, Reconsidering Severe or Pervasive: Aligning the Standard in Sexual Harassment
and Racial Harassment Causes of Action, 80 IND. L.J. 1119, 112021 (2005) (discussing how courts
determine if sexual harassment satisfies the severe or persuasive standard).
34 523 U.S. 75, 7677 (1998).
35 Id. at 77.
36 Id. at 81 (deliberating over the fear that extending same-sex sexual harassment as
cognizable under Title VII would turn the Act into a general civility code); see, e.g.,
Baskerville v. Culligan Intl Co., 50 F.3d 428, 430 (7th Cir. 1995) ([Title VII was] not designed
to purge the workplace of vulgarity.); Wasek v. Arrow Energy Servs., Inc., 682 F.3d 463, 467
(6th Cir. 2012) ([T]he conduct of jerks, bullies, and persecutors is simply not actionable under
Title VII unless they are acting because of the victims gender.).
37

Oncale, 523 U.S. at 81.

Id. at 79; see supra text accompanying note 26.
39 See Oncale, 523 U.S. at 8081.
38

GIBBS_COMMENT_11_FINAL (DO NOT DELETE)

2014

Beyond Sexual Desire

1/6/2015 1:06 PM

811

credible evidence that the harasser is homosexual; 40 (2) the plaintiff could
show that the harasser [is] motivated by general hostility to the presence
of [members of the same sex] in the workplace; or, (3) the plaintiff can
show direct comparative evidence about how the alleged harasser treat[s]
members of both sexes in a mixed-sex workplace.41 The plaintiff
consistently bears the burden of proof that the conduct was not merely
tinged with offensive sexual connotations, but actually constituted
discrimination because of sex.42 Oncale settled the then-existing circuit
split over whether same-sex sexual harassment was actionable under Title
VII;43 however, the three evidentiary paths created a new divide among the
circuits over whether to interpret the pathways inclusively (not limiting
how the plaintiff may prove same-sex sexual harassment) or exclusively
(limiting the plaintiffs means of proving such harassment).44
3.

Sex Stereotyping

The landmark Supreme Court case for sex stereotyping, Price

Waterhouse v. Hopkins (Price Waterhouse),45 continues to drive sexstereotyping jurisprudence in employment discrimination cases. 46 In this
case, the defendant, a professional accounting partnership, rejected
plaintiff Ann Hopkins as a partner because she would have to walk more
femininely, talk more femininely, dress more femininely, wear make-up,
have her hair styled, and wear jewelry for such a promotion.47 The Court
held that Price Waterhouses decision not to promote Hopkins was an

40

Id. at 80 (Courts and juries have found the inference of discrimination easy to draw in
most male-female sexual harassment situations . . . . [Now t]he same chain of inference would
be available to a plaintiff alleging same-sex harassment, if there [existed] credible evidence [of
the] harasser[s] homosexual[ity].).
41 Id. at 8081.
42 Id. at 81; Boh Bros. Constr. Co. III, 731 F.3d 444, 455 n.5 (5th Cir. 2013) ([W]e echo the
Supreme Courts confidence that [c]ommon sense, and an appropriate sensitivity to social
context will enable courts and juries to distinguish between simple teasing . . . among
members of the same sex, and conduct which a reasonable person in the plaintiffs position
would find severely hostile or abusive.) (quoting Oncale, 523 U.S. at 82).
43 Matthew Fedor, Comment, Can Price Waterhouse and Gender Stereotyping Save the Day for
Same-Sex Discrimination Plaintiffs Under Title VII? A Careful Reading of Oncale Compels an
Affirmative Answer, 32 SETON HALL L. REV. 455, 45556 & n.4 (2002) (discussing the circuit split
and providing citations).
44 See Boh Bros. Constr. Co. II, 689 F.3d 458, 46162 (5th Cir. 2012); BEINER, supra note 28, at
10102; see also infra notes 5152.
45

490 U.S. 228 (1989).

Boh Bros. Constr. Co. II, 689 F.3d at 462.
47 Price Waterhouse, 490 U.S. at 232, 235.
46

GIBBS_COMMENT_11_FINAL (DO NOT DELETE)

812

New England Law Review

1/6/2015 1:06 PM

v. 48 | 805

employment decision based on sex and a violation of Title VII. 48

Concluding that Congresss intent to disallow employment-related
decisions based on gender appears on the face of the statute, the Court
interpreted Title VII to mean gender must be irrelevant to [such]
decisions.49
C. Relevant Circuit Courts Case Law on Sex Stereotyping Within
Same-Sex Sexual Harassment Claims Under Title VII
Appellate courts require same-sex sexual harassment plaintiffs to
prove sex-stereotyping claims in a variety of ways, 50 but this contributes to
the current circuit split regarding whether the Oncale pathways are
inclusive51 or exclusive.52 The Fifth Circuit initially held that same-sex
sexual harassment was not cognizable under Title VII.53 Since Oncale, the
Fifth Circuit has only faced same-sex sexual harassment cases involving the
first Oncale pathwayhomosexuality.54
The Sixth Circuit adopted an exclusive approach as demonstrated in
Wasek v. Arrow Energy Services, Inc. (Wasek).55 The plaintiff, an oil rig
servicer, quit his job upon refusing to continue working while his coworker touched him sexually and made sexually explicit remarks to him,
such as youve got a pretty mouth.56 The court held that the plaintiff did
48

See id. at 250.

