Statement of Jurisdiction

The EEOC agrees with Boh Bros.’ jurisdictional statement.

Statement of the Issues

1. Does Title VII permit a plaintiff to prove that same-sex harassment occurred “because of sex” with evidence that the perpetrator harassed the victim because of the victim’s alleged failure to conform to gender-based stereotypes?

2. Should this Court affirm the district court’s holding that sufficient evidence supported the jury’s verdict that the harassment here occurred “because of sex” and was severe or pervasive?

3. Should this Court affirm the district court’s holding and the jury’s verdict that Boh Bros. failed to establish its “Faragher/Ellerth” affirmative defense to liability?

4. Should this Court affirm the district court’s holding that sufficient evidence supported the jury’s award of punitive damages?

5. Did the district court properly admit relevant expert testimony?

6. Did the district court properly award injunctive relief designed to prevent additional hostile environments in the future?

Nature of the Case and Course of Proceedings

This is an enforcement action brought by the U.S. Equal Employment Opportunity Commission under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The EEOC alleged that Boh Bros. violated Title VII when Chuck Wolfe, the superintendant of an all-male bridge-maintenance crew, created a hostile environment by harassing his subordinate, iron worker and welder Kerry Woods, because of sex. R-1. Wolfe harassed Woods because Wolfe believed that Woods did not conform to Wolfe’s view of how a man should act, and Boh Bros. failed to prevent and correct this same-sex harassment.

The parties tried the case before a jury for three days. R-55–58. The Commission introduced evidence at trial that Wolfe harassed Woods in various ways, including by taunting Woods almost every day with degrading sex-based slurs like “faggot,” “queer,” “gay,” “pussy,” and “princess.” USCA5 1737 (“5C-1737”), 1804, 1932, 1937, 1940–41. Wolfe also humped Woods frequently, exposed his penis to him ten times, and threatened to put his penis in Woods’s mouth. 5C-1744–45, 1739–40. Wolfe harassed Woods in these ways because Wolfe thought Woods was not “manly” enough. Wolfe “didn’t care for” Woods because Woods “didn’t fit in.” 5C-1857–58. Wolfe viewed Woods as being feminine for using “Wet Ones” instead of toilet paper. 5C-1933, 1940–41. Wolfe admitted that “pussy” means “not manly” and that he called Woods “princess” because he viewed Woods as feminine. 5C-1937, 1941.

To help the jury understand the nature of same-sex harassment that sometimes occurs in all-male environments like this one, the EEOC offered the expert testimony of Dr. Liza Gold, a Georgetown University medical-school professor and board-certified psychiatrist. Dr. Gold has considerable experience critiquing studies about sex-based harassment published by social scientists in peer-reviewed journals. 5C-2194–96. At trial, Dr. Gold summarized what such researchers have learned about same-sex harassment motivated by nonconformance with gender stereotypes (as opposed to harassment motivated by sexual desire).

According to Dr. Gold, gender-stereotype harassment is based on a perceived failure on the part of the victim to conform with stereotypical masculine behavior. It occurs most frequently in all-male settings, particularly when the group is isolated and not subject to supervision. 5C-2199–201. She testified that the harasser often insults and degrades the victim by stating or implying he is gay or feminine. 5C-2200–01. She explained that accusing a man of being gay is particularly humiliating and degrading in some sectors of society. 5C-2205. By using such epithets, Dr. Gold testified, the harasser asserts his power over the victim and seeks to bond with the other men around their shared masculinity, and to exclude the victim from this circle. 5C-2200–01, 2204.

At the close of the Commission’s case, Boh Bros. made a Rule 50(a) motion for judgment as a matter of law. 5C-2216–26. The district court denied it. 5C-2231.

During the charge conference, Boh Bros. did not object to the court’s proposed instructions on the Commission’s hostile environment claim—including the instruction explaining that the harassment had to occur because of Woods’s sex. 5C-2328. In fact, the district court stated that it had considered adding an instruction dealing specifically with evidence of gender stereotyping, but had decided that it would not give that instruction unless the parties objected. 5C-2268–69. Boh Bros. consented to not giving such an instruction. 5C-2269–70.

The jury found Boh Bros. liable for creating a sex-based hostile work environment, returning a verdict in favor of the Commission and awarding $450,000 in compensatory and punitive damages. 5C-2345–47. (The district court later reduced the compensatory damages to comply with the statutory cap. R-193.)

After the district court entered judgment on the jury verdict, R-59, the EEOC requested that the district court order injunctive relief, R-60. The district court held a hearing on the matter, R-94, 100, and then issued an injunction. R-102, 103. The injunction requires Boh Bros. to create, post, and implement a sex harassment policy; notify Boh Bros. employees of the verdict by letter; designate a representative to receive and investigate complaints; train all employees about sexual harassment and retaliation twice during the compliance period; submit reports to the EEOC and allow the agency to monitor compliance; and post a notice about this case and how it was resolved. App-6.

Boh Bros. sought judgment as a matter of law under Rule 50(b), arguing that the EEOC failed to present sufficient evidence to support the jury’s liability finding or its award of compensatory and punitive damages. Boh Bros. also argued that judgment as a matter of law should have been granted to it because the company had proven an affirmative defense to liability under Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998), and to punitive damages under Kolstad v. American Dental Association, 527 U.S. 526, 545 (1999). R-77. The company alternatively sought a new trial under Rule 59, maintaining that the court’s admission of Dr. Gold’s expert testimony was prejudicial error. R-67. The district court denied the company’s Rule 50(b) and Rule 59 motions. App-9, R-93. Boh Bros. appealed. R.-104.

A panel of this Court reversed, holding that the Commission had not offered legally sufficient evidence that Woods was harassed because he failed to conform to gender stereotypes. See slip op. at 7. The panel acknowledged that the EEOC’s theory was that “Wolfe harassed Woods because Woods did not, in Wolfe’s view, conform to the male stereotype.” Id. at 5 (emphasis added). But the panel then ruled that the EEOC could not prevail unless it proved that Woods in fact – objectively – failed to conform to society’s gender norms. See id. at 7 (“[A] plaintiff may not recover based on nonconformance to gender stereotypes unless the plaintiff conforms to nonconformance gender stereotypes.”). Here, the panel stated, “Wolfe testified that he did not view Woods as feminine,” and found “there is no evidence except the ‘Wet Ones’ that he did, and that does not strike us as overtly feminine.” Id. (emphasis added). Thus, the panel concluded that “the evidence is insufficient to support the jury’s verdict that Woods was discriminated against ‘because of … sex ….’” Id. at 7–8.

The EEOC petitioned for rehearing en banc, and this Court granted that petition. See 2013 WL 1276022 (5th Cir. Mar. 27, 2013).

Statement of the Facts [1]

Kerry Woods is an iron worker and structural welder. 5C-1732. Boh Bros. hired Woods in November 2005, 5C-1730, and assigned him to work on crews repairing the Twin Spans bridges after Hurricane Katrina, 5C-1787, 2121–22. In January 2006 the company transferred Woods to a bridge-maintenance crew. 5C-1733. About five employees worked on this crew under the leadership of Chuck Wolfe, the superintendant, and (under him) Tim Carpenter, the foreman. 5C-1735, 1877, 2163. Wolfe had the authority to fire and discipline the employees under him and to request that they be transferred. 5C-1910–13.

The maintenance crew worked in relative isolation, 5C-1981–83, except that they sometimes worked near or with employees of Volkert Construction Services, a company that the state had retained to inspect the bridge and set priorities for Boh Bros.’ maintenance crew. 5C-1980–81, 2233, 2235. Boh Bros. submitted no evidence showing that company managers with supervisorial authority over Wolfe periodically visited the sites where the crew worked to monitor Wolfe’s performance or conduct.

Beginning sometime between February and April 2006, Wolfe started treating Woods differently than the other workers. 5C-1736 (in or before April), 5C-2085 (maybe in February or March).[2] The harassment took various forms. While Boh Bros. minimizes Wolfe’s behavior as “crude jokes and obscene gestures,” Boh Bros. en banc brief (“BBEB”) at 7, it included far more. Wolfe addressed Woods almost every day – and often two to three times a day – with degrading sex-based epithets like “faggot,” “queer,” “gay,” “pussy,” and “princess.” 5C-1737, 1804, 1932, 1937, 1940–41. Two to three times a week, while Woods was bent over to perform his assigned tasks, Wolfe came up close behind him and simulated having anal intercourse with him. 5C-1744. Woods found this embarrassing and started looking over his shoulder before bending over, afraid that Wolfe would “hump” him again or touch him. 5C-1744.

On one occasion Woods felt physically threatened by Wolfe. Wolfe called him names, and Woods, to stop him, retorted, “Eat shit and die!” 5C-1739, 1803. Wolfe responded by approaching Woods and asking, “What did you say?” Woods feared that Wolfe was about to attack him. 5C-1803.

Wolfe exposed his penis to Woods about ten times. 5C-1745. On some of these occasions, Wolfe waved at Woods and smiled when Woods saw his penis. 5C-1745.

Woods sometimes went to his car during breaks, 5C-1739, and he often locked the car doors to protect himself from Wolfe’s harassment, 5C-1741. One day Woods woke up from such a nap to find Wolfe messing with his car door. Woods opened the door and saw Wolfe apparently closing his pants zipper. Wolfe said, “If your door wouldn’t have been locked, my dick would have probably been in your mouth.” 5C-1739–40.

