IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-30770

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff - Appellee

v.

BOH BROTHERS CONSTRUCTION COMPANY, L.L.C.,

Defendant - Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

The Equal Employment Opportunity Commission (“EEOC”) brought this

Title VII case against Boh Brothers Construction Company (“Boh Brothers”) on

behalf of the alleged discriminatee, Kerry Woods, a male construction worker in

an all-male crew, who claimed that Boh Brothers’ crew superintendent, Charles

“Chuck” Wolfe, engaged in “same-sex” harassment against him by referring to

him in raw homophobic epithets and lewd gestures.

There is no claim or evidence that either Woods or Wolfe is homosexual or

effeminate. There is plenty of evidence that Wolfe is a world-class trash talker

and the master of vulgarity in an environment where these characteristics

abound. And there is Wolfe’s accusation that Woods was girlish because Woods

United States Court of Appeals

Fifth Circuit

F I L E D

July 27, 2012

Lyle W. Cayce

Clerk

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used “Wet Ones” when he went to the toilet. But that seems to be about all of

the non-manly characteristics of which Woods was accused. There is no

question, however, that Woods was the primary and constant victim of Wolfe’s

offensive abuse and harassment, much of it in the nature of sexual vulgarity. 

The jury was very sympathetic with Woods: It returned a substantial verdict of

actual and punitive damages against Boh Brothers, and the district court

granted injunctive relief. Boh Brothers now appeals.

We join the jury’s reaction to Wolfe’s language and abuse, but the evidence

does not establish a claim of unlawful same-sex discrimination in violation of

Title VII. It bears repeating that Title VII is not “a general civility code for the

American workplace.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,

80 (1998). Nor is it the business of the federal courts generally to clean up the

language and conduct of construction sites. The judgment of the district court

is therefore VACATED and the case is REMANDED for entry of judgment

dismissing the complaint.

I.

Kerry Woods began working as an ironworker for Boh Brothers in

November 2005. In January 2006, he was assigned to a maintenance crew for

the Twin Spans bridge between New Orleans and Slidell, which had been

repaired and returned to service after Hurricane Katrina.

By that April,Woods was being harassed regularly by crew superintendent

Chuck Wolfe. Wolfe would call Woods names such as “faggot” and “princess” and

would approach him from behind to simulate having sexual intercourse while

Woods was bent over to perform job duties. Wolfe allegedly exposed himself to

Woods numerous times. Woods complained more than once to the crew foreman

that he “didn’t like how [Wolfe] talked to me.” There is, however, no evidence

that either man was either homosexual or attracted to homosexuals.

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The other aspect of this case is apart from the harassment, at least as far

as the record evidence shows. An inspection contractor, Volkert Construction

Services (“Volkert”), oversaw Boh Brothers’ work on the bridge and approved its

employees’ time records. In November 2006, a Volkert inspector notified Wolfe

that Woods had requested to view the time sheet on which the maintenance crew

members’ hours were recorded. (There was conflicting testimony about whether

Woods sought to view his own time entry or others’. In any event, the inspector

believed the latter and notified Wolfe because requesting to view other

employees’ time entries was a terminable offense.) Wolfe, in turn, notified his

supervisor, Wayne Duckworth, adding that he “didn’t care for” Woods because

he was “different” and “didn’t fit in.” (This observation was not further

explained by Wolfe, but the jury heard that Woods was not a member of the

union, as were the other workmen, including Wolfe.) Duckworth instructed

Wolfe to have Woods meet him at the Boh Brothers Almonaster yard, which was

arranged.

During this meeting with Duckworth, Woods complained in detail about

Wolfe’s harassment. Duckworth sent Woods home for three days without pay

(whether as punishment for his time sheet request or to allow Duckworth time

to find him a new job assignment, the record is unclear), and when Woods

reported to work thereafter he did so at the Almonaster yard. Duckworth

subsequently investigated Woods’s allegations and determined that Wolfe’s

behavior, though unprofessional, did not constitute sexual harassment.

Woods initially filed an EEOC charge questionnaire in November 2006,

shortly after his removal from the Twin Spans maintenance crew, alleging he

had been “fired” from that job and, three days later, hired to work at a different

Boh Brothers location. In February 2007, Woods was laid off for lack of work. 

