“Because of Sex” Need Not Rely on Stereotypes

By Bill Wright

For a supervisor to engage in same sex harassment, his (or her) conduct does not need a basis in sex stereotypes. EEOC v. Boh Bros. Constr. Co., No. 11-30770 (5th Cir. September 27, 2013). In this case, a supervisor picked on an iron worker because the worker used Wet Ones to clean himself after going to the restroom. In an earlier ruling, a panel of the same court ruled that using Wet Ones was not “overtly feminine” and therefore picking on the worker because of it was not sex stereotyping. Now, the court has opined, en banc, that sex harassment is to be assessed from the point of view of the harasser. The harasser thought using Wet Ones was a feminine thing to do, so the harassment was based on that view of feminine conduct. If you’re concerned that this weakens the standard that harassing conduct must be objectively offensive, the rest of the conduct described at trial would have been objectively offensive – it included sexual orientation epithets, simulating anal sex and threatening nonconsensual oral sex. Nonetheless, shock-jock Howard Stern, a staunch proponent of Wet Ones, should find solace in this opinion.

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