Woods told Wolfe one time that he sometimes used Wet Ones at home instead of toilet paper. 5C-1803. Wolfe believed that only girls and babies use Wet Ones and taunted Woods about being gay and feminine because he used them. 5C-1933, 1935.

Wolfe regularly directed certain epithets at Woods that he did not direct at other crew members. Notably, Wolfe conceded that he called only Woods “queer” and probably called only Woods “faggot.” 5C-1940.[3] Woods testified that Wolfe was “attacking” him with these epithets. 5C-1738.

There was no evidence that Wolfe exposed his penis to any other crew members. See 5C-2109 (crew member Bobby Boswell testified he never saw Wolfe expose himself to anyone). Wolfe may have “humped” another crew member, 5C-2125, and called another crew member “pussy,” 5C-2114, but there was no evidence that any other crew member was subjected to as frequent, diverse, and intense harassment as Woods was.

The Commission offered evidence that Wolfe harassed Woods as severely as he did because Wolfe viewed Woods as insufficiently masculine. Wolfe told Wayne Duckworth, the general superintendant for Boh Bros.’ Heavy Highway Department, that he “didn’t care for” Woods because Woods “didn’t fit in.” 5C-1848, 1857–58. Wolfe acknowledged that “pussy” means “not manly,” and he called Woods “princess” because he was feminine. 5C-1937, 1941. Wolfe believed that using Wet Ones “seemed kind of gay” and was something a man would not do. 5C-1933, 1935. Wolfe explicitly testified that when he called Woods “gay” and “faggot,” he was saying Woods was feminine. 5C-1933.[4]

Woods complained to his foreman, Tim Carpenter, two or three times about Wolfe. 5C-1747–48. He complained that he “didn’t like how [Wolfe] talked to me.” 5C-1747. He chose not to complain about everything Wolfe did because he feared he would get in trouble. 5C-1748. He did not quit his job because he needed to support his family. 5C-1748.

One day in November 2006, Woods went to the Volkert office trailer and asked Dudley Boudreaux, a senior inspector, to let him check that all his hours had been recorded on the timesheet. 5C-1749–50, 2240. Boudreaux did not let Woods look at the time sheet, 5C-1750, in part because there was only one timesheet, which recorded the hours worked by all the crew members, 5C-2241. Without protest, Woods left. 5C-1750, 2240. Very soon after that, Boudreaux allegedly told Wolfe that Woods had asked to see the timesheet hours recorded for other employees. 5C-1998–99, 2241. Boh Bros. allegedly considered looking at other employees’ timecards a firing offense. 5C-2052.

Wolfe phoned Duckworth and reported the alleged timecard violation. He told Duckworth that he did not want Woods on his crew and he “didn’t care for” Woods because Woods “didn’t fit in.” 5C-1857–58.

That day or the next morning Wolfe told Woods to go see Duckworth. 5C-1749,1999. Wolfe testified that at that point he was “done with him [Woods].” 5C-1999. Wolfe told Carpenter that he had “gotten rid of” Woods. 5C-2175.

Woods went to see Duckworth at Boh Bros.’ Almonaster yard. 5C-1752–53. Woods complained to Duckworth about Wolfe’s harassment. 5C-1753. He told Duckworth everything Wolfe said to him, and he told him that Wolfe would “hump” him and expose his penis to Woods. 5C-1753, 1851. The conversation lasted about 20 to 30 minutes. 5C-1754, 1851. Woods also told Duckworth that Wolfe was probably stealing company gas and fishing for shrimp on company time, but the conversation focused principally on the harassment. 5C-1754, 1756. Duckworth did not mention anything to Woods about his having asked to see other employees’ timesheet entries. 5C-1756. Duckworth testified that when Woods told him what Wolfe had said and done, he (Duckworth) did not believe it was sexual harassment “because this kind of thing goes on on jobs every day.” 5C-1871. Duckworth then sent Woods home without pay. 5C-1756.

Duckworth testified that he investigated Woods’s harassment allegations. 5C-1855. He testified that he talked with Carpenter and Wolfe for about ten minutes each, but he may not have gotten around to discussing the allegations with Wolfe until several months had passed. 5C-1855–57. He did not document his investigation. 5C-1856. Nor did he notify John Lipani, the company’s general counsel and EEO officer, about the allegations. 5C-2026–27.

By contrast, Boh Bros. hired a private detective agency to investigate the allegations that Wolfe had stolen company gas and used company equipment for personal purposes. 5C-1891–92. The agency billed the company for almost 85 hours for conducting that investigation. 5C-2213–14. After the company received the agency’s report, it decided to demote Wolfe temporarily, 5C-1868, 1969, but it did not reduce his pay, 5C-1970. Duckworth testified that he told Wolfe he was being demoted for using a company forklift and for some safety violations. 5C-1869. According to Duckworth, the demotion “was not concerning Mr. Woods,” 5C-1868, and he (Duckworth) did not tell Wolfe that he was being demoted because of his treatment of Woods, 5C-1870.

Summary of Argument

Title VII prohibits employers like Boh Bros. from creating or condoning a hostile work environment “because of” an employee’s sex. The Supreme Court held in Price Waterhouse v. Hopkins that plaintiffs can show discrimination occurred because of sex with gender-nonconformance evidence. It later held in Oncale v. Sundowner Offshore Services that same-sex harassment can violate Title VII the same way opposite-sex harassment can. It follows that plaintiffs alleging severe or pervasive same-sex harassment can show that the harassment occurred because of sex with gender-nonconformance evidence. Every court of appeals to answer this question has agreed.

Here, based on just that sort of evidence, the jury found that Wolfe harassed Woods because of Woods’s sex. The panel reversed the jury’s verdict because it ruled that to prove sex discrimination with gender-nonconformance evidence, a plaintiff has to show that the victim objectively failed to conform to society’s gender stereotypes. While plaintiffs clearly may rely on evidence of objective failure to conform, the “because of sex” inquiry is primarily a discriminatory-intent inquiry focusing on why Wolfe treated Woods differently, on Wolfe’s subjective motivation. The issue, therefore, is whether Wolfe harassed Woods because Wolfe believed that Woods failed to conform to Wolfe’s stereotypes of masculinity.

The EEOC offered sufficient evidence to support the jury’s verdict that Wolfe harassed Woods for this reason. Wolfe testified repeatedly that he harassed Woods because he viewed him as “feminine” and not “manly” enough. The very epithets he used communicated those views, as Wolfe conceded on the stand. The Commission also offered sufficient evidence that Wolfe treated Woods significantly differently from how he treated the other workers. Boh Bros. has not pointed to a single co-worker who testified that he experienced anything like the level of harassment Woods testified to. Wolfe humiliated and demeaned Woods almost daily with sex-based epithets, threatened physical violence, “humped” him two or three times a week, exposed himself to Woods about ten times, and threatened to put his penis in Woods’s mouth. Given all this evidence, the jury’s findings that the harassment was “because of” sex and was severe or pervasive should be affirmed.

Boh Bros. failed to establish a Faragher/Ellerth affirmative defense as a matter of law. The jury found against the company on both prongs of the defense. Those findings were based on evidence that the company did not exercise reasonable care to prevent hostile environments at its worksites or to investigate and stop them once they occurred. The jury also received evidence that the company had no complaint procedure for harassment and that Woods had complained about it anyway. On this record, there is no basis to disturb the fact finder’s conclusion that Boh Bros. failed to meet its burden of proving its defense, much less to enter judgment as a matter of law in favor of the company on this issue (as it requests).

Boh Bros. also argues that the EEOC failed to offer sufficient evidence that the company acted with reckless disregard, and that the company established its Kolstad good-faith affirmative defense as a matter of law. But Boh Bros. knew that potentially offensive sex-based language and conduct were common at its worksites and did almost nothing to prevent hostile environments from occurring and very little to correct them. The evidence the EEOC adduced at trial was legally sufficient to support the jury’s award of punitive damages. Moreover, in part because of the company’s cavalier approach to and acquiescence in sex-based harassment, the district court acted well within its discretion in entering injunctive relief designed to prevent future violations.

Finally, the district court did not abuse its discretion, much less commit prejudicial error, in allowing the EEOC’s expert to testify to what social science research has learned about same-sex harassment motivated by a perceived failure to conform with gender stereotypes. This Court should therefore affirm the district court’s denial of a new trial.

Argument

I. The district court properly denied Boh Bros.’ Rule 50(b) motion for judgment as a matter of law.

A. Standard of review

This court reviews de novo a district court ruling on a Rule 50(b) motion for judgment as a matter of law, McBeth v. Carpenter, 565 F.3d 171, 176 (5th Cir. 2009), and any district court rulings on issues of law, Floyd v. Amite County Sch. Dist., 581 F.3d 244, 248 (5th Cir. 2009). In reviewing a Rule 50 ruling, this Court construes the evidence in the light most favorable to the non-moving party (here, the Commission). Cherry v. Shaw Coastal, Inc., 668 F.3d 182, 187 (5th Cir. 2012).

