The Fifth Circuit has granted rehearing en banc (2013 WL 1276022) in EEOC v. Boh Brothers, 689 F.3d 458 (5th Cir. 2012), in which a panel of that court had overruled a jury verdict for a male plaintiff who alleged sexual harassment based on gender nonconformity in violation of Title VII. The panel found that the evidence was insufficient that the nonconformity triggered the supervisor’s vulgarity. The plaintiff alleged that he was subjected to “raw homophobic epithets and lewd gestures.” The appeals court, however, characterized the supervisor as a “world class trash talker” and ruled that the evidence did not support the jury verdict of gendered harassment. The court did not reach the broader question of ”whether sex stereotyping is a cognizable form of same-sex harassment under Title VII.”
In a gratuitous footnote, the panel of three judges stated that
To be clear, even in the straightforward discrimination (as opposed to sexual harassment) context, permissible and impermissible sex stereotyping are separated by degree. An employer is not prohibited from requiring some degree of conformity with what is generally expected in the context of the job. For example, an employer may require a certain conformity of dress, and it is difficult to conceive that an employer would act unlawfully by prohibiting men from wearing dresses, heels, lipstick, etc.
This is potentially an important case because it may become the vehicle for another circuit to weigh in on whether same-sex harassment violates Title VII when based on gender stereotyping, which is usually expressed in anti-gay insults (regardless of whether the plaintiff is gay or, sometimes, is even thought to be gay). All other circuits that have ruled on this point have accepted that it is a viable claim. A Fifth Circuit ruling that agrees with the other Courts of Appeals will further cement the understanding that anti-gay harassment in the workplace can be actionable under Title VII. If the court disagrees with that theory, however, it will create a split in the circuits and an opportunity for the Supreme Court to resolve the issue.