Id. at 23940 (emphasis added).
50 See Fedor, supra note 43, at 46875.
51 See, e.g., BEINER, supra note 28, at 102 & n.12 (stating that some courts have assumed
Oncale consists of an instructive list); Linda Kelly Hill, The Feminist Misspeak of Sexual
Harassment, 57 FLA. L. REV. 133, 160 n.165 (2005) (listing cases that interpret Oncale as
instructive); Yvonne Zylan, Finding the Sex in Sexual Harassment: How Title VII and Tort
Schemes Miss the Point of Same-Sex Hostile Environment Harassment, 39 U. MICH. J.L. REFORM
391, 406 (2006) (finding that the Courts language does not suggest a limitation on the Oncale
evidentiary paths); Fedor, supra note 43, at 476 & n.175 (arguing that the Oncale pathways are
merely instructive, but listing cases that consider the Oncale pathways as exclusive).
49

52

See, e.g., Hill, supra note 51 (recognizing cases advocating the exhaustive approach).
Garcia v. Elf Atochem N. Am., 28 F.3d 446, 45052 (5th Cir. 1994) (holding that same-sex
sexual harassment is not cognizable under Title VII because it only addresses gender
discrimination), abrogated by Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1997);
Christopher W. Deering, Comment, Same-Gender Sexual Harassment: A Need to Re-Examine the
Legal Underpinnings of Title VIIs Ban on Discrimination Because of Sex, 27 CUMB. L. REV. 231,
24851 (1997). In fact, the Fifth Circuit ruled on Oncale before the Supreme Court overturned
it. See Oncale v. Sundowner Offshore Servs., Inc., 83 F.3d 118, 11920 (5th Cir. 1996), revd, 523
U.S. 75 (1997).
53

54

Boh Bros. Constr. Co. II, 689 F.3d 458, 46162 (5th Cir. 2012).
682 F.3d 463 (6th Cir. 2012).
56 Id. at 46566.
55

GIBBS_COMMENT_11_FINAL (DO NOT DELETE)

2014

Beyond Sexual Desire

1/6/2015 1:06 PM

813

not have a valid Title VII claim for same-sex sexual harassment because the
evidence did not strictly fall within an Oncale evidentiary path.57
In contrast, the Ninth Circuit adopted the inclusive approach in Nichols
v. Azteca Restaurant Enterprises, Inc. (Nichols) when it upheld admission of
sex-stereotyping evidence to prove same-sex sexual harassment.58 In that
case, the plaintiffs employer and co-workers taunted him for exhibiting
feminine behavior while working as a food server at the defendants
restaurant.59 The court found the harassment closely linked to gender,
and thus deserving of Title VII protections.60
II. EEOC v. Boh Brothers Construction Co.
A. Facts
In Boh, the plaintiff, Kerry Woods, worked as an ironworker for the
defendant, Boh Brothers Construction Company, for nearly two years. 61 In
January 2006, he was assigned to work on an all-male maintenance crew in
New Orleans after Hurricane Katrina. 62 Soon after this assignment, crew
superintendent Charles Chuck Wolfe began to harass Woods on a
regular basis.63 He called Woods names such as faggot, princess, and
pussy; joked about Woods being homosexual; 64 simulated sexual
intercourse with Woods when Woods bent over to perform work duties;
and exposed his penis to Woods on numerous occasions. 65 According to
Wolfes deposition, he called Woods princess and so forth because
Woods used Wet Ones instead of toilet paper and Wolfe considered this
conduct feminine66: [t]o bring Wet Ones to work to wipe your ass, you
damn sure dont sit in front of a bunch of iron workers and tell them about

57 See id. at 468 (holding that speculation of the plaintiff as possibly bisexual did not
suffice as credible evidence required under Oncale).
58

See 256 F.3d 864, 874 (9th Cir. 2001).

Id. at 870 (discussing how the plaintiffs male co-workers and supervisor referred to him
as she, faggot, fucking female whore, and ridiculed him for carrying his tray like a
woman).
60 Id. at 874.
61 Boh Bros. Constr. Co. II, 689 F.3d 458, 45860 (5th Cir. 2012).
62 Id. at 45960.
63 Boh Bros. Constr. Co. III, 731 F.3d 444, 449 (5th Cir. 2013).
64 Boh Bros. Constr. Co. I, 768 F. Supp. 2d 883, 887 (E.D. La. 2011), vacated and remanded by 689
F.3d 458 (5th Cir. 2012). The Fifth Circuit found no evidence to prove that Wolfe or Woods
were homosexual. Boh Bros. Constr. Co. III, 731 F.3d at 456 n.8.
59

65
66

Boh Bros. Constr. Co. II, 689 F.3d at 460.

Boh Bros. Constr. Co. I, 768 F. Supp. 2d at 887.

GIBBS_COMMENT_11_FINAL (DO NOT DELETE)

814

New England Law Review

1/6/2015 1:06 PM

v. 48 | 805

it.67 Woods complained to his foreman but to no avail. 68

Later, Woods requested to view the employee time sheet. 69 Wolfes
supervisor, Wayne Duckworth (Duckworth), arranged to meet with
Woods to discuss his request since such records were confidential.70 Before
the meeting, Wolfe told Duckworth that he didnt care for Woods
because Woods was different.71 Duckworth met with Woods the
following day, and Woods complained to him about Wolfes harassment;
in response, Duckworth sent Woods home for three days unpaid and then
relocated him, resulting in lower pay and a longer commute.72 Duckworth
investigated Woodss allegations but found no evidence of Title VII sexual
harassment.73 In February 2007, Woods was laid off for lack of work.74
B. Procedural History
Woods filed an EEOC discrimination charge upon his initial removal
and transfer.75 In September 2009, the EEOC brought an enforcement action
against Boh Brothers in the United States District Court for the Eastern
District of Louisiana alleging sexual harassment and retaliation under Title
VII.76 After a three-day jury trial, the jury returned a verdict in favor of
Woods on the sexual harassment claim and a favorable verdict for Boh
Brothers on the retaliation claim.77 Boh Brothers appealed to the Fifth
Circuit, which initially vacated and remanded the jurys verdict, holding
the EEOC lacked evidence to support its same-sex stereotyping theory as
Title VII sexual harassment.78 The EEOC then petitioned for, and obtained,

67

Boh Bros. Constr. Co. III, 731 F.3d at 458.

See id. at 45051.
69 Id. at 450.
70 Id. (identifying that such a request was a terminable offense).
71 Id. Wolfe further told Duckworth he found that Woods didnt fit in. Id.
72 Id.; Complaint at 9, Boh Bros. Constr. Co. I, 768 F. Supp. 2d 883 (E.D. La. 2011) (No. 096460).
68

73 Boh Bros. Constr. Co. III, 731 F.3d at 451. Duckworth found Wolfes behavior
unprofessional and in violation of Boh Brothers expectations, but not sexual harassment. Boh
Bros. Constr. Co. I, 768 F. Supp. 2d at 888 n.8.
74

Boh Bros. Constr. Co. III, 731 F.3d at 451.