Moreover, the “standard of review with respect to a jury verdict is especially deferential.” Brown v. Bryan County, Okla., 219 F.3d 450, 456 (5th Cir. 2000). Judgment as a matter of law is only proper if “‘the facts and inferences point so strongly and overwhelmingly in the movant’s favor that reasonable jurors could not reach a contrary conclusion.’” Baisden v. I’m Ready Prods., Inc., 693 F.3d 491, 498 (5th Cir. 2012). This court “‘cannot reverse a denial of a motion for judgment as a matter of law unless the jury’s factual findings are not supported by substantial evidence, or if the legal conclusions implied from the jury’s verdict cannot in law be supported by those findings.’” Id. at 499; see also McKenzie v. Lee, 259 F.3d 372, 374 (5th Cir. 2001) (explaining that “the standard on appeal for evaluating the sufficiency of the evidence is whether the evidence, considered in the light most favorable to the verdict, has such quality and weight that reasonable and fair-minded persons could reach the same conclusion”).

B. Plaintiffs can prove that same-sex harassment occurred “because of” the victim’s sex with gender-nonconformance evidence.

All the courts of appeals to address the issue have agreed that plaintiffs can use gender-nonconformance evidence to show that same-sex harassment occurred because of sex. This Court should reject Boh Bros.’ argument to the contrary.

1. Longstanding Title VII precedent supports the use of gender-stereotyping evidence in same-sex hostile work environment cases, and this evidentiary theory is merely one method of showing the harassment occurred “because of sex.”

Boh Bros. contends that the law does not allow the Commission to prove that same-sex workplace harassment happened “because of sex” by showing that the perpetrator harassed the victim because the victim failed to conform to the perpetrator’s gender stereotypes. Boh Bros.’ position has no support in the statutory language or in the governing case law.

Title VII makes it unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … sex ….” 42 U.S.C. § 2000e-2(a)(1). The statute prohibits harassing an employee because of sex severely or pervasively enough to change the terms and conditions of the victim’s employment. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66–67 (1986); Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 805–06 (5th Cir. 1996).

In Oncale v. Sundowner Offshore Servs., Inc., the Supreme Court ruled that this prohibition includes “same-sex” harassment. 523 U.S. 75, 79-80 (1998); see also Cherry, 668 F.3d at 188 (male plaintiff offered sufficient evidence that male supervisor’s harassment of him was because of sex). The Court in Oncale reasoned that “nothing in Title VII necessarily bars a claim of discrimination ‘because of … sex’ merely because the plaintiff and … the person charged with acting on behalf of the defendant are of the same sex.” 523 U.S. at 79. And while “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII,” statutory prohibitions “often go beyond the principal evil to cover reasonably comparable evils ….” Id. at 80. According to the Court, Title VII’s bar on discriminatory treatment “must extend to sexual harassment of any kind that meets the statutory requirements.” Id. (emphasis added). Of course, the Court cautioned, “[w]hatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue … actually constituted ‘discrimina[tion] … because of … sex.’” Id. at 81.

There are any number of “evidentiary routes” that courts have recognized as permissible paths for proving that discrimination or harassment was “because of sex.” Cf. Castaneda v. Partida, 430 U.S. 482, 499 (1977) (commenting on the “many facets of human motivation” that may animate discrimination). Over the years, courts have allowed plaintiffs to proceed with evidence suggesting sex-based motivations as varied as benign safety concerns, customer preferences, actuarial principles, and/or sexual desire. See, e.g., Int’l Union, UAW v. Johnson Controls, 499 U.S. 187, 191 (1991) (“fetal protection” policy barring all fertile female employees from working in jobs involving lead exposure); Diaz v. Pan American World Airways, Inc., 442 F.2d 385, 389 (5th Cir. 1971) (customer preference for female flight attendants); City of Los Angeles, Dep’t of Water & Power v. Manhart, 435 U.S. 702, 705 (1978) (rule requiring female employees to pay more than male employees for same pension benefit); Jones v. Flagship Int’l, 793 F.2d 714, 721–22 (5th Cir. 1986) (conditioning a job on acceding to sexual advances).

In addition, and very relevant here, courts have readily allowed plaintiffs to prove that discrimination occurred “because of sex” by showing that an employer had set working conditions or made tangible economic decisions based on sex “stereotypes.” As this Court recognized as far back as 1974 in Pond v. Braniff Airways, Inc., “if [an] employer in any way permits stereotypical culturally-based concepts … to creep into its thinking, then Title VII will come to the employee’s aid.” 500 F.2d 161, 165-66 (5th Cir. 1974); see also Laxton v. Gap Inc., 333 F.3d 572, 584 (5th Cir. 2003) (prohibiting reliance on “stereotypical presumption about [a worker’s] ability to fulfill job duties as a result of her pregnancy”); Capaci v. Katz & Besthoff, Inc., 711 F.2d 647, 660 (5th Cir. 1983) (noting that if particular job advertisements were placed only in “male wanted” columns “out of a sincere belief that females would not be interested in the job, such a belief is precisely the kind of stereotyped assumption that Title VII is aimed at eliminating”).

In Manhart, the Supreme Court similarly observed that “employment decisions cannot be predicated on mere ‘stereotyped’ impressions about the characteristics of males or females.” 435 U.S. at 707. The Court explained that in “forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Id. at 708 n.13.

Over a decade later, in Price Waterhouse v. Hopkins, 490 U.S. 228, 255-56 (1989), the Court again reiterated that discrimination based on the assumption that men or women employees would or should comply with stereotypical gender norms constitutes discrimination because of sex. The plaintiff in Price Waterhouse was a female senior manager at a major accounting firm. Id. at 230–31. The firm refused to make her a partner. According to the Court, “[t]here were clear signs … that some of the partners reacted negatively to [the plaintiff’s] personality because she was a woman.” Id. at 235. The Court noted that one partner described her as “macho.” Id. Yet another told her to take “a course at charm school.” Id. One of her supporters commented that she “ha[d] matured from a tough-talking somewhat masculine hard-nosed [manager] to an authoritative, formidable, but much more appealing lady [partner] candidate.” Id. Someone else told the plaintiff that “in order to improve her chances for partnership [she] should ‘walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.’” Id.

The Supreme Court found that the plaintiff’s gender – and, more specifically, “sex stereotyping” – had indeed played a motivating part in the firm’s decision not to make her a partner. See id. at 249–51 (plurality opinion of four Justices); id. at 258–61 (White, J., concurring); id. at 272–73 (O’Connor, J., concurring) (accepting the plurality’s sex-stereotype reasoning and characterizing the “failure to conform to [gender] stereotypes” as a discriminatory criterion). As for the “legal relevance of sex stereotyping,” the Court held:

[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group …. An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this bind.

Id. at 251.

Since Price Waterhouse, many courts – including this Court – have acknowledged its core principle that evidence of sex-stereotyping can satisfy Title VII’s “because of sex” element. See, e.g., Davis v. Chevron USA, Inc., 14 F.3d 1082, 1085 (5th Cir. 1994) (recognizing that remarks suggesting an employer believes an employee does not conform to gender norms directly demonstrate a sex-based bias) (citing Price Waterhouse); see also, e.g., Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011) (recognizing Price Waterhouse’s gender-stereotype holding); Lewis v. Heartland Inns of Am., L.L.C., 591 F.3d 1033, 1038 (8th Cir. 2010) (same); Chadwick v. WellPoint, Inc., 561 F.3d 38, 44 (1st Cir. 2009) (same). Price Waterhouse held that gender-nonconformance evidence can show that the defendant took an adverse action against an employee because of sex. Nothing in the text of Title VII suggests that “because of sex” should be interpreted differently when the adverse action is a hostile work environment.

Thus, the use of “sex-stereotyping” evidence in this circuit and others has become a regular evidentiary route to establishing a Title VII claim. And because the creation or condoning of a hostile work environment is a form of discrimination, Meritor, 477 U.S. at 66, the sex-stereotyping principle applies equally to cases where the discrimination at issue takes the form of harassment. See, e.g., Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 290 (3d Cir. 2009) (“[E]mployees may – consistent with the Supreme Court’s decision in Price Waterhouse – raise a Title VII gender stereotyping claim, provided they can demonstrate that ‘the[ir] harasser was acting to punish [their] noncompliance with gender stereotypes.’”).

In addition, bringing same-sex gender-stereotyping harassment cases, like this one, likewise has become fairly common. See, e.g., Medina v. Income Support Div., N.M., 413 F.3d 1131, 1134-35 (10th Cir. 2005) (stating, in case alleging female-female harassment, that hostile environment motivated by harasser’s desire “to punish the plaintiff’s noncompliance with gender stereotypes” is unlawful); Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 874-75 (9th Cir. 2001) (holding that male plaintiff harassed by male co-workers because they viewed him as effeminate proved his Title VII claim); Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 264 (3d Cir. 2001) (ruling that “a plaintiff may be able to prove that same-sex harassment was discrimination because of sex by presenting evidence that the harasser’s conduct was motivated by a belief that the victim did not conform to the stereotypes of his or her gender”); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 261 n.4 (1st Cir. 1999) (after Oncale, the issue of whether same-sex harassment based on gender stereotyping is actionable is “no longer open”); Doe by Doe v. City of Belleville, Ill., 119 F.3d 563, 581 (7th Cir. 1997) (“[A] man who is harassed [by male co-workers] because … he exhibits his masculinity in a way that does not meet his coworkers’ idea of how men are to appear and behave is harassed ‘because of’ his sex.’”), vacated, 523 U.S. 1001 (1998). It has become merely one potential theory (among many possibilities, such as sexual desire, customer preferences, etc.) that plaintiffs may press, with appropriate evidence, to convince a fact finder that a discriminator or harasser has acted on the basis of the victim’s sex. In that regard, cases like this one are rather unremarkable.

