Boh Brothers Construction: the Latest on Same-Sex Harassment

When people think about sexual harassment, they usually envision a male co-worker or supervisor targeting a female employee. Most people know that this scenario can be reversed, with a female harasser and a male victim.

But what about same-sex harassment?

Same-sex harassment is equally unlawful, and this may come as a surprise to unwary employers. A recent example is the case of Boh Brothers Construction, LLC v. Equal Employment Opportunity Commission (EEOC), which was decided by the Fifth Circuit Court of Appeals on September 27, 2013.

This case involved a five-man work crew. The crew superintendent, Wolfe, apparently thought that one of the crew members, Woods, didn't fit in and wasn't manly enough.

According to testimony in the case, Wolfe routinely called Woods names like “princess” and “pussy”, pretended to hump him, and engaged in other abuse. Wolfe testified that he did not think Woods was homosexual (he was not), and was just joking and giving him a hard time.

After Woods filed a discrimination charge with the EEOC, the EEOC filed suit against Boh Brothers Construction. This is an unusual step – the EEOC is a federal agency with limited resources, and it litigates only those cases deemed to be most important.

After a three day trial, the jury awarded Woods a verdict of $451,000. On appeal, the Fifth Circuit found Boh liable (except for punitive damages) and sent the case back to the trial court for a final award of damages and attorney's fees.

The Boh case offers several lessons:

1. Do not rely on the “boys will be boys” defense. Courts understand that a construction site will involve different language and behavior than, say, a bank lobby, but they will not excuse severe or pervasive abuse. And frankly, who wants an abusive workplace anyway?  Workplace harassment is not just a legal liability - it also leads to low productivity, bad morale and increased turnover.
    
2. Watch out for vague complaints.  The first two or three times that Woods complained to the area foreman, he didn’t tell the whole story. He said he didn’t like how Wolfe talked to him. Supervisors need to be trained to dig deeper when an employee complains, and to involve HR at an early stage.
    
3. Take harassment allegations seriously. Woods eventually complained to the general superintendent in much more detail. He described Wolfe's harassing comments and behavior, and also accused Wolfe of using company gas and shrimping on company time. The testimony showed that the superintendent "investigated" the harassment himself by talking to Wolfe and another crew member for ten minutes apiece, at which time he decided that the abuse was not "sexual." He never alerted HR or upper management. The superintendent took the alleged misuse of company resources much more seriously, and hired a private investigator to look into the matter. The company’s different treatment of these two accusations was basically indefensible.
    
4. Update and publicize your anti-harassment policies.  Boh had a generic non-discrimination policy, nothing more. In order to prevail in this kind of case, a company needs to have a well-publicized anti-harassment policy that makes it easy for employees to report workplace harassment.

Lawyers often joke that when it comes to court opinions, the important stuff is in the footnotes. In the Boh opinion, the best advice is in footnote 19:

“where an employer implements suitable institutional policies and educational programs regarding sexual harassment, an employee who fails to take advantage of those policies cannot recover.”

Stated differently, this means that if the employer has a good anti-harassment policy, regularly trains its employees (and keeps attendance records), and reacts appropriately to employee complaints, the employer wins. This simple recipe for success is well worth the investment.