Id.
76 Complaint at 79, Boh Bros. Constr. Co. I, 768 F. Supp. 2d 883 (No. 09-6460).
77 Boh Bros. Constr. Co. II, 689 F.3d 458, 460 (5th Cir. 2012). The jury awarded Woods a total
of $451,000, and the district court judge granted injunctive relief. Judgment of Injunctive Relief
at *1, Boh Bros. Constr. Co. I, 768 F. Supp. 2d 883 (No. 09-6460), 2011 WL 3648483, at *1. The
judge subsequently reduced the award amount to comply with the statutory damages cap.
Boh Bros. Constr. Co. III, 731 F.3d at 451.
75

78

Boh Bros. Constr. Co. II, 689 F.3d at 46263. ([I]t is a circular truth that a plaintiff may not

GIBBS_COMMENT_11_FINAL (DO NOT DELETE)

2014

Beyond Sexual Desire

1/6/2015 1:06 PM

815

en banc review.79
C. Fifth Circuits Holding and Reasoning
The Fifth Circuit concluded that the evidence was sufficient for a jury
to find Woods was sexually harassed because of his sex and the harassment
was severe and pervasive.80 The Courts reasoning was guided by the Price
Waterhouse and Oncale holdings.81 The Court proclaimed that it considered
Oncales three pathways as illustrative, not exhaustive because the
phrases for example and [w]hatever evidentiary route the plaintiff
chooses to follow accompanied the pathways.82 Further, the Court ruled
that sex-stereotyping evidence is admissible to prove sexual harassment. 83
Based on the lower courts clear jury instruction, Wolfes testimony, and its
own prior precedent, the Court found Wolfes harassment severe and
pervasive.84

ANALYSIS
III. The Fifth Circuit Weakened Same-Sex Sexual Harassment
Jurisprudence by Failing to Analyze Boh in Light of Recent Case Law
and Erroneously Focusing on Admissible Evidence
Prior to Boh, the Fifth Circuit never ruled on the Oncale evidentiary
paths in proving same-sex sexual harassment.85 This likely stemmed from

recover based on nonconformance to gender stereotypes unless the plaintiff conforms to

nonconformance gender stereotypes.). The Court reasoned that Woodss use of Wet Ones
was not enough of a nonconformity from the masculine stereotype to find sexual harassment.
Id.
79

Boh Bros. Constr. Co. III, 731 F.3d at 451.

Id. at 456, 462. The Court also upheld the jurys rejection of Boh Brothers Ellerth/Faragher
affirmative defense that its anti-discrimination policy negated liability because the company
did not adopt practices to execute its policy. Id. at 46566.
80

81

See id. at 45356 (noting that both Price Waterhouse and Oncale recognize support for
same-sex sexual discrimination claimsthough the claiming party must prove actual
workplace discrimination).
82 Id. See generally Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 8081 (1998)
(providing further insight into the primary jurisprudence that the Boh Bros. Court relied
upon).
83

Boh Bros. Constr. Co. III, 731 F.3d at 45657.

Id. at 46062 (citing Walker v. Thompson, 214 F.3d 615, 626 (5th Cir. 2000); FarpellaCrosby v. Horizon Health Care, 97 F.3d 803, 806 (5th Cir. 1996)).
85 Compare Boh Bros. Constr. Co. II, 689 F.3d 458, 461 (5th Cir. 2012) (Our court has not
before been presented with the question whether Oncales enumerating the above three forms
of same-sex harassment excludes other possible forms, such as the alleged sex stereotyping,
84

GIBBS_COMMENT_11_FINAL (DO NOT DELETE)

816

New England Law Review

1/6/2015 1:06 PM

v. 48 | 805

the fact that the Supreme Court never directly applied Price Waterhouse
when establishing the Oncale evidentiary paths.86 However, in Boh, the
Fifth Circuit primarily relied on analogizing Boh to Price Waterhouses
holding without looking to more recent applicable case lawboth
supporting and opposing its holdingthat considers sex-stereotyping
evidence in the context of same-sex sexual harassment.87 In fact, the Fifth
Circuit irresponsibly disregards such precedent. 88
Moreover, the Fifth Circuit focused on the treatment of same-sex
sexual harassment evidence while failing to consider the same-sex sexual
harassment conduct, further devaluing this form of harassment. 89
A. The Fifth Circuit Improperly Analogized Boh to Price Waterhouse
When More Applicable and Persuasive Sex-Stereotyping Precedent
Exists Both for and Against the Fifth Circuits Holding and Ruling
The Fifth Circuit relied too heavily on Price Waterhouse90 and ruled
without directly considering how other circuits treat sex stereotyping. 91 The
similarly situated Ninth Circuit case, Nichols v. Aztec Restaurant Enterprises,
Inc. (Nichols), also used Price Waterhouse to direct its holding but did so
based on its supporting principles: whether the employer perceived a
deviation from the plaintiffs stereotype and that employers
corresponding discriminatory actions were closely tied to gender.92
Additionally, the Fifth Circuit could have distinguished Boh from the Sixth
Circuits holding in Wasek v. Arrow Energy Services, Inc. (Wasek) that

which is at issue in this appeal.), with Boh Bros. Constr. Co. III, 731 F.3d at 45556 (noting that
Oncale provides an illustrative rather than exclusive list).
86 Fedor, supra note 43, at 456 ([I]t is debatable whether Price Waterhouse applies in the
same-sex context.); see Clare Diefenbach, Same-Sex Sexual Harassment After Oncale: Meeting
the "Because of . . . Sex" Requirement, 22 BERKELEY J. GENDER L. & JUST. 42, 47 & n.45 (2007)
(recognizing the disturbing omission of Price Waterhouse from the Oncale opinion). But see
Employment LawTitle VIIFifth Circuit Holds Evidence of Sex Stereotyping Insufficient in SameSex Harassment ActionEEOC v. Boh Bros. Construction Co., 689 F.3d 458 (5th Cir. 2012), 126
HARV. L. REV. 1699, 1704 (2013) (quoting Fedor, supra note 43, at 480) (Importantly, Oncale
[gave no] indication that the Court had turned its back on Price Waterhouse.).
87 See Boh Bros. Constr. Co. III, 731 F.3d at 476; infra Part III.AB.
88 See infra Part III.A.
89 See infra Part III.B.IV.
90 Boh Bros. Constr. Co. III, 731 F.3d at 45354.
91 See, e.g., Nichols v. Azteca Rest. Enters., 256 F.3d 864, 874 (9th Cir. 2001) (holding that the
male employer subjected his male employee to sexual harassment based on that employees
deviation from the masculine stereotype).
92

See Nichols, 256 F.3d at 874.