Here, for instance, the Commission alleged that a supervisor harassed a subordinate based on the harasser’s belief that the victim did not conform to the perpetrator’s subjective views of how a man should act. This “evidentiary route” is a well-worn path, marked by the Supreme Court’s and this and other Courts’ numerous previous “sex stereotyping” decisions. Nothing about this case – or this jury’s verdict – treads any new legal ground.

2. Boh Bros.’ arguments against allowing gender-nonconformance evidence to show sex discrimination are contrary to Supreme Court and court of appeals precedent and should be rejected by this Court.

Boh Bros. would have this court of appeals be the very first to hold that Title VII forbids the bringing of gender-stereotyping same-sex-harassment cases altogether. It urges this Court to rule that these claims are categorically off limits, carved out from the statute’s protections. That reading of Title VII, however, is as unsupportable as it is unsound, for multiple reasons.

First, Title VII precedent cautions against constraining plaintiffs with rigid proof-related rules. See, e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (“[T]he precise requirements of a prima facie case can vary depending on the context and were never intended to be rigid, mechanized, or ritualistic.” (punctuation omitted)). Nothing in Title VII itself purports to bar plaintiffs from pursuing this type of claim or from using this sort of evidence. Cf. Desert Palace, Inc. v. Costa, 539 U.S. 90, 98–99 (2003) (declining to impose any special evidentiary requirements where “[o]n its face, the statute does not mention, much less require, that a plaintiff make a heightened showing”). And since the statute itself does not preclude the use of sex-stereotyping evidence to prove same-sex harassment, the question of whether to admit or exclude it should be left to the sound discretion of the trial court in each particular case. Cf. Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 387 (2008) (“Relevance and prejudice under Rules 401 and 403 are determined in the context of the facts and arguments in a particular case, and thus are generally not amenable to broad per se rules.”).

Second, nothing in Supreme Court case law holds otherwise. Boh Bros. contends that the Court in Oncale listed three permissible proof paths for same-sex harassment cases (evidence that the harasser was homosexual, harbored “general hostility” to the presence of members of his or her own sex in the workplace, or treated members of his or her sex differently than members of the opposite sex in a mixed-sex workplace), and thus implicitly prohibited the use of any other evidentiary theories, such as proof of sex-stereotyping. BBEB at 15. Boh Bros. acknowledges the weakness in its own argument, conceding that the Court in Oncale actually “did not clarify if the three methods of proof outlined were exclusive or whether other means could be utilized to prove a claim of same-sex sexual harassment.” Id. (emphasis added). Despite its admission that Oncale is ambiguous on the point, Boh Bros. nonetheless “suggests” that the Court “intended” for three routes to be exclusive. Id.

Boh Bros.’ interpretation takes select passages of the opinion out of context, distorting the decision’s main message. The thrust of Oncale was that Title VII prohibits same-sex, as well as opposite-sex, harassment so long as plaintiffs pursuing same-sex claims satisfy the same statutory because-of-sex requirement that plaintiffs bringing opposite-sex claims must meet. In fact, in numerous places throughout its opinion, the Court in Oncale emphasized that same-sex harassment cases should otherwise be treated like any other Title VII harassment case.

For example, the Court pointed to the “many facets of human motivation” that might lead members of one group to discriminate against members of their own group (just as they might discriminate against those outside the group). 523 U.S. at 78. The Court nowhere hinted that those “many facets” could not or should not include gender nonconformance. The Court also found no basis in the statute for the “bewildering” array of rules that the lower courts had contrived for same-sex harassment cases – indicating that no such special carve-outs should be applied. Id. at 79.

The Court held that there was “no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims” from Title VII (which the Court in Meritor previously had held prohibited opposite-sex harassment). 523 U.S. at 79. The Court emphasized that the statutory prohibition on harassment had to be read to preclude harassment “of any kind that meets the statutory requirements.” Id. at 80 (emphasis added). And it explained that “[w]hatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted ‘discrimina[tion] ... because of ... sex.’” Id. at 81 (first emphasis added). Altogether, these statements strongly suggest that any and all paths for proving same-sex harassment – including gender-stereotyping – should generally be available.

Read in this context, the logical inference is that the Court’s specific list of three possible evidentiary routes (e.g., evidence of sexual desire, gender-based hostility, or comparative treatment) was illustrative, not exhaustive. The Court was merely offering hypotheticals to show possible ways in which same-sex cases could, like opposite-sex claims, be brought and proved. Indeed, the Court even used the phrase “for example” in offering these hypotheticals. 523 U.S. at 80 (“A trier of fact might reasonably find such discrimination, for example, if a female victim …” (emphasis added)).

To be sure, the Court recognized that in a same-sex sexual harassment scenario where the plaintiff’s theory of the case is that the perpetrator was motivated by sexual desire for the victim, the plaintiff might need to proffer “credible evidence that the harasser was homosexual.” 523 U.S. at 80. This proof would not be required in an opposite-sex sexual harassment case, the Court reasoned, because most fact finders typically presume heterosexuality and the “because of sex” inference is thus easy for jurors to draw. Id. But, the Court explained, “harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.” Id. And outside that singular scenario, the Court seemed to suggest, similar rules, proof schemes, and evidentiary routes should apply. Cf. id. at 81 (emphasizing that “[i]n same-sex (as in all) harassment cases” the fundamental “inquiry” remains the same (emphasis added)); La Day v. Catalyst Technology, Inc., 302 F.3d 474, 481 (5th Cir. 2002) (implying that proving sex discrimination in same-sex-harassment cases is harder only when plaintiff uses evidence of sexual desire).

Not a single court of appeals has held to the contrary. In fact, not surprisingly, all the appeals courts to rule on this question have agreed that the three routes suggested in Oncale are not exhaustive. See, e.g., Medina, 413 F.3d at 1134-35 (declaring that Oncale’s “three evidentiary routes … are not exhaustive”); Pedroza v. Cintas Corp., 397 F.3d 1063, 1068 (8th Cir. 2005) (describing Oncale’s list as “non-exhaustive”); Bibby, 260 F.3d at 264 (noting that after Oncale there are “at least three ways” to show same-sex harassment, and “[b]ased on the facts of a particular case and the creativity of the parties, other ways … may be available”); Shepherd v. Slater Steels Corp., 168 F.3d 998, 1009 (7th Cir. 1999) (explaining “we discern nothing in the Supreme Court’s decision indicating that the examples it provided were meant to be exhaustive rather than instructive”); see also Barrows v. Seneca Foods Corp., No. 12-970, 2013 WL 656742, at *2 & n.3 (2d Cir. Feb. 25, 2013) (stating that Oncale “outlined three examples of evidence that could satisfy” the “because of sex” test, but declining to resolve whether “these three categories … were meant to establish an exclusive list or merely provide representative examples”). [5]

In La Day, this Court noted that Oncale “outlined three ways in which a plaintiff can show that an incident of same-sex harassment constitutes sex discrimination.” 302 F.3d at 478. However, this Court nowhere stated that those “three ways” were the only ways of proving that same-sex harassment was “because of sex.” To the contrary, this Court went on to note that “‘[t]he Court’s focus [in Oncale] was on what the plaintiff must ultimately prove rather than the methods of doing so.’” Id. And in making that particular point, this Court in LaDay quoted directly from Shepherd v. Slater Steels Corp., from the very part of the opinion in which the Seventh Circuit had ruled that the three routes mentioned in Oncale were not exclusive. Id. (quoting 168 F.3d at 1009).

Boh Bros. contends that this Court’s unpublished opinion in Love v. Motiva Enterprises LLC, 349 F. App’x 900 (5th Cir. 2009), somehow altered this Court’s view on this issue. BBEB at 21. Of course Love is not precedential. 5th Cir. R. 47.5.4. Moreover, the decision does not explicitly address whether – let alone hold that – the three evidentiary paths suggested in Oncale are the only ways to prove same-sex harassment. This Court in Love stated that plaintiffs “may” show that same-sex harassment is “because of sex” by using the three routes in Oncale. 349 F. App’x at 902 (citing LaDay, 302 F.3d at 478). But “may” does not mean “must.” And because the plaintiff-appellant in Love tried to follow one of those paths (through proof that the harasser was homosexual), the Love panel had no occasion to consider whether other paths are available. 349 F. App’x at 902.[6]

Boh Bros. offers no other convincing justification for its restrictive reading of Oncale. It infers from the Court’s decision to grant certiorari, vacate and remand (“GVR”) the Seventh Circuit’s decision in City of Belleville that “the only logical conclusion is that the Supreme Court rejected [the idea] that sex-stereotyping was a viable means of proving same-sex sexual harassment.” BBEB at 17. Of course, as this Court has recognized, a GVR is not a “final determination on the merits” and “[w]hen the Supreme Court utilizes its GVR power … the lower court to which the case is remanded … is free to determine whether its original decision is still correct in light of the changed circumstances or whether a different result is more appropriate.” Kenemore v. Roy, 690 F.3d 639, 642 (5th Cir. 2012). Boh Bros.’ hypothesis that the GVR in Belleville means the Court was sub silentio rejecting the use of sex-stereotyping in same-sex cases is highly questionable.[7]

Finally, it seems highly implausible that the Court in Oncale could ever have actually intended to prohibit plaintiffs from using sex-stereotyping evidence. The Court obviously was well aware of what it had done in Price Waterhouse. If the Court had meant to take such an important evidentiary theory off the table in Oncale, it likely would have said so expressly. See Bibby, 260 F.3d at 263 n.5.

