In its Oncale decision, the U.S. Supreme Court recognized that same-sex sexual harassment falls within Title VII's prohibitions against sex discrimination. However, the Court said that in order to be actionable, such harassment must be because of the victim's gender. This obviously applies where the harasser is sexually attracted to the victim, but federal courts have struggled with the applicability of Title VII to cases where the victim is teased or harassed by someone of the same gender, but without any evidence of sexual attraction
Last month, in an en banc opinion, the Fifth Circuit Court of Appeals extended same-sex sexual harassment claims to situations where the victim is singled out due to failure to conform to accepted gender stereotypes. In EEOC v. Boh Bros. Construct. Co., the plaintiff was an iron worker who alleged that his supervisor constantly used crude language and gestures to indicate that he considered the plaintiff to be feminine and homosexual. The initial Fifth Circuit panel overturned a jury verdict for the plaintiff, concluding that the claim was not actionable under Title VII, because the plaintiff could not show that he was singled out for this behavior due to his gender. There was no indication that the supervisor was sexually attracted to the plaintiff.
The full Fifth Circuit reversed the decision in part, concluding that gender stereotyping evidence is sufficient to support a claim of sexual harassment under Title VII. By directing comments and behavior toward the plaintiff due to his perceived lack of masculinity, the supervisor was acting in a manner based on the plaintiff's sex. The constant references to the plaintiff as feminine demonstrated that the conduct was closely linked to his gender.
Title VII does not prohibit employment discrimination based on sexual orientation. In states that also do not prohibit employment discrimination on this basis, this decision could provide an avenue for some harassment and discrimination claims. If the plaintiff can demonstrate that the claim is not based on sexual orientation discrimination, but rather on the employer's insistence that the employee conform to a gender stereotype, Title VII could provide a remedy not otherwise available under federal or state law.