GIBBS_COMMENT_11_FINAL (DO NOT DELETE)

2014

Beyond Sexual Desire

1/6/2015 1:06 PM

817

same-sex sexual harassment did not occur.93 While Price Waterhouse was the
first to consider sex stereotyping as sexual harassment,94 the factual
similarities between Nichols and Boh, as well as those distinguishing Boh
from Wasek, show the Fifth Circuits missed opportunity to utilize the
Ninth Circuits position in adopting Price Waterhouses supporting
principles and distinguish the Sixth Circuits narrow approach to
methodically dissecting the Oncale pathways.95
1.

Boh Failed to Utilize the Ninth Circuits Nichols Decision

Focusing on the Closeness of the Harassment to Gender

Nichols and Boh contain the following factual similarities: (1) both
plaintiffs employers subjected them to frequent name-calling of an
explicitly sexual nature;96 (2) both plaintiffs complained about such conduct
to management with little change to their treatment; and (3) both plaintiffs
and employees were male.97 Despite these parallels, the Fifth Circuit
merely mentioned Nichols in a footnote and then distinguished the case,
which diminishes the importance of the similar rulings.98 It failed to equate
Nichols and Boh factually and thereby analytically: the Ninth Circuit
tailored its sex-stereotyping analysis to how the employer perceived the
employees deviation from the male stereotype and whether such
harassment paralleled gender-based abuse.99 In Boh, evidence of the
employers perception first arose before the District Court, which
93

See infra Part III.A.2.

See, e.g., Ellen Simon, Could This Be News? Employee Fired Because She Was Too Old and Too
Expensive Has Right to Age Discrimination Trial, TODAYS WORKPLACE (Mar. 17, 2010),
http://www.todaysworkplace.org/2010/03/17/could-this-be-news-employee-fired-because-shewas-too-old-and-too-expensive-has-right-to-age-discrimination-trial/.
95 See infra Part III.A.12.
96 In Nichols, the plaintiffs male employer and male co-workers called the plaintiff faggot
and fucking female whore frequently. 256 F.3d at 870. Woodss employer subjected him to
similar names and even sexually overt actions on a regular basis. Boh Bros. Constr. Co. III, 731
F.3d at 44950; see also supra text accompanying notes 6367.
97 Nichols, 256 F.3d at 87071. See generally Ann C. McGinley, Creating Masculine Identities:
Bullying and Harassment Because of Sex, 79 U. COLO. L. REV. 1151, 122022 (2008) (noting that
same-sex sexual harassment cases following Oncale have had many elements in common,
including that the plaintiffs were male and suffered taunting for not conforming to gender
stereotypes). The plaintiff in Nichols complained about the name-calling with little response
from human resources. Nichols, 256 F.3d at 87071. Woods also complained to his crew
foreman about the harassment with no change until Duckworth removed him from the
worksite. Boh Bros. Constr. Co. II, 689 F.3d 458, 46062 (5th Cir. 2012).
94

98

Boh Bros. Constr. Co. III, 731 F.3d at 457 n.12.

Nichols, 256 F.3d at 87475 ([The Price Waterhouse] rule squarely applies to preclude the
harassment here . . . [because] this verbal abuse was closely linked to gender.).
99

GIBBS_COMMENT_11_FINAL (DO NOT DELETE)

818

New England Law Review

1/6/2015 1:06 PM

v. 48 | 805

commented on Wolfes testimony concerning Woodss behavior of using

Wet Ones in the restroom as feminine.100 At first, the Fifth Circuit opined
that Wolfe did not perceive Woods as feminine101 but returned to this
testimony in its second opinion to justify its finding that Wolfe sexually
harassed Woods.102
The Fifth Circuit should have held that Wolfe sexually harassed Woods
based on his deviation from the male stereotype in light of the Nichols
approach of identifying the closeness of the harassment to gender.103
Instead, the Fifth Circuits holding as to the occurrence of sexual
harassmentnot its severity or pervasivenessfocused on Wolfes
testimony and the quantity of the evidence; in fact, the Court disregarded
the validity of Nicholss application to the facts at hand: importantly, the
evidence presented in this case does not depend on the[] insults [the
plaintiff endured] alone . . . Wolfe engaged in several physical acts of
[sexual harassment].104
Even though the Fifth Circuit implies that same-sex sexual harassment
is more prevalent in Boh as compared to Nichols, this conclusion minimizes
the importance of adhering to Congresss intent to prohibit all employment
discrimination regardless of its inability to foresee same-sex sexual
harassment when Title VII became law.105 This quantitative approach to
evidencecomparing verbal and physical sexual abuse and harassment
is measured primarily on the alleged harassers subjective view of the
victim.106 This is especially critical to understanding same-sex sexual
harassment when many sources and scholars do not distinguish between
verbal and physical evidence of such harassment. 107 Therefore, Boh
contributes to precedent that undermines the victim of sexual harassment
as well as strong employment-discrimination jurisprudence developed
since Title VIIs enactment.108
2.

Boh Failed to Utilize the Sixth Circuits Wasek Based on a

100

Boh Bros. Constr. Co. I, 768 F. Supp. 2d 883, 887 (E.D. La. 2011), vacated, 689 F.3d 458 (5th
Cir. 2012).
101 Boh Bros. Constr. Co. II, 689 F.3d at 462 (Wolfe testified that he did not view Woods as
feminine . . . .).
102

Boh Bros. Constr. Co. III, 731 F.3d at 45758, 461.