Further, there is no sound policy justification for limiting proof theories in same-sex harassment cases so artificially. Gender-nonconformance evidence does not somehow, categorically, become uniquely irrelevant, inherently not probative, or unduly prejudicial in a same-sex harassment context. See, e.g., Higgins, 194 F.3d at 261 n.4 (explaining, post-Oncale, that “the standards of liability under Title VII, as they have been refined and explicated over time, apply to same-sex plaintiffs just as they do to opposite-sex plaintiffs” and thus “a man can ground a claim on evidence that other men discriminated against him because he did not meet stereotyped expectations of masculinity”).

Boh Bros. may be arguing that permitting plaintiffs to prove same-sex harassment with sex-stereotyping evidence will pose unique problems in scenarios involving workplaces that often are all-male, such as construction sites. See BBEB at 35 (alleging, erroneously, that “[t]he only comments about Woods’ masculinity were that his use of Wet Ones seemed ‘kind of gay’ in working around a bunch of iron workers”). The company cites to cases suggesting that the sort of harassment Wolfe subjected Woods to here is simply par for the course in these “rough-and-tumble” settings. BBEB at 31; see, e.g., EEOC v. McPherson Cos., ___ F. Supp. 2d ___, No. 10-2627, 2012 WL 5511011, *7 (N.D. Ala. Nov. 14, 2012). Boh Bros. thus appears to argue that Wolfe’s behavior should not violate the act because the context was a coarse blue-collar environment where this behavior is common, and neither the EEOC nor this Court should try to police the language in such workplaces.

But there is no “crude workplace” exception to Title VII. See EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 318 (4th Cir. 2008) (“While the district court suggested that the harassment might be discounted because the environment was inherently coarse, Title VII contains no such ‘crude environment’ exception, and to read one into it might vitiate statutory safeguards for those who need them most.”); Jackson v. Quanex Corp., 191 F.3d 647, 662 (6th Cir. 1999) (“[W]e squarely denounce the notion that the increasing regularity of racial slurs and graffiti renders such conduct acceptable, normal, or part of ‘conventional conditions on the factory floor.’”).

Further, permitting gender-stereotyping same-sex harassment claims will not lead workplaces everywhere to mandate gender-neutral political correctness or stretch Title VII’s reach beyond appropriate bounds. As Justice Scalia explained in Oncale itself:

Respondents and their amici contend that recognizing liability for same-sex harassment will transform Title VII into a general civility code for the American workplace. But that risk is no greater for same-sex than for opposite-sex harassment, and is adequately met by careful attention to the requirements of the statute. Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at “discriminat[ion] ... because of ... sex.”

523 U.S. at 80.

This applies with equal force to same-sex cases involving “gender-stereotyping” harassment. The Oncale Court emphasized that Title VII “does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex” and “[t]he prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the ‘conditions’ of the victim’s employment.” Id. at 81. These crucial constraints are “sufficient to ensure that courts and juries do not mistake ordinary socializing in the workplace – such as male-on-male horseplay or intersexual flirtation – for discriminatory ‘conditions of employment.’” Id. The Court was convinced that common sense and “an appropriate sensitivity to social context” would enable fact finders “to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive.” Id. at 82. Here, that is precisely what the jury did.

Conversely, a ruling that plaintiffs may not prove same-sex harassment with sex-stereotyping evidence might spill over into unanticipated scenarios, seriously jeopardizing traditional Title VII enforcement efforts. For if the Oncale routes are exhaustive, then certain same-sex harassment fact patterns that do not fit neatly into the three categories – but that would otherwise seem to fall squarely within the statute’s scope – will no longer be actionable. For example, a female boss could publicly berate and shame a new mother every day for weeks for coming back to work after giving birth instead of staying home with her children. That would seem to be quintessential sex-based harassment. Cf. Nev. Dep’t of Human Res. v., 538 U.S. 721, 736–37 (2003) (explaining that sex discrimination “is rooted, primarily, in stereotypes about women when they are mothers or mothers-to-be” (punctuation omitted)). But under Boh Bros.’ approach, the new mother might not have a cognizable claim.[8]

Nothing in the statute, Supreme Court precedent applying it, this Court’s case law, or common sense requires such an absurd result or rule. Accordingly, this Court should hold, consistent with every other court of appeals to answer the question, that plaintiffs can use gender-nonconformance evidence to prove that same-sex harassment occurred because of sex.

3. The panel erred in making gender nonconformance an objective test.

The panel did not resolve whether plaintiffs in this circuit can show discrimination “because of sex” with gender-nonconformance evidence. It assumed arguendo that plaintiffs can do that but then vacated the jury verdict because it deemed the Commission’s evidence insufficient. The panel ruled that a plaintiff relying on gender-nonconformance evidence must show that the harassment victim failed to conform in some objective way with society’s expectations about people of the victim’s gender. Slip op. at 7 (“[A] plaintiff may not recover based on nonconformance to gender stereotypes unless the plaintiff conforms to nonconformance gender stereotypes.”).

The panel went astray in requiring the Commission to show that Woods failed to conform to society’s stereotypes about masculine behavior and appearance. The panel cited no authority for such a standard, and we are aware of none.[9] To the contrary, absent objective evidence of nonconformance, plaintiffs can still show the discrimination was “because of sex” with evidence that the harasser harassed the victim because the victim failed to conform to the harasser’s stereotypes and expectations – however idiosyncratic or atypical those may be. See, e.g., Belleville, 119 F.3d at 581 (issue is whether co-workers harassed plaintiff because he “d[id] not meet his coworkers’ idea of how men are to appear and behave” (emphasis added)). In Price Waterhouse, for example, the result would presumably have been the same even if Hopkins’ appearance and behavior fell within society’s expectations for women at the time, but the partners had, and acted on, outmoded stereotypes.

In “stereotyping” cases like this one, plaintiffs can prevail with evidence that the harasser subjectively perceived that the victim failed to conform to a gender norm, even if the victim objectively conformed. As in other contexts, courts focus on the actor’s beliefs or assumptions about the victim, not the empirical accuracy of those views. See, e.g., Jones v. UPS Ground Freight, 683 F. 3d 1283, 1299–300 (11th Cir. 2012) (where black truck driver alleged race-based hostile environment, jury could consider adverse treatment by trainer even though trainer wrongly believed driver was Indian); EEOC v. WC&M Enters., Inc., 496 F. 3d 393, 401 (5th Cir. 2007) (EEOC showed hostile environment based on employee’s national origin (Indian) even though harassers thought he was from Arab Muslim country).

The same is true in the sex-discrimination context. Cf. Price Waterhouse, 490 U.S. at 250 (ruling that “an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender” (emphasis added)). In Black v. Pan American Laboratories, this Court affirmed a jury verdict for a female plaintiff who alleged she was fired because of her sex. See 646 F.3d 254, 260 (5th Cir. 2011). The plaintiff had introduced evidence that decision makers said that “women were a detriment to the company,” that they “‘get hired on, get married, and/or get pregnant and they leave,’” and that the plaintiff did not need a sales quota because she was not the “‘breadwinner anyway.’” Id. Without requiring evidence that any of these statements were actually true, this court concluded that “there was ample evidence to support the jury’s finding of sex discrimination.” Id.; see also id. at 274 (Dennis, J., dissenting in part and concurring in part) (pointing out that the “breadwinner” comment was “undeniably sex-related, viz., it reflects a patent sex-based stereotype, which, parenthetically, was not true for Black, who worked while her husband was retired”); see also Laxton, 333 F.3d at 584 (employers cannot rely on a “stereotypical presumption about [a woman’s] ability to fulfill job duties as a result of her pregnancy”); Capaci, 711 F.2d at 660 (the “belief” that women would not be interested in a particular job and thus using a “male wanted” advertisement for it “is precisely the kind of stereotyped assumption that Title VII is aimed at eliminating”).

C. The Commission offered legally sufficient evidence that Wolfe harassed Woods “because of” Woods’s sex.

The jury found that Wolfe harassed Woods because of sex, and the district court ruled that sufficient evidence supported that finding. This Court should affirm that ruling.

The EEOC introduced substantial evidence that Wolfe harassed Woods because he thought Woods was not “manly.” The epithets Wolfe used directly convey that, in Wolfe’s eyes, Woods was not sufficiently masculine. The slurs Wolfe directed at Woods, on their face, described Woods as feminine or effeminate (“pussy” and “princess”), or as homosexual (“gay,” “queer,” and “faggot”). More important, Wolfe acknowledged that “pussy” means a man who is not manly, 5C-1941, and that he called Woods “princess” because he was feminine, 5C-1937. Wolfe also conceded that he called Woods “queer” and “faggot” because he thought Woods was “not manly” and that he was “feminine” because he used wet wipes. 5C-1933, 1935, 1941. Duckworth testified that Wolfe told him he did not care for Woods because Woods “didn’t fit in.” 5C-1857–58. Wolfe also simulated having anal sex with Woods and exposed his penis to Woods, in an attempt to humiliate Woods. 5C-1744–45, 1739–40. Applying appropriate Rule 50 standards, this was legally sufficient evidence to support the jury’s finding that Wolfe harassed Woods because of Woods’s sex.