That March, he filed an EEOC charge of discrimination, alleging sexual

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harassment and, on the basis of his November 2006 removal from the

maintenance crew, retaliation.

In September 2009, the EEOC brought an enforcement action in district

court on behalf of Woods, claiming sexual harassment and retaliation under

Title VII. Following a three-day trial, the jury returned a verdict in favor of

Woods on the harassment claim and in favor of Boh Brothers on the retaliation

claim. The jury awarded Woods $200,000 in compensatory damages and

$250,000 in punitive damages, the former of which the court reduced to $50,000

in compliance with the statutory damages cap. 42 U.S.C. § 1981a(b)(3)(D). Boh

Brothers filed a renewed motion for judgment as a matter of law following entry

of judgment, which the court denied. Boh Brothers timely appealed. Only the

sexual harassment, or hostile work environment, claim is before us.

II.

We review de novo a denial of a motion for judgment as a matter of law. 

Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 486 (5th Cir. 2004). Such a

motion should be granted if “a reasonable jury would not have a legally sufficient

evidentiary basis to find for the [non-moving] party.” Fed. R. Civ. P. 50(a)(1).

Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment

practice for an employer . . . to discriminate against any individual with respect

to his compensation, terms, conditions, or privileges of employment, because of

such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e2(a)(1). Sexual harassment is a form of discriminatory treatment under Title

VII. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 63-67 (1979). We first must

determine whether Wolfe’s conduct constituted sex discrimination prohibited

under Title VII. If we conclude that it did, we then must decide whether that

conduct created a hostile work environment. La Day v. Catalyst Tech., Inc., 302

F.3d 474, 478 (5th Cir. 2002).

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The EEOC’s case depends on the proposition that sex stereotyping by a

member of the same sex can constitute sexual harassment under Title VII. Its

theory is that Wolfe harassed Woods because Woods did not, in Wolfe’s view,

conform to the male stereotype. Boh Brothers counters that same-sex

stereotyping, even assuming it was present here, cannot constitute sexual

harassment under Title VII because it is not one of the three evidentiary paths

established to show same-sex harassment by Oncale v. Sundowner Offshore

Services, Inc., 523 U.S. 75 (1998).

Oncale is the first Supreme Court case to address whether workplace

harassment violates Title VII when the harasser and the harassed employee are

of the same sex. The Court explained that the same inference drawn in most

male-female harassment situations–that proposals of sexual activity would not

have been made had the employee been of the same sex as the harasser–“would

be available to a plaintiff alleging same-sex harassment, if there were credible

evidence that the harasser was homosexual.” Id. at 80. The Court further

explained that “harassing conduct need not be motivated by sexual desire to

support an inference of discrimination on the basis of sex.” Id. A same-sex

harassment plaintiff might also show that “the harasser is motivated by general

hostility to the presence of [members of the same sex] in the workplace,” or “offer

direct comparative evidence about how the alleged harasser treated members of

both sexes in a mixed-sex workplace.” Id. at 80-81.

Our court has not before been presented the question whether Oncale’s

enumerating the above three forms of same-sex harassment excludes other

possible forms, such as the alleged sex stereotyping, which is at issue in this

appeal. Rather, our prior cases have involved only Oncale’s first form of samesex harassment, proposals of sexual activity. See Cherry v. Shaw Coastal, Inc.,

668 F.3d 182 (5th Cir. 2012); Love v. Motiva Enters. LLC, 349 F. App’x 900 (5th

Cir. 2009) (unpublished); Russell v. Univ. of Tex. of the Permian Basin, 234 F.

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App’x 195 (5th Cir. 2007) (unpublished); Noto v. Regions Bank, 84 F. App’x 399

(5th Cir. 2003) (unpublished); La Day, 302 F.3d 474 (5th Cir. 2002). And

although other circuits uniformly have allowed evidence of sex stereotyping in

considering discrimination claims under Title VII, there is at least some 1

resistance to allowing, in same-sex harassment suits, evidence that does not fall

within any Oncale category. Compare Wasek v. Arrow Energy Servs., Inc., ---

F.3d ---, 2012 WL 2330824, at *3-4 (6th Cir. June 20, 2012) (treating three

Oncale forms of same-sex harassment as exclusive), with Nichols v. Azteca Rest.