Compare id. at 45660 (focusing on the amount of evidence), with Nichols, 256 F.3d at 874
(focusing on the harassments relationship to gender).
103

104

See Boh Bros. Constr. Co. III, 731 F.3d at 45659, 457 n.12.
See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998).
106 See Boh Bros. Constr. Co. III, 731 F.3d at 45657 & n.11.
107 See, e.g., 29 C.F.R. 1604.11 (2013).
108 See supra Part I.B.
105

GIBBS_COMMENT_11_FINAL (DO NOT DELETE)

2014

Beyond Sexual Desire

1/6/2015 1:06 PM

819

Procedural Technicality
As compared to the lack of physical acts of sexual harassment in
Nichols, the Wasek facts consist of physical harassment of a homosexual
nature between males where the plaintiffs harasser touched the plaintiff
by grabbing his buttocks, poking him in the rear with a hammer handle,
and poking him in the rear with a long sucker rod.109 These physical
interactions resemble those that Woods endured from Wolfe, particularly
those referencing homosexual activity, for example: when Wolfe simulated
anal sex when Woods bent over, when Wolfe appeared to unzip his pants
outside Woodss car while he was napping, and when Wolfe told him, [i]f
your door wouldnt have been locked, my dick probably would have been
in your mouth.110
While both fact patterns consisted of physical expressions of same-sex
sexual harassment by the plaintiffs employers on numerous occasions,111
the majority relegated Wasek to two sentences within a footnote then
quickly disregarded its applicability to Boh.112 Wasek then only appeared as
a citation in Circuit Judge Joness dissenting opinion.113 The Boh majority
found Wasek not controlling based merely on a procedural technicality: the
2006 Sixth Circuit case Vickers v. Fairfield Medical Center114 controlled
because the Sixth Circuit adheres to the rule of orderliness.115 This rule
prohibits a three-judge panel from overruling another panels decision.116
Furthermore, while Wasek procedurally failed to control in Boh, the
doctrine of stare decisis only binds a court to prior decisions within its
109

Wasek v. Arrow Energy Servs., Inc., 682 F.3d 463, 465 (6th Cir. 2012).
Boh Bros. Constr. Co. III, 731 F.3d at 450.
111 Compare Wasek, 682 F.3d at 465 (identifying both the plaintiff and his harasser as male
and noting the fact that the harassment occurred more than once based on his numerous
complaints), with Boh Bros. Constr. Co. III, 731 F.3d at 459 (recognizing that Wolfe engaged in
hump[ing] Woods from behind two to three times a week, accumulating to approximately
sixty instances of such behavior).
110

112

Boh Bros. Constr. Co. III, 731 F.3d at 455 n.6.

Id. at 478 (Jones, J., dissenting). Circuit Judge Jones was joined by Judges Jolly, Smith,
DeMoss, Clement, and Owens. Id. at 475.
113

114 453 F.3d 757 (6th Cir. 2006) (holding that the plaintiff, a police officer, did not have a
claim for Title VII sexual harassment under the theory of sex stereotyping).
115 Boh Bros. Constr. Co. III, 731 F.3d at 455 n.6.
116 See 6TH CIR. R. 32.1(b) (replacing the former rule6TH CIR. R. 206(c)which appears in
the Boh Bros. Constr. Co. III opinion); Salmi v. Secy of Health & Human Servs., 774 F.2d 685,
689 (6th Cir. 1985); see also Steve Delchin, Sixth Circuit Declines to Adopt Rule Followed in at Least
10 Other Circuits Under the ADA, SIXTH CIRCUIT APP. BLOG (Mar. 18, 2011),
http://www.sixthcircuitappellateblog.com/recent-cases/sixth-circuit-declines-to-adopt-rulefollowed-in-at-least-10-other-circuits-under-the-ada/.

GIBBS_COMMENT_11_FINAL (DO NOT DELETE)

820

New England Law Review

1/6/2015 1:06 PM

v. 48 | 805

jurisdiction.117 Therefore, nothing prohibited the Fifth Circuit from treating

Wasek as persuasive authority and utilizing its facts to distinguish Boh and
strengthen the expanding view of the Oncale pathways as informative.118
Granted, the Fifth Circuit did identify one factual difference: Wasek
only expressly considered the first Oncale pathway, which it identified as
the only pathway that applied to the facts.119 However, the Court found
that same-sex sexual harassment did not occur because the evidence did
not fall within one of Oncales three expressly identified pathways.120 The
Sixth Circuit conducted a thorough and comprehensive analysis of the
evidence in light of Oncale by addressing each pathway separately.121 It
determined that the facts only fit within the first evidentiary path since the
workplace consisted solely of males (eliminating the third path of
providing comparative evidence), and no evidence suggested that general
hostilities expressed towards men motivated the employers behavior,
eliminating the second Oncale pathway.122 Then the Sixth Circuit ruled out
the first Oncale pathway in Wasek123 and struck down the plaintiffs hostile
work environment claim in its entirety via the courts step-by-step,
exhaustive Oncale analysis. The court did not look elsewhere to justify its
method or holding, which demonstrates the Sixth Circuits exclusive
approach to the Oncale pathways.124 Instead, the Fifth Circuit explained the
Oncale pathways, identified Boh Brotherss argument that the pathways
should be considered inclusive, and pronounced that the Supreme Court
intended to consider the prongs as illustrative, not exhaustive, in
nature.125 The Court should have applied Waseks methodological
approach of dissecting the prongsregardless of the Sixth Circuits end
result and despite the Fifth Circuits interpretation of Waseks reasoning
and holdingto strengthen the Boh decision and illuminate the conflicting
circuit interpretations of the Oncale pathways.126
117 See, e.g., 20 AM. JUR. 2D Courts 137 (2005); ZENA D. CRENSHAW-LOGAL, EXPLORING THE
VITALITY OF STARE DECISIS IN AMERICA 910 (2012); G. F. Peter Mason, Stare Decisis in the Court
of Appeal, 19 MOD. L. REV. 136, 13942 (1956).
118 See supra text accompanying notes 11416.
119 Boh Bros. Constr. Co. III, 731 F.3d at 455 n.6.
120 Wasek v. Arrow Energy Servs. Inc., 682 F.3d 463, 46768 (6th Cir. 2012).
121 Id.
122 Id. at 468.
123 Id. The plaintiffs speculation that his harasser was a little strange, possibly bisexual
did not constitute credible evidence under Oncale to find in favor of the plaintiff. Id.
124