Boh Bros. views the record differently. It argues, for instance, that “[t]he only evidence indicative of sex-stereotyping outside of Dr. Gold’s testimony was Wolfe’s singular comment that Woods’ use of Wet Ones sounded feminine.” BBEB at 44–45 (emphasis added). As the above recitation of the actual record evidence demonstrates, however, there was much more evidence than merely an isolated comment about wet wipes to substantiate the jury’s findings here.

The company states that Wolfe’s testimony “belies th[e] claim … that Wolfe regarded Woods as less than a man and harassed him because of this.” BBEB at 24. But this statement ignores Wolfe’s testimony that he did view Woods as “feminine” and “kind of gay.” For example, he testified:

Q. Now, when you said that Mr. Woods was kind of gay for using Wet Ones, you were saying that he was feminine; is that correct?

A. I didn’t say he was gay. Said it sounded kind of gay … .

Q. So you wouldn’t say that he was gay, but you say his conduct was kind of gay?

A. Yes, sir[.]

Q. By saying that, you were saying he was feminine; correct?

A. Yes, … sir.

Q. You meant he was not being manly; is that correct?

A. Yes, sir.

5C-1933

Q. And … when you were talking with the EEOC investigator about the wet wipes or the Wet Ones, you initially called them feminine wipes; correct?

A. Yes, sir. I believe I did.

Q. And that’s because you believed that Wet Ones [are] something that girls should use but men should not?

A. Or babies, yeah, that’s correct.

5C-1935.

Q. You called him [“faggot” and “queer”] because you thought his using wet wipes was feminine; correct?

A. Yes, sir.

Q. And you admit that you called Mr. Woods pussy; correct?

A. Yes, sir.

Q. And, in your experience, is that a slang word that one would use for a man who is not manly?

A. Guess so.

5C-1941

Q. You also called Mr. Woods princess; correct?

A. Yes, sir.

Q. And, when you called him princess, that related to the fact that you thought he was feminine; correct?

A. I guess so, yes, sir.

5C-1937

Therefore, taken in the light most favorable to the verdict, the record contains direct evidence – Wolfe’s own admissions – that Wolfe believed Woods was feminine. See, e.g., Chevron USA, Inc., 14 F.3d at 1085 (comments like calling a woman “macho” constitute direct evidence of discrimination and “cannot reasonably be interpreted as anything other than a reflection of [gender] bias” (citing Price Waterhouse)).

The fact that Wolfe may also have testified at other points that he did not view Woods as feminine is of no moment. See United States v. Lara, 181 F.3d 183, 204 (1st Cir. 1999) (when witness contradicts himself, jury is free to credit one statement and disregard the other). The jury heard all his testimony, evaluated his credibility, deliberated appropriately, and reached a legally supportable verdict.

Boh Bros. also contends that Wolfe treated all the crew members pretty much the same, apparently suggesting that in this all-male workplace there could not actually have been discrimination because of Woods’s sex. BBEB 25–27. But the Commission offered substantial evidence that Wolfe singled Woods out. Wolfe testified that he never called any of the other iron workers “queer” and may not have called anyone else “faggot.” 5C-1940. There was no testimony that Wolfe addressed the other workers with derogatory epithets as often as he did with Woods. See 5C-1737 (Wolfe did so with Woods probably almost every day and sometimes two to three times a day). Unlike Woods, no other worker testified that Wolfe was “attacking” them when he called them names. See 5C-1738. While Wolfe exposed his bare backside to other workers, Boh Bros. offered no evidence that Wolfe exposed his penis to other workers (and smiled as he did it). No evidence suggested that Wolfe ever told the other workers that he might put his penis in their mouths.

Based on this evidence, the jury reasonably found that Wolfe targeted Woods for severe harassment because Woods failed to fit Wolfe’s subjective vision of manliness. While Boh Bros. offers a competing interpretation of the evidence, BBEB 23–29, that is hardly the only reasonable or rational conclusion that can be drawn from the record. As this Court recently reiterated, the question is not whether the court reviewing the judgment “would have reached the same result,” but whether “‘reasonable [jurors] could differ’ about the presence of [sex] discrimination … based upon the accumulation of circumstantial evidence and the credibility determinations that were required.” Miller v. Raytheon Co., __ F.3d __, Nos. 11-10586 & 11-10988, 2013 WL 1845586, slip op. at 7 (5th Cir. May 2, 2013); see also Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 237 (5th Cir. 2001) (“[A] reviewing court may not disregard the jury’s credibility assessments.”). The jury heard all the evidence, weighed it, made credibility assessments, and ultimately found the facts were consistent with the Commission’s theory of the case. There thus is no basis to disturb its verdict.

Further, separate and apart from whether the jury may have concluded Wolfe was motivated by Woods’s failure to conform to gender stereotypes, there was ample evidence to sustain the jury’s verdict on other grounds. The jury could have found that Wolfe knew the comments and conduct in question would be particularly insulting, offensive, embarrassing, and humiliating to Woods as a man, and occurred because he was a man. The jury could quite reasonably have concluded from the conduct that Wolfe directed at Woods – simulating anal intercourse 60-90 times, threatening to put his penis in Woods’s mouth, exposing himself to Woods ten times and smiling about it, using anti-gay epithets, and questioning his masculinity – that Woods would not have been exposed to this type of conduct had he been a woman. The evidence was legally sufficient to sustain the jury’s verdict on that basis alone. See, e.g., Oncale, 523 U.S. at 80 (“‘The critical issue, as Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms and conditions of employment to which members of the other sex are not exposed.’” (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring))); see also Belleville, 119 F.3d at 580 (where harassment is overtly sex-specific, “one can reasonably infer that [the harassers] chose to harass [the victim] in the way they did with just this likelihood in mind - that is, that their intent was to humiliate him as a man”).

D. The Commission offered legally sufficient evidence that the harassment was sufficiently severe or pervasive.

Boh Bros. contends that the EEOC failed to offer sufficient evidence to support the jury’s implicit finding that the harassment here was severe or pervasive. BBEB 36–38. To the contrary, the record provides ample grounds to sustain the jury’s verdict on this element of the Commission’s claim as well.

In assessing whether the alleged conduct is severe or pervasive, this Court must consider “all the circumstances,” including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris, 510 U.S. at 23; Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012) (same). In this case, the jury was specifically instructed on this standard in detail, 5C-2328, and found that it had been satisfied.

The jury heard evidence establishing that Wolfe called Woods names like “faggot,” “queer,” “gay,” “pussy,” and “princess” almost every day – and often two to three times a day – for seven-plus months. 5C-1737, 1932, 1940–41. Woods felt embarrassed and humiliated as a result. 5C-1739. Dr. Gold testified that many men find terms like these “a particularly humiliating and degrading way of insulting someone,” 5C-2205, and that these terms are often used to assert the harasser’s power over the victim and to exclude the victim from the rest of the all-male group. 5C-2201, 2204. In addition, Wolfe “humped” Woods two to three times a week, or about 60 to 90 times in total. 5C-1744. He exposed his penis to Woods about ten times. 5C-1745. On one occasion Wolfe told Woods that if his car door hadn’t been locked, Wolfe’s “dick would have probably been in [Woods’s] mouth.” 5C-1739–40. On another occasion, Wolfe acted as if he were about to attack Woods physically. 5C-1803.

This conduct occurred quite frequently (combining the epithets and the “humping,” eight or more times a week for seven-plus months). It was offensive and humiliating. And it involved at least one physical threat. The Commission’s evidence therefore supported the jury’s verdict that Wolfe’s harassment was severe or pervasive enough to alter the conditions of Woods’s employment and create an objectively hostile environment. Cf. Farpella-Crosby, 97 F.3d at 805 (finding a hostile environment where offensive conduct was less frequent).

Boh Bros. maintains that the harassment alleged here cannot be severe or pervasive because it was less serious than that alleged in Shepherd v. Comptroller of Public Accounts, 168 F.3d 871, 872–74 (5th Cir. 1999), and Hockman v. Westward Communications, LLC, 407 F.3d 317 (5th Cir. 2004), where this Court found the harassment insufficiently severe or pervasive. But the harassment alleged here was significantly more pervasive than that alleged in Shepherd or Hockman. Shepherd and Hockman each alleged only about a dozen or so incidents of harassment spread out over a period of 18 to 24 months. Shepherd, 168 F.3d at 874; Hockman, 407 F.3d at 328. Further, while this Court in those cases may have concluded that the evidence was insufficient as a matter of law to support a finding of severe or pervasive harassment, it did not overturn a jury verdict in doing so. Both cases were decided at summary judgment.

Determining whether the harassment inflicted created a hostile work environment is “quintessentially a question of fact” to be determined on “a case-by-case basis.” Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 333 (6th Cir. 2008); Noviello v. City of Boston, 398 F.3d 76, 94 (1st Cir. 2005). The jury in this case found that the harassment was severe or pervasive, and the EEOC offered sufficient evidence that it was. The company’s challenge to the jury’s reasonable verdict should therefore be rejected. See Flowers, 247 F.3d at 236 (“Even under this circuit’s fairly high standard for severe or pervasive conduct, this court can reverse a jury verdict ‘only when reasonable minds in the exercise of impartial judgment could not have arrived at that verdict.’”).

