## Facts

- Kerry Woods, an iron worker and structural welder, worked on a bridge-maintenance crew supervised by superintendent Chuck Wolfe at an all-male construction site.
- The jobsite culture involved frequent vulgar language, but the EEOC alleged Wolfe targeted Woods with near-daily harassment tied to how Wolfe believed a man should act.
- Wolfe repeatedly used gendered and homophobic slurs toward Woods (e.g., “princess,” “pu--y,” and “fa--ot”), often multiple times per day.
- Wolfe repeatedly simulated anal intercourse behind Woods while Woods was bent over working, causing Woods embarrassment and humiliation.
- Wolfe exposed his genitals to Woods multiple times while urinating and made graphic sexual remarks, including a statement implying forced oral sex if Woods’s car door had been unlocked.
- Wolfe linked his treatment of Woods to perceived gender nonconformity, stating he thought Woods was “kind of gay” or “feminine” because Woods used Wet Ones rather than toilet paper.
- Woods complained to a general superintendent, who said he would investigate but conducted an informal, undocumented response without involving legal or HR channels.
- Boh Brothers later terminated Woods, citing performance and attendance; Woods filed an EEOC charge alleging sexual harassment and retaliation.
- A jury found for the EEOC on a Title VII same-sex hostile work environment claim (awarding compensatory and punitive damages) and found for Boh Brothers on retaliation; the district court denied post-trial motions.
- A Fifth Circuit panel vacated the judgment for insufficient evidence, but the court reheard the case en banc.

## Issues

1. Whether Title VII permits proof that same-sex harassment occurred “because of sex” through evidence of gender stereotyping.
2. Whether the evidence was sufficient for a reasonable jury to find Woods was harassed “because of sex.”
3. Whether the conduct was severe or pervasive enough to create an actionable hostile work environment.
4. Whether the evidence supported punitive damages based on employer malice or reckless indifference to federally protected rights.

## Decision

- The en banc court held that same-sex harassment may be shown to be “because of sex” through gender-stereotyping evidence and is not limited to proof of sexual desire or sexual orientation.
- The court concluded the evidence permitted a reasonable jury to find Wolfe harassed Woods because Woods did not conform to Wolfe’s masculine stereotypes.
- The court held the evidence was sufficient for a reasonable jury to find the harassment objectively and subjectively severe or pervasive.
- The court upheld the basis for employer liability on the hostile environment claim given Wolfe’s supervisory role and the jury’s ability to reject the employer’s preventive/corrective efforts as inadequate.
- The court reversed in part as to punitive damages and remanded for further proceedings concerning that component of the judgment.

## Legal Principles

- Title VII prohibits workplace harassment “because of sex,” including same-sex harassment, when supported by facts showing sex-based motivation.
- A plaintiff may prove same-sex harassment “because of sex” through multiple evidentiary paths, including evidence that the harasser targeted the victim for failing to conform to gender stereotypes.
- A hostile work environment requires harassment sufficiently severe or pervasive to alter the conditions of employment and create an abusive environment, evaluated both objectively and subjectively.
- When the harasser is a supervisor, the employer may be vicariously liable; the employer’s preventive and corrective response, and the employee’s use of reporting mechanisms, are central to the availability of any affirmative defense.
- Punitive damages under Title VII require proof the employer acted with malice or reckless indifference to federally protected rights; liability for harassment does not automatically establish entitlement to punitive damages.

## Conclusion

The en banc Fifth Circuit recognized gender stereotyping as a valid method to prove that same-sex harassment occurred “because of sex” under Title VII and held the trial evidence supported the jury’s hostile-environment verdict, while requiring further scrutiny of the punitive-damages award on remand.


Equal Emp. Opportunity Comm'n v. Boh Bros. Constr. Co., 731 F.3d 444 (5th Cir. 2013) (en banc)