August 15, 2012

Court Rejects Same-sex Harassment Claim

Posted in Discrimination, Gender / Sex, Sexual Harassment, Sexual Orientation, Stereotyping tagged , , at 10:56 am by Tom Jacobson

Last year I wrote about a case where a jury awarded a construction worker nearly half a million dollars in  a same-sex / gender stereotyping case (see Same-sex Harassment Costs Contractor $451K). That verdict has now been overturned.

The case was filed by the Equal Employment Opportunity Commission on behalf of Kerry Woods who alleged that his supervisor at Boh Brothers Construction Co., LLC harassed and taunted him.  According to the EEOC, the supervisor engaged in verbal abuse, made taunting gestures of a sexual nature and exposed himself. The EEOC also presented evidence that the supervisor harassed Woods “because he thought he was feminine and did not conform to the supervisor’s gender stereotypes of a typical ‘rough ironworker.'”

Boh Brothers appealed the verdict, and in a July 27, 2012 decision, the United States Fifth Circuit Court of Appeals vacated the judgment. The appellate court based its decision on a finding that there was “insufficient evidence that [the alleged harasser] ‘acted on the basis of gender’ in his treatment of Woods.”

Importantly, the court stopped short of rejecting all sex-stereotyping cases under Title VII:

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.

What you need to know:  Minnesota employers need to be careful to not assume that the Boh Brothers decision frees them from liability for same-sex harassment or gender stereotyping. The Boh Brothers case was decided by the United States Fifth Circuit Court of Appeals, but Minnesota is part of the Eighth Circuit Court of Appeals; therefore, the decision is not binding precedent here. It was also decided based on the specific facts of the case. Moreover, the Minnesota Human Rights Act expressly prohibits employment discrimination based on sexual orientation.; therefore, the outcome of the case may certainly have been different under Minnesota law.

For more information about this article, please contact me at

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA



  1. Ron K. said,

    Generally speaking, The Golden Rule: “Treat others the way you would wish to be treated” guides people down a safe pathway. This can be only be problematic as it relates to people who would wish to be treated badly.

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