E. Boh Bros. did not establish a Faragher/Ellerth affirmative defense as a matter of law.

Boh Bros. contends that the district court should have granted its Rule 50(b) motion because the company established a Faragher/Ellerth affirmative defense as a matter of law. BBEB 38–40. To prove its affirmative defense, Boh Bros. had to persuade the jury that (1) Boh Bros. exercised reasonable care to prevent and promptly correct any sex-based harassment; and (2) Woods unreasonably failed to take advantage of any preventive or corrective opportunities the company provided, or to avoid harm otherwise. See Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807. The “Faragher/Ellerth affirmative defense is conjunctive” and “the defendant bears the burden of proving both elements.” Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 483 (5th Cir. 2008), abrogated in part on other grounds, Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). Here, however, the jury specifically found that Boh Bros. had failed to prove this defense, and there is ample evidence to support the jury’s verdict on this issue.

The jury heard evidence showing that while the company had a generic anti-discrimination policy, it had no policy prohibiting, defining, or even mentioning sex-based harassment.^{^[10]} It had no written procedures for investigating complaints of harassment, either. 5C-1864, 2021–22. It failed to train Wolfe, a company supervisor, about sex-based harassment, and trained Duckworth on the subject for only about five minutes a year. 5C-1863, 1913.

Similarly, the jury heard evidence that Duckworth’s investigation of Woods’s allegations was cursory, undocumented, and far from prompt. 5C-1856–57 (Duckworth spent as little as 20 minutes investigating the complaint and may have let months go by before interviewing Wolfe). See Aryain, 534 F.3d at 483 (employer failed to exercise reasonable care where it delayed three months in responding to victim’s complaints).

The jury also heard evidence showing that the company had no procedures for complaining specifically about harassment. In addition, Woods nevertheless did complain to his foreman, Carpenter, about how Wolfe talked to him. 5C-1747. He then complained in detail to Duckworth. 5C-1753–54, 1756, 1851 (conversation lasting 20 to 30 minutes focused primarily on Wolfe’s harassment).

With this evidence before it, the jury reasonably concluded that Boh Bros. failed to establish either prong of its affirmative defense. The evidence was not so one-sided on this issue that the jury’s conclusion can be said to be irrational. Certainly, Boh Bros. did not adduce such overwhelming evidence that it would be appropriate to grant judgment as a matter of law in its favor, as the company is requesting. The district court’s ruling denying the company’s Rule 50 motion should therefore be affirmed, especially “[g]iven the deference [this Court] must accord to a jury’s evaluation of the evidence before it.” Flowers, 247 F.3d at 237. See Hatley v. Hilton Hotels Corp., 308 F.3d 473, 476 (5th Cir. 2002) (where “the jury was free to choose between the conflicting versions of events” relevant to this affirmative defense, district court erred in granting employer judgment as a matter of law).

F. The district court properly denied judgment as a matter of law on punitive damages.

Boh Bros. only briefly reiterates its challenge to the award of punitive damages. BBEB 40–42. The Commission responded to this challenge at length in its panel brief. CPB at 47–57. The district court instructed the jury properly on both the requirement for reckless disregard and the Kolstad good-faith defense, 5C-2333–34, and the jury’s verdict should be upheld.

The Commission offered sufficient evidence of reckless disregard: The company knew that many of its employees and supervisors routinely used potentially offensive gender- and sex-based epithets and engaged in potentially offensive gender-based conduct,[11] and did almost nothing to protect its employees from a hostile work environment. Its policy said nothing about harassment, its training was minimal, and it did not periodically monitor its worksites. Compare Cherry, 668 F.3d at 187 (finding no reckless disregard in part because employer “had a policy in place that provided a clear procedure for addressing sexual harassment issues”). Moreover, the EEOC offered evidence that when Woods complained to Duckworth, his investigation was both inadequate and delayed, especially when compared to the prompt, thorough, and expensive investigation the company conducted into Woods’s allegations that Wolfe was misusing company property.[12] Boh Bros. thus seriously misrepresents the record when it states in its brief: “The evidence is uncontradicted that Boh Bros. acted in good faith in handling Woods’ complaint.” BBEB 41.

Boh Bros. claims it was not on notice that this type of harassment could violate Title VII, but as of early 2006 numerous courts had said it could.[13] The company also claims it has an “exemplary record regarding its compliance” with the federal anti-discrimination laws. BBEB 41. But the reckless-disregard inquiry here focuses on whether the company in good faith tried to prevent and promptly correct the type of violation alleged here, not on past allegations of other types of violations.

Since the EEOC offered evidence that the company’s efforts to prevent hostile work environments and its efforts to investigate and remedy hostile-environment complaints fell short of the “good-faith efforts to comply with Title VII” required in Kolstad, 527 U.S. at 545, the district court properly denied Boh Bros. judgment as a matter of law on this issue.

II. The district court properly denied the company’s motion for a new trial.

Boh Bros. maintains that the district court abused its discretion in admitting Dr. Gold’s testimony and that this error was prejudicial because Dr. Gold improperly addressed the facts of this case and instructed the jury on the law. BBEB 42–46. These arguments should be rejected. The district court’s decisions to admit Dr. Gold’s testimony and to deny a new trial are both “reviewed for an abuse of discretion.” Hodges v. Mack Trucks, Inc., 474 F.3d 188, 194, 202 (5th Cir. 2006). “‘District courts enjoy wide latitude in determining the admissibility of expert testimony, and the discretion of the trial judge and his or her decision will not be disturbed on appeal unless manifestly erroneous.’” Id. at 194.

Boh Bros. argues that Dr. Gold’s testimony “was all about the facts of the case” and that she consistently testified about Boh Bros. without naming it. BBEB 42. But not one sentence of Dr. Gold’s testimony was intended to describe the facts of this case. She did not witness the interactions between Wolfe and Woods and gave no testimony describing what occurred on Wolfe’s crew during 2006. Rather, she testified as an expert on the investigations by social scientists into what same-sex harassment looks like when it is motivated by failure to conform with gender stereotypes instead of by sexual attraction. See 5C-2194–96 (she participated extensively in peer-review process for scientific journals). The questions she was asked and the answers she gave made this clear. The first three substantive questions Dr. Gold answered set the tone, focusing on “the primary studies and articles on the topic of same-sex harassment within [her] field,” i.e., the “primary scientific studies.” 5C-2198. Further, throughout the direct examination, EEOC counsel made clear that he was asking about what “the science say[s],” what “the studies address,” and what “the social science shows.” 5C-2200, 2202–04.

Boh Bros. is not criticizing Dr. Gold’s testimony as an inaccurate summary of the relevant research. (The company could of course have offered expert testimony summarizing the research differently, but it did not do that.) Rather, the company maintains that her testimony was unduly prejudicial because the allegations in this case in some respects match closely what the relevant research has revealed.

Yet the company offers no authority holding that an expert witness is prohibited from summarizing the relevant research because the research findings match the allegations in the case. That what Wolfe did is typical of what often happens in similar contexts and cases does not prevent Dr. Gold from testifying about what often happens. On the contrary, it made her testimony particularly relevant and helpful to the jury in evaluating testimony about Wolfe’s conduct. Many laypersons serving on juries will have had little experience with or knowledge about the type of sexual harassment that occurs in unique, male-dominated work settings like police departments or oil-rig crews. Social scientists have studied this phenomenon, and Dr. Gold’s summary of that research assisted the jury in understanding the allegations in this case. See, e.g., EEOC v. Morgan Stanley & Co., 324 F. Supp. 2d 451, 462 (S.D.N.Y. 2004) (allowing EEOC to present expert testimony by social scientist “about gender stereotypes, and about how these stereotypes may have affected decisions at [defendant]”); Duling v. Gristede’s Operating Corp., 267 F.R.D. 86, 95 (S.D.N.Y. 2010) (allowing plaintiff to present expert testimony by social scientist about gender stereotypes).

Boh Bros. also objects to Dr. Gold’s testimony on the ground that it in effect constituted a jury instruction. But Dr. Gold did not instruct the jury on the meaning of “sexual harassment” as a legal term. She repeatedly told the jury that the definition of “sexual harassment” among social scientists is different from and broader than its definition in the legal realm. See, e.g., 5C-2207 (“[H]arassment in the social … scientist’s eyes … may not constitute legal sexual harassment … [and] is not limited to the legal concept of sexual harassment. … Legal sexual harassment is a subset of the great universe of the behaviors that can constitute sexual harassment [as a social scientist defines it].”).

Boh Bros. complains that the trial court “provided no guidance to the jury regarding what constitutes same-sex harassment.” BBEB at 45. The company is in a poor position to complain about the jury instructions. It did not ask the court to define “same-sex harassment” for the jury, and it consented when the district court told the parties it was not inclined to give a special instruction on gender-nonconformance evidence. 5C-2268–70.

Boh Bros. points out that the district court at first granted its motion in limine to exclude Dr. Gold’s testimony under Daubert and later expressed concern about whether her testimony “‘might have put her in the jury box as another fact finder.’” BBEB 42–44. But this hardly implies that the court abused its discretion in admitting her testimony. To the contrary, it simply shows that the district court gave serious consideration to the company’s concerns about her testimony. A district court is permitted to change its mind on an issue during the course of litigation, and this Court reviews the district court’s final decision. Moreover, the district court carefully instructed the jury that it was “not required to accept” Dr. Gold’s expert testimony, and it was up to the jury “to decide whether to rely on it.” 5C-2322.

Given all this, Boh Bros. has not met the stringent standard for showing that the district court committed prejudicial error sufficient to compel a new trial of this entire case.

