The Fifth Circuit Court of Appeals recently ruled in a same-sex age discrimination case brought by the EEOC. EEOC v. Boh Bros. Const. Co., L.L.C., No. 11-30770 (5th Cir. July 27, 2012), available at http://www.ca5.uscourts.gov/opinions/pub/11/11-30770-CV0.wpd.pdf.
The EEOC brought a Title VII case on behalf of a male construction worker who claimed that his crew superintendent engaged in same-sex harassment by using homophobic epithets and lewd gestures. No evidence showed that either man was homosexual or attracted to homosexuals. The jury returned a verdict against the employer. The employer appealed.
Title VII of the Civil Rights Act of 1964 protects employees against workplace discrimination, but it is not a civility code and does not protect employees against all forms of mistreatment. Here, homophobic epithets were routinely used among crew members, and the aggressor targeted other crew members who reciprocated with similar vulgarity. The EEOC alleged that the victim was harassed because he was not stereotypically masculine, but little evidence of the victim’s non-stereotypically masculine behavior existed. Because of this, the Court ruled that the evidence did not support the jury’s conclusion. The Court vacated the judgment.
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KEITH A. CLOUSE
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