EEOC v. Boh Brothers

by Walter Olson on October 2, 2013

EEOC v. Boh Brothers is a new Fifth Circuit en banc decision allowing liability on a theory of hostile workplace environment sex discrimination arising from crude and aggressive locker-room banter in an all-male workplace (on facts differing somewhat from those in Oncale v. Sundowner, the 1998 Supreme Court case countenancing such liability). The dissent by Judge Edith Jones, p. 46 at footnote 3, cites my “Sentence First, Verdict Afterward,” from the July issue of Commentary magazine, on the federal government’s unhealthy interest lately in developing legal doctrines that pressure private institutions into adopting speech codes aimed at protecting listeners’ sensitivities.

Don’t miss the “Etiquette for Ironworkers” parody legal memo on p. 58, either. How many dissents include a parody legal memo?

{ 6 comments }

1 Rich 10.02.13 at 11:27 am

So, note to self, do not take a job in the Fifth Circuit.

2 Hugo S. Cunningham 10.03.13 at 6:42 am

I am not usually an enthusiast for “wildcat strikes,” but in some cases that might be an effective response to oppressive speech codes imposed by outside pressure. The strikers might have better chance of success if they direct their picketing activity in ways to pressure those with the power to rescind the speech codes.

3 Curmudgeonly Ex-Clerk 10.03.13 at 2:20 pm

The dissents strike me as ridiculous. Jerry Smith, who seldom misses an opportunity to get something badly wrong, solemnly intones that the majority “take[s] a deep bow at the altar of the twin idols of political correctness and social engineering.”

From the majority opinion, we know that Wolfe:

(a) routinely referred to Woods as “pussy,” “princess,” and “faggot”;

(b) frequently mimed anal sex with Woods when Woods was bent over on the jobsite;

(c) exposed his penis to Woods on multiple occasions while urinating and accompanied said exposure with a smile and handwave.

As documented by the majority, the foregoing was not the only objectionable conduct by Wolfe. Wolfe himself testified that some of his conduct towards Wood resulted from his determination that Woods’ use of wetwipes was “kind of gay” and “feminine.”

If your superintendents are conducting themselves in the same fashion as Wolfe, even in a rough and tumble work environment, you should expect legal troubles to follow. Even the company’s own internal investigation concluded that Wolfe’s conduct was unprofessional.

If disallowing colleagues from simulating the performance of anal sex in the workplace is genuflecting at the altars of political correctness and social engineering, sign me up.

4 MattS 10.03.13 at 4:40 pm

I am not familiar with the facts of this case, but if it is truly as Curmudgeonly Ex-Clerk describes it this case would hardly seem to be one that is pushing the boundaries of the law.

5 Hugo S. Cunningham 10.04.13 at 9:07 am

What CEC picked up from reading the judgement does sound disgusting. I had skipped direct to the parody on p. 58, and did not realize that the sustained vulgarity was directed, with malice, at one particular person.
In part, my too-easy embrace of the parody was driven by my years in the military. Paraphrasing a lady lieutenant in 1981, “I have no patience with delicate ladies complaining about foul language in the military. Of course there’s foul language in the military. If they can’t deal with it, they should find another line of work.”
It has long been a problem in workplace friction: what if the aggressive jerk is one of your most productive workers, while his victim is a marginal producer? At other times, the jerk might not be productive, but is protected by civil service or union rules, or friendship with a manager.

6 MattS 10.04.13 at 11:35 am

“what if the aggressive jerk is one of your most productive workers, while his victim is a marginal producer?”

The harassment is likely detracting from the productivity of not only the victim, but at a minimum the harasser and more likely the entire crew. You tell him to knock it off and not just because of the risk of expensive lawsuits.

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