Id.
Boh Bros. Constr. Co. III, 731 F.3d 449, 455 & n.6 (5th Cir. 2013).
126 Compare Wasek, 682 F.3d at 46768 (identifying how facts presented could not satisfy any
of the three Oncale pathways), with Boh Bros. Constr. Co. III, 731 F.3d at 455 n.6 (discussing how
125

GIBBS_COMMENT_11_FINAL (DO NOT DELETE)

2014

Beyond Sexual Desire

1/6/2015 1:06 PM

821

B. The Fifth Circuit Further Diminishes its Own Holding in Boh by

Deflecting the Issue to the Admission of Same-Sex Sexual
Harassment Evidence Over the Act of Same-Sex Sexual Harassment
Itself
Since the Supreme Courts decision in Oncale, circuit courts have
disagreed over whether to construe the Oncale evidentiary prongs as
inclusive or exclusive.127 Although the Fifth Circuit did not explicitly hold
on either side of this circuit split when it first decided Boh,128 it did the
second time.129 Based on the text accompanying the Supreme Courts
evidentiary pathways, the Fifth Circuit perceived them to be illustrative,
not exhaustive.130 The Fifth Circuit set the foundation for its opinion by
framing Price Waterhouse and Oncale.131 On one hand, the Court focused on
how the Supreme Court utilized the principles driving Title VII in Price
Waterhouse, and then concluded its explanation by recognizing that gender
can certainly be evidence that gender played a part [in the alleged
harassment].132 On the other hand, Oncale frames three evidentiary
pathways to prove same-sex sexual harassment while identifying the
driving forces of Title VII against all employment discrimination: while
male-on-male sexual harassment . . . was assuredly not the principle evil
Congress was concerned with when [enacting] Title VII, the court coined
such harassment as a reasonably comparable evil . . . .133
The Fifth Circuit, having framed its decision with the public policies
that drove Title VIIs enactment, failed to make its own public policy
statement as to the principles and purpose of expanding the definition of
sex under Title VII.134 Instead, the Court deflected this issue in a number
of ways, the first of which included using such phrases as we look to
evidence of the harassers subjective view of the victim and whether
evidence is sufficient to support the EEOCs Title VII claim.135 Further,
the Court focused on the jurys capacity to conclude that same-sex sexual

the Sixth Circuit approach to Oncale follows Vickers not Wasek), and supra notes 5152 and
accompanying text (describing the circuit split on whether Oncales pathways are inclusive or
exclusive).
127

See supra notes 5152 and accompanying text.

See Boh Bros. Constr. Co. II, 689 F.3d 458, 463 (5th Cir. 2012).
129 Boh Bros. Constr. Co. III, 731 F.3d at 45556.
130 Id.
131 Id. at 45356.
132 Id. at 454 (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989)).
133 Id. at 45456 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998)).
134 Contra id. at 46062.
135 Boh Bros. Constr. Co. III, 731 F.3d at 457, 46062.
128

GIBBS_COMMENT_11_FINAL (DO NOT DELETE)

822

New England Law Review

1/6/2015 1:06 PM

v. 48 | 805

harassment occurred by citing large portions of Wolfes testimony at the

trial level and questioning the jury instructions.136 This dual focus on actual
testimony and the jurys interpretive framework reflects an evidencedriven treatment of same-sex sexual harassment, which directs the matter
away from whether same-sex sexual harassment falls within the definition
of sex under Title VII.137
This is not the first time a court has skirted an issue by framing it in a
different light: there was a time when the Supreme Court decided
abortion cases in terms of family privacy, government responsibility for
public funding, and the clarity and enforceability of state laws.138
Abortion, a topic immersed in religious arguments and beliefs, necessitates
theological and scientific discussions about when life begins.139
The Supreme Court recently avoided the religious aspect surrounding
abortion jurisprudence.140 In Ayotte v. Planned Parenthood of Northern New
England, the Court ruled on a remedial aspect of New Hampshires
Paternal Notification Prior to Abortion Act as opposed to deciding whether
doctors should be prohibited from performing abortions on minors until
the minors parent or guardian received notice within forty-eight hours of
the procedure.141 Framing the issue as one of statutory remedy rather than
abortion, the Court stated: We do not revisit our abortion precedents
today, but rather address a question of remedy . . . . We hold that
invalidating the statute entirely is not always necessary or justified, for
lower courts may be able to render narrower declaratory and injunctive
relief.142 This decision broke little new ground and, instead, likely
postponed the real issue of abortion for a later case. 143 However, it does not
change the fact that the Court redirected the legal issue of abortion to a
matter of remedy, as the Fifth Circuit did with rendering same-sex sexual
harassment a matter of evidence rather than express the legal status of such
discrimination.144
136

Id. at 45760.
See id.
138 Curtis J. Sitomer, Supreme Court: Avoiding a Holy War over the Abortion Issue, CHRISTIAN
SCI. MONITOR (Mar. 28, 1985), http://www.csmonitor.com/1985/0328/dcurt28.html.
137

139

See id. (It would probably be impossible for the courts to decide definitively such issues
as when human life begins without becoming immersed in a theological debate . . . .).
140 See Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 32324 (2006).
141 Id.
142 Id.
143 Nathaniel Law, Abortion: Supreme Court Avoids Disturbing Abortion Precedents by Ruling
on Grounds of RemedyAyotte v. Planned Parenthood of Northern New England, 34 J.L. MED.
& ETHICS 469, 471 (2006) (internal citation omitted).
144

Compare Ayotte, 546 U.S. at 323 (addressing the question of remedy instead of abortion),

GIBBS_COMMENT_11_FINAL (DO NOT DELETE)

