Fifth Circuit Grants En Banc Review of Sex Stereotyping Case

Michael Maslanka has a terrific post at Work Matters about the case.  With his permission I am reposting it here:

On March 28, the 5th U.S. Circuit Court of Appeals granted the EEOC's Petition for Rehearing En Banc in Equal Employment Opportunity Commission v. Boh Brothers Construction Co. LLC. The petition asks the en banc court to decide this issue: Does a sexual stereotyping claim exist under Title VII, and, if it does, what is the standard for establishing it?

Sexual stereotyping happens when an employee suffers an adverse employment action for failure to conform to gender norms. In other words, as the employer and society define male and female roles, the female employee is not feminine enough, or the male employee is not masculine or macho enough.

The panel decision dodged the issue of whether sexual stereotyping violates Title VII., writing that a decision on that issue could wait for another day, because there was insufficient evidence that sex played a role in any employment decision. Thus, the court reversed a big judgment awarded to the plaintiff and rendered.

On the sexual-stereotyping issue, the panel suggested that, if such a claim is viable, it rests upon whether the plaintiff objectively failed to act in conformity with the norm — as opposed to the argument the EEOC advanced in its brief, which was that what matters in "stereotyping cases" is whether the harasser subjectively perceived that the plaintiff failed to conform to a gender norm.

Now, a majority of the 5th Circuit has decided that it’s time to answer the objective v. subjective issue on gender conformity. Why? Who knows? Some members of the court could be thinking, “Let’s spike this claim now, while we have enough conservative judges on the court.” Others jurists may be thinking, “If not now, when? It’s a claim our sister circuits recognize.”

We'll see. Just know that this is a big case.

rb