III. The district court properly awarded injunctive relief and did not abuse its discretion in crafting it.

As the company concedes, BBEB 46, district courts in this circuit that find a Title VII violation must enter injunctive relief unless the employer has shown by clear and convincing evidence that future violations are not reasonably probable. EEOC v. Serv. Temps Inc., 679 F.3d 323, 338 & n.51 (5th Cir. 2012) (“‘[A]bsent clear and convincing proof of no reasonable probability of further noncompliance with the law a grant of injunctive relief is mandatory.’” (quoting James v. Stockham Valves & Fittings Co., 559 F.2d 310, 354 (5th Cir.1977), and citing EEOC v. Rogers Bros., Inc., 470 F.2d 965, 966–67 (5th Cir. 1972))). Boh Bros. has not met that burden, and the court’s injunction should therefore be upheld.

The company maintains that since the Commission identified only one victim and the company terminated the harasser and adopted a new policy that actually prohibits sexual harassment, it proved that future violations are not reasonably probable. BBEB at 48–49. But the district court also had before it evidence that potentially offensive sexual epithets, comments, and conduct were common at the defendant’s worksites, 5C-1871 (Duckworth testified that such conduct “goes on on jobs every day”), and that the company saw in this no risk of unlawful conduct. John Lipani, the company’s vice president and EEO officer, testified that even if Wolfe did everything Woods said he did, “I think it is not sexual harassment.” 5C-2035. Lipani also testified that Duckworth’s handling of Woods’s complaint was “completely consistent with defendant’s policies.” 5C-2057. The district court could therefore reasonably have concluded that only through issuance of an injunction could future hostile environments be prevented. See EEOC v. Massey Yardley Chrysler Plymouth, Inc., 117 F.3d 1244, 1254 (11th Cir. 1997) (need for injunction shown in part by fact that “no one at the company seems to have admitted to any wrongdoing”).

Moreover, the district court crafted an injunction appropriately tailored to rectify the violations in this case and prevent similar illegal acts from recurring. Boh Bros. complains that it will be difficult and expensive to train all its employees since they are scattered around the state in small groups. Perhaps training all the employees would be easier if they all worked in the same place. However, training all the employees is especially important since potentially offensive conduct is widespread and Boh Bros. management evidently devotes little or no attention to monitoring what happens at the company’s scattered worksites.

The Court should accordingly affirm the district court’s injunction as well within its discretion. See, e.g., Service Temps, 679 F.3d at 338 (affirming injunction where employer failed to prove by clear and convincing evidence that future violations were not reasonably probable); EEOC v. KarenKim, Inc., 698 F.3d 92, 100–01 (2d Cir. 2012) (district court abused its discretion in denying injunctive relief after jury found hostile work environment).

Conclusion

The Commission respectfully asks this Court to affirm the judgment that the district court entered on the jury verdict and affirm its decision to award injunctive relief.

[1] In stating the standard of review for a denial of judgment as a matter of law, Boh Bros. fails to acknowledge that this Court must review the record evidence – and any inferences drawn from it – in the light most favorable to the Commission and to the jury’s verdict. BBEB at 14. See infra pp. 19–20 (discussing proper standard of review). In its statement of facts, Boh Bros. summarizes the record evidence in the light most favorable to the company. The Commission here is providing pertinent facts in the light most favorable to the verdict.

[2] There was testimony that Wolfe and the crew regularly used “very foul language.” 5C-2237, 1990. Woods testified, however, that Wolfe harassed him significantly more often and more offensively than Wolfe harassed his co-workers. See infra, pp. 11–12. The jury was free to credit (and obviously believed) Woods’s testimony on this point.

[3] Boh Bros. states that “Wolfe called Woods and other employees ‘gay,’ ‘faggots,’ [and] ‘queer’ ….” BBEB at 8 (emphasis added). Wolfe testified to the contrary, 5C-1940, and the jury was free to credit that testimony.

[4] See testimony quoted infra at pp. 51–52. Thus, the company’s representation that “Wolfe did not consider Woods to be effeminate,” BBEB at 8, misrepresents what the record, viewed in the light most favorable to the jury verdict, reveals.

[5] Boh Bros. alleges that the Sixth Circuit’s decision in Wasek v. Arrow Energy Services, Inc., 682 F.3d 463 (6th Cir. 2012), “confirmed that the three methods of proof set forth in Oncale were the means available to the plaintiff.” BBEB at 21. But Wasek did not clearly hold that the three Oncale routes are exclusive. Indeed, it was presumably without the power to do so, since the circuit had earlier held that a plaintiff can prove that discrimination occurred because of sex with evidence of “failure to conform to sex stereotypes.” Smith v. City of Salem, Ohio, 378 F.3d 566, 572 (6th Cir. 2004) (reversing order granting employer summary judgment); see also Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 764 (6th Cir. 2006) (plaintiff alleging same-sex harassment can show sex discrimination with evidence of failure to “conform to traditional gender stereotypes in an[ ] observable way at work”); Kerman v. C.I.R., F.3d , 2013 WL at 1397267, at * 14 (6th Cir. Apr. 8, 2013) (“‘A panel of this Court cannot overrule the decision of another panel.’”).

Further, it is not clear from the opinion in Wasek that the plaintiff even tried to prove sex discrimination with gender-nonconformance evidence. (Rather, he contended his harasser was bisexual, but he offered no admissible evidence showing that. 682 F.3d at 468.) Thus, while Wasek appeared to require the plaintiff to “fit” his evidence into one of Oncale’s three paths, 682 F.3d at 468, that likely was because the plaintiff pressed no alternative theory, and not because the Sixth Circuit decided that those were the only possible methods for proving same-sex harassment claims.

[6] As Boh Bros. points out, BBEB at 21, Judge Dennis’s partial dissent in Love suggests that the majority’s opinion could be read to imply that the majority there had “misread[] Oncale’s examples” as “rigid formulae by which every same-sex sexual harassment claim must survive or perish.” 349 F. App’x at 907 (Dennis, J., dissenting in part). For the reasons stated in the text, the Commission believes that the majority opinion in Love ruled merely that the plaintiff had failed to prove sex discrimination using the first Oncale route. Members of the panel in this case apparently agreed. See slip op. at 5 (“Our court has not before been presented the question whether Oncale’s enumerating the above three forms of same-sex harassment excludes other possible forms, such as the alleged sex stereotyping, which is at issue in this appeal. Rather, our prior cases have involved only Oncale’s first form of same-sex harassment, proposals of sexual activity.”) (quoting, among other cases, Love).

[7] Other courts have not interpreted the GVR as Boh Bros. does. See, e.g., Glenn, 663 F.3d at 1318 n.6 (citing Belleville for its gender-stereotypes holding and describing it as “vacated on other grounds”); Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1223 (10th Cir. 2007) (same). The Seventh Circuit – from whence Belleville came – certainly has not read Oncale as prohibiting sex-stereotyping evidence in same-sex harassment cases. See Shepherd, 168 F.3d at 1009.

[8] For that matter, if stereotyping evidence is an impermissible method of proving same-sex harassment, it is far from clear that it would be deemed any more acceptable in a same-race harassment scenario. Thus, under Boh Bros.’ vision of Title VII, a darker-skinned black man could mock a lighter-skinner subordinate mercilessly and incessantly for “not being black enough” – apparently without repercussion.

[9] It thus was hardly surprising that the Commission did not seek to introduce evidence that Woods objectively failed to conform to gender-based norms.

[10] The anti-discrimination policy Boh Bros. refers to, BBEB 309, nowhere mentions the word “harassment.” App-11.

[11] When Woods told Duckworth what Wolfe had been doing to him, Duckworth’s reaction was that Wolfe’s actions could not possibly be unlawful because that type of conduct, he testified, “goes on on jobs every day” at the company’s worksites. 5C-1871.

[12] Duckworth also failed to tell Lipani, the company’s EEO officer, about Woods’s complaint, which he was supposed to do. 5C-2026–27, 2141–42.

[13] Higgins, 194 F.3d at 261 n.4 (1st Cir.); Nichols, 256 F.3d at 874–75 (9th Cir.); Bibby, 260 F.3d at 264 (3d Cir.); Smith, 378 F.3d at 572 (6th Cir.); Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Cir. 2005).

Statement of Jurisdiction

Statement of the Issues

Nature of the Case and Course of Proceedings

Statement of the Facts [1]

Summary of Argument

Argument

I. The district court properly denied Boh Bros.’ Rule 50(b) motion for judgment as a matter of law.

A. Standard of review

B. Plaintiffs can prove that same-sex harassment occurred “because of” the victim’s sex with gender-nonconformance evidence.

1. Longstanding Title VII precedent supports the use of gender-stereotyping evidence in same-sex hostile work environment cases, and this evidentiary theory is merely one method of showing the harassment occurred “because of sex.”

2. Boh Bros.’ arguments against allowing gender-nonconformance evidence to show sex discrimination are contrary to Supreme Court and court of appeals precedent and should be rejected by this Court.

3. The panel erred in making gender nonconformance an objective test.

C. The Commission offered legally sufficient evidence that Wolfe harassed Woods “because of” Woods’s sex.

D. The Commission offered legally sufficient evidence that the harassment was sufficiently severe or pervasive.

E. Boh Bros. did not establish a Faragher/Ellerth affirmative defense as a matter of law.

F. The district court properly denied judgment as a matter of law on punitive damages.

II. The district court properly denied the company’s motion for a new trial.

III. The district court properly awarded injunctive relief and did not abuse its discretion in crafting it.

Conclusion

Certificate of Service

Certificate of Compliance with Rule 32