Enters., Inc., 256 F.3d 864, 874 (9th Cir. 2001) (allowing same-sex harassment

claim by man who was “discriminated against for acting too feminine”).

The sex stereotyping theory of liability has its roots in the landmark Title

VII case, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Ann Hopkins

alleged that she had been denied partnership in her accounting firm because

some of the partners felt, in words attributed to them, that she was “macho,”

needed “a course at charm school,” and should “walk more femininely, talk more

femininely, dress more femininely, wear make-up, have her hair styled, and

wear jewelry.” Id. at 235. In explaining how those words might evince

discrimination because of sex, a plurality of the Court stated that “an employer

who acts on the basis of a belief that a woman cannot be aggressive, or that she

must not be, has acted on the basis of gender.” Id. at 250.

The case before us today stands in sharp contrast to Price Waterhouse, in

which there was considerable evidence that the plaintiff did not conform to the

female stereotype. The only charge asserted by Wolfe that Woods was other

To be clear, even in the straightforward discrimination (as opposed to sexual 1

harassment) context, permissible and impermissible sex stereotyping are separated by degree.

An employer is not prohibited from requiring some degree of conformity with what is generally

expected in the context of the job. For example, an employer may require a certain conformity

of dress, and it is difficult to conceive that an employer would act unlawfully by prohibiting

men from wearing dresses, heels, lipstick, etc.

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than masculine to which the EEOC has pointed us is his use of “Wet Ones”

instead of toilet paper. Wolfe testified that he did not view Woods as feminine,

and there is no evidence except the “Wet Ones” that he did, and that does not

strike us as overtly feminine. The record further shows that, although Woods

may have been Wolfe’s primary target, he was by no means his only target. Nor

was Wolfe the sole offender. To the contrary, misogynistic and homophobic

epithets were bandied about routinely among crew members, and the recipients,

Woods not excepted, reciprocated with like vulgarity.

Assuming that the EEOC has asserted a viable theory of Title VII

discrimination in behalf of Woods, it is a circular truth that a plaintiff may not

recover based on nonconformance to gender stereotypes unless the plaintiff

conforms to nonconformance gender stereotypes. Accordingly, we hold thatthere

is insufficient evidence that Wolfe “acted on the basis of gender” in his treatment

of Woods. Price Waterhouse, 490 U.S. at 250. Because there is insufficient

evidence in this case to support the asserted sex stereotyping theory of same-sex

harassment asserted by the EEOC, we need not decide whether such a theory

is cognizable in this circuit. See Oncale, 523 U.S. at 81 (“Whatever evidentiary

route the plaintiff chooses to follow, he or she must always prove that the

conduct at issue was not merely tinged with offensive sexual connotations, but

actually constituted ‘discrimina[tion] . . . because of sex.’ ” (first emphasis

added)). And because we conclude that Wolfe’s conduct did not constitute

discrimination in violation of Title VII, we do not reach the question whether it

was sufficiently severe or pervasive to create a hostile work environment. See

La Day, 302 F.3d at 478.

III.

Title VII protects employees against workplace discrimination, not against

all forms of mistreatment. The EEOC alleges that Woods was unlawfully

harassed because he was not stereotypically masculine. Because the only

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evidence of non-stereotypically masculine behavior in the record is Woods’s use

of “Wet Ones,” we conclude that the evidence is insufficient to support the jury’s

verdict that Woods was discriminated against “because of . . . sex,” 42 U.S.C. §

2000e-2(a)(1), and its verdict in favor of Woods is reversed.

There is the question raised in this appeal whether sex stereotyping is a

cognizable form of same-sex harassment under Title VII. As the facts allow for

resolution on narrower grounds, we leave that question for another day. The

evidence was insufficient to support the jury’s verdict of sexual harassment, and

the district court erred by denying Boh Brothers’ renewed motion for judgment

as a matter of law. 

Accordingly, we VACATE the judgment, including the award of injunctive

relief, and REMAND for entry of judgment dismissing the complaint.

VACATED and REMANDED for entry of judgment of dismissal.

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