Equal Employment Opportunity Commission v. Boh Brothers Construction Co.

Kerry Woods was an ironworker and structural welder for Boh Brothers Construction Company (Boh Brothers), where Chuck Wolfe supervised Woods. Wolfe frequently harassed Woods for months. Wolfe called Woods demeaning names, including pussy, princess, queer, and faggot, several times a day. On more than sixty occasions, Woods bent over to perform a task and Wolfe stood Woods and simulated anal intercourse behind Woods. Additionally, Wolfe exposed his own penis approximately 10 times while urinating to Woods. Woods complained to the general superintendent, who said he would investigate the issue but did not document the investigation or notify Boh Brothers’ general counsel of the alleged harassment. Boh Brothers fired Woods in February 2007. Woods filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), alleging sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964 (Title VII). The EEOC argued that Woods had been harassed because he was not manly enough in Wolfe’s eyes, based on Wolfe’s statements that Woods seemed “kind of gay.” The jury returned a verdict for Woods on the harassment claim and for Boh Brothers on the retaliation claim. Boh Brothers filed a renewed motion for judgment as a matter of law as well as a motion for a new trial, both of which were denied. Boh Brothers appealed. The court of appeals overturned the jury verdict, finding that the evidence was insufficient as a matter of law to support the jury’s finding that Wolfe discriminated against Woods because of sex. The EEOC obtained en banc review. Boh Brothers argued that the EEOC could not rely on gender-stereotyping evidence to establish a same-sex harassment claim and that even if the EEOC could, the evidence was insufficient to sustain the jury’s verdict.