2014

Beyond Sexual Desire

1/6/2015 1:06 PM

823

In spite of the Fifth Circuits reasoning, the Courts final Boh holding
positively affects same-sex plaintiffs in this area of the law by admitting
evidence of same-sex sexual harassment into court, especially in light of the
growing need for the judicial system to protect males from sexual
harassment.145 Interpreting Oncale as inclusive provides male complainants
alleging same-sex sexual harassment via sex stereotyping with a valid Title
VII claim.146 Men have demonstrated the need for this expansive view of
Oncale through the rapid growth in male complainants filing sexual
harassment claims against their employers.147 In fact, men represented
17.8% of all filed sexual harassment claims in 2012, which represents a 1.7%
increase compared to those filed in 2011.148 Furthermore, an inclusive
approach to Oncale would mean that judges could not legally make the
following two common mistakes that result in the dismissal of valid sexstereotyping cases: (1) conflating sex stereotyping with sexual orientation,
which is not presently protected under Title VII, 149 and (2) conceiving sex
stereotyping as mere horseplay among co-workers of the same sex.150
with Boh Bros. Constr. Co. III, 731 F.3d 449, 46062 (5th Cir. 2013) (addressing same-sex
discrimination as a matter of evidence).
145

See Deborah Zalesne, When Men Harass Men: Is It Sexual Harassment?, 7 TEMP. POL. &
CIV. RTS. L. REV. 395, 416 (1998).
146 See id. at 408 (When a man is harassed for failing [to conform to the male stereotype]
that man is being harassed because of sex stereotypes. . . . [T]hat man should have a cause of
action under Title VII.).
147 See, e.g., BEINER, supra note 28, at 133 (explaining how studies indicate that men are
more likely to be harassed by other men than women); Rosemary Black, Male on Male Sexual
Harassment at Workplace Is on the Rise: Report, N.Y. DAILY NEWS (Jan. 18, 2010, 11:16 AM),
http://www.nydailynews.com/life-style/male-male-sexual-harassment-workplace-rise-reportarticle-1.458874; Mary Swanton, Male-On-Male Sexual Harassment Claims Becoming More
Common, INSIDECOUNSEL MAGAZINE (May 1, 2010), http://www.insidecounsel.com/2010/05/01/
maleonmale-sexual-harassment-claims.
148 See Ingrid Fredeen, EEOC Releases 2012 Data on Employment Discrimination Charges,
NAVEX GLOBAL (Feb. 7, 2013), http://www.navexglobal.com/blog/2013/02/07/eeoc-releasescharge-stats-fy-2012. Liability for charges of sexual harassment is one of the [t]hree
dominating risks for employers to focus on moving forward. Id.
149 Compare Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000) (holding that Title VII does
not prohibit discrimination based on sexual orientation), with Zalesne, supra note 145, at 408
(discussing how most courts conflate discrimination based on sex stereotyping with
discrimination based on sexual orientation, which is not prohibited by Title VII). See generally
Jeremy S. Barber, Comment, Re-Orienting Sexual Harassment: Why Federal Legislation Is Needed
to Cure Same-Sex Sexual Harassment Law, 52 AM. U. L. REV. 493, 494501 (2002) (discussing how
Title VII does not prohibit discrimination based on sexual orientation).
150 BEINER, supra note 28, at 104; see Hilary S. Axam & Deborah Zalesne, Simulated Sodomy
and Other Forms of Heterosexual Horseplay: Same Sex Sexual Harassment, Workplace Gender
Hierarchies, and the Myth of the Gender Monolith Before and After Oncale, 11 YALE J.L. & FEMINISM

GIBBS_COMMENT_11_FINAL (DO NOT DELETE)

824

New England Law Review

1/6/2015 1:06 PM

v. 48 | 805

The Fifth Circuit, albeit not deliberately, followed the Ninth Circuits
expansive analytical approach and thus positively impacted same-sex
sexual harassment plaintiffs by impliedly holding that Oncale does not
restrict how a plaintiff pleads a same-sex sexual harassment claim, so long
as the harassment occurred because of sex.151
IV. The Fifth Circuits Holding Ultimately Avoids Expanding the
Definition of Sex Under Title VII to Include Same-Sex Sexual
Harassment, Thus Contradicting Title VII Principles
The fundamental purpose of Title VII remains the same today as it did
almost fifty years ago152: to attain equality of employment
opportunities153 amongst employees of race, color, religion, sex, or
national origin,154 and to equalize the norms of workplace conduct for all
employees155 through courts broadly interpreting the statute. 156 The Fifth
Circuits holding in Boh, while advancing same-sex sexual harassment
jurisprudence, contradicts Title VIIs goal of eliminating all employment
discrimination, more specifically sexual harassment. 157 The Court failed to
adequately justify its decision in the context of its sister circuits or focus on
the issue itself rather than phrasing its holding in terms of the evidence to
prove such same-sex sexual harassment claims.158 Congress intended the
courts to interpret and define Title VII broadly,159 as provided by the plain
language of the Act and its legislative history.160 This broad and expansive
approach to interpreting Title VII primarily concerns defining sex.161 As a
result, the Fifth Circuits restricted reasoning and focus in Boh on the
evidentiary issues surrounding same-sex stereotypingwhile on the one
155, 160 (1999); McGinley, supra note 97, at 122730.
151 See Fedor, supra note 43, at 47678; Oncale v. Sundowners Offshore Servs., Inc., 523 U.S.
75, 80 (1998).
152

See 110 CONG. REC. 2577, 2584 (1964).

Griggs v. Duke Power Co., 401 U.S. 424, 429 (1971).
154 42 U.S.C. 2000e-2(a)(1) (2012); McFarland, supra note 18, at 49798.
155 Richard F. Storrow, Same-Sex Sexual Harassment Claims After Oncale: Defining the
Boundaries of Actionable Conduct, 47 AM. U. L. REV. 677, 716 (1998).
153

156

Zalesne, supra note 145, at 41011.

See Boh Bros. Constr. Co. II, 689 F.3d 458, 46263 (5th Cir. 2012).
158 Id.
159 See Quick v. Donaldson Co., 90 F.3d 1372, 1377 (8th Cir. 1996); Williams v. Saxbe, 413 F.
Supp. 654, 658 (D.D.C. 1976) (contending that Congress did not seek to limit the scope and
effect of Title VII); cf. Meritor Sav. Bank, FSB. v. Vinson, 477 U.S. 57, 64 (1986) (holding that the
language of Title VII should not be limited to economic or tangible discrimination).
157

160
161

See McFarland, supra note 18, at 498.

