Judging Gender Norms in \u3cem\u3eEEOC v. Boh Bros. Construction Co.\u3c/em\u3e: Why the Subjective Approach Is Necessary When Evaluating Claims of Sex Discrimination Based on Gender Stereotyping

Abstract

On September 27, 2013, the U.S. Court of Appeals for the Fifth Circuit, sitting en banc, held in favor of Kerry Woods, a heterosexual male construction worker who claimed sex discrimination based on gender stereotyping by Chuck Wolfe, his heterosexual male supervisor. In EEOC v. Boh Bros. Construction Co., the majority based its analysis on Wolfe’s subjective view of Woods’ non-conformance with gender stereotyping in holding there was discrimination. The use of a subjective test ensures that victims of severe or pervasive sex discrimination have a remedy even if they visibly conform to gender stereotypes. Additionally, the majority correctly protected all employees who experience severe or pervasive sex discrimination irrespective of their environments by concluding that the inherently vulgar context of the construction site did not automatically invalidate the claim. The dissenting judges’ emphasis on using an objective standard when analyzing claims of sex discrimination based on gender stereotyping would improperly deny victims of severe or pervasive harassment a remedy simply because they appear to comply with the judges’ opinions of gender norms