See Zalesne, supra note 145, at 411.

GIBBS_COMMENT_11_FINAL (DO NOT DELETE)

2014

Beyond Sexual Desire

1/6/2015 1:06 PM

825

hand aiding the fight for an expansive view of Title VII sexis
inappropriate and greatly hinders the principle of interpreting Title VII
broadly by not expressly ruling on the issue that faced the Court twice. 162
Defining sex to encompass same-sex sexual harassment plays a large
role in interpreting Title VII broadly.163 A number of courts conflict over
whether to define sex in terms of biology164 (an inherently restrictive
approach) or gender165 (a much more expansive approach).166 The
biological approach to defining sex negatively affects same-sex sexual
harassment jurisprudence in the following ways: (1) courts ignore the
complex behavioral aspects of sexual identity;167 (2) courts rule on sexual
harassment cases based on whether plaintiffs experienced such harassment
because of their anatomy;168 and (3) courts reinforce the cultural conception
that masculinity reliably depicts maleness, and femininity reliably conveys
femaleness.169 On the other hand, the gender-based approach to defining
sex allows courts to consider: sexual activity, sexual behavior, sexual
anatomy, sexual identity, gender stereotypes, or any other issues relating to
sex and gender. . . .170
The first time the Fifth Circuit heard Boh, it strictly defined sex
stereotyping based on an alleged victim conforming to a nonconformative
gender stereotype.171 This definition mirrors the biological approach to
defining sex stereotyping because the adherence to a nonconforming
stereotype indicates a strict line between male and female without
recognizing the myriad complexities within sexual identity.172 It reinforces
the concept that maleness exhibits masculinity and femaleness exhibits
femininity.173 However, the second time the Fifth Circuit ruled on Boh, the
162 See Boh Bros. Constr. Co. III, 731 F.3d 449, 46062 (5th Cir. 2013); Boh Bros. Constr. Co. II,
689 F.3d at 462; see also supra Part III.B.
163

See Zalesne, supra note 145, at 411.

The biological view only recognizes the biological or anatomical distinctions between
individuals . . . [a]nd nothing else. Fedor, supra note 43, at 46061.
164

165

The gender-based approach includes personality attributes, socio-sexual roles,

character traits, and behavioral expressions such as masculinity and femininity. Id. at 461.
166 Id.
167 See Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation
of Sex from Gender, 144 U. PA. L. REV. 1, 5 (1995).
168

Id. at 3132.
Id. at 41.
170 Zalesne, supra note 145, at 411 (emphasis added).
171 See id.; Boh Bros. Const. Co. II, 689 F.3d 458, 462 (5th Cir. 2012) ([It is a] circular truth that
a plaintiff [must conform] to nonconformance gender stereotypes [in order to recover].).
169

172
173

Compare Zalesne, supra note 145, at 40011, with Franke, supra note 167.
Compare Boh Bros. Constr. Co. II, 689 F.3d at 462 (holding that there was insufficient

GIBBS_COMMENT_11_FINAL (DO NOT DELETE)

826

New England Law Review

1/6/2015 1:06 PM

v. 48 | 805

Court expanded its perspective of sex from defining biologically to a much

broader definition including gender identity through evidence presented to
prove a same-sex sexual harassment case.174 The Fifth Circuits limited,
narrow approach to defining same-sex sex stereotyping in terms of
admissible evidence not only counters the Courts intent to interpret sexual
harassment broadly, but also diminishes the purpose of Title VII entirely.175

CONCLUSION
The Fifth Circuit found the evidence in Boh sufficient to find that Wolfe
sexually harassed Woods, but in doing so decided to narrow its holding to
the context of admissible evidence to prove such a claim. Therefore, the
Court failed to make a proclamation as to whether Title VII expressly
encompasses, and thus prohibits, same-sex sexual harassment. The Fifth
Circuit chose not to acknowledge or consider Sixth and Second Circuit
precedent that would have allowed the Court to analogize and distinguish
the facts, but instead chose to rely upon procedural technicalities. Such an
analysis would have bolstered the opinion and widened the split between
the Circuit Courts as to the issue of same-sex sexual harassmenta split
only the Supreme Court can address.
Further, relegating the issue to a matter of evidence inadvertently
diminishes the importance and complexity of the issues surrounding not
only same-sex sexual harassment, but also sex under Title VII in terms of
gender identity. This mirrors the Supreme Courts recent avoidance of the
complex religious issues surrounding abortion. This missed opportunity,
while still supporting the existence and validity of same-sex sexual
harassment claims, diminishes the fact that Woods went to work feeling
vulnerable, targeted, and afraid; this issue should not be ignored simply
because Woods was a male harassed by Wolfe, another male.
There exists a clear need for courts to provide adequate judicial
protections for men involved in same-sex sexual harassment cases.

evidence to support a sex-stereotyping theory of same-sex harassment where the plaintiff was
not shown to be in noncomformance with gender stereotypes), with Franke, supra note 167, at
41 (stating that case law "reinforces the fiction that masculinity is a reliable sign of maleness
and femininity is a reliable sign of femaleness").
174 Compare Boh Bros. Constr. Co. III, 731 F.3d 449, 46062 (5th Cir. 2013) (finding that there
was sufficient evidence to prove severe or pervasive same-sex sexual harassment), with Boh
Bros. Constr. Co. II, 689 F.3d at 462 (holding there was insufficient evidence to show that the
plaintiff failed to conform to traditional gender stereotypes), and supra text accompanying
notes 16971 (describing the Fifth Circuits shift from a biology centered approach to defining
sex to a broader, gender based definition).
175

See supra text accompanying notes 15254.

GIBBS_COMMENT_11_FINAL (DO NOT DELETE)

2014

Beyond Sexual Desire

1/6/2015 1:06 PM

827

Unfortunately, the Boh holding falls short of providing such necessary

protections by defying the principles that drive Title VII: [e]very time
courts deny an employee a cause of action for same-sex hostile work
environment, they are giving employers the green light to sexually harass
men who violate gender stereotypes.176

176

Supra Zalesne, note 145.