EEOC, Boh Brothers Agree to Resolve Same-Sex Harassment Case for $125,000

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By Kevin P. McGowan  

Feb. 28 --A federal district court in Louisiana has approved a $125,000 consent judgment resolving an Equal Employment Opportunity Commission same-sex harassment suit against a New Orleans construction firm that last year produced a significant federal appeals court decision under Title VII of the 1964 Civil Rights Act, the EEOC announced Feb. 27 (EEOC v. Boh Bros. Constr. Co., E.D. La., No. 09-6460, consent judgment entered 2/26/14).

Under the consent judgment signed by Judge Ivan L.R. Lemelle, Boh Brothers Construction Co. will pay $125,000 in compensatory damages to Kerry Woods, a former employee whose allegations that a male crew leader repeatedly harassed him and the company inadequately responded to his complaints led to the EEOC suit.

Following a 2011 trial in the U.S. District Court for the Eastern District of Louisiana, a jury ruled for the EEOC on the sexual harassment claim, awarding Woods $451,000 in back pay and compensatory and punitive damages (61 DLR A-3, 3/30/11). Lemelle subsequently reduced the damages award to $300,000 to conform with the Title VII damages cap, allocating $50,000 to compensatory damages and $250,000 to punitive damages.

The judge in 2011 also ordered injunctive relief that required Boh Brothers' chief executive officer to notify all employees about the verdict and remind them the company doesn't tolerate sexual harassment or retaliation and would take appropriate disciplinary action against those who violated the policy. The court ordered Boh Brothers not to rehire Chuck Wolfe, the alleged harasser, for the duration of the injunction.

But in 2012, a U.S. Court of Appeals for the Fifth Circuit panel vacated the judgment for the EEOC and Woods, ruling Boh Brothers was entitled to judgment as a matter of law because the EEOC failed to prove the facts necessary to support the sex stereotyping theory on which its Title VII claim was based ( 689 F.3d 458, 115 FEP Cases 946 (5th Cir. 2012); 146 DLR A-3, 7/30/12).

The panel declined to rule whether a Title VII same-sex harassment claim can ever be based on a gender stereotyping theory, instead ruling the EEOC failed to prove Wolfe's alleged harassment of Woods fit within that legal framework.

Fifth Circuit Restored Ruling for EEOC

The EEOC successfully petitioned for review by the full Fifth Circuit. Last year, the Fifth Circuit by a 10-6 vote vacated the panel decision and mostly affirmed the district court judgment for the EEOC, reversing only the punitive damages award ( 731 F.3d 444, 120 FEP Cases 15 (5th Cir. 2013); 191 DLR A-10, 10/1/13).

The Fifth Circuit majority said offensive remarks and conduct based on gender stereotypes can be evidence of unlawful sex discrimination under Title VII and the EEOC produced sufficient evidence Woods was harassed for not being “manly” enough to support the jury's verdict.

But the appeals court also said that although Boh Brothers engaged in intentional discrimination, the EEOC failed to show the employer acted with the “malice or reckless indifference” to Title VII rights necessary for a punitive damages award.

The Fifth Circuit's ruling sparked four dissenting opinions, with Judge Edith Hollan Jones objecting that the majority affirmed the jury verdict without “hard proof of sexually-motivated harassment” and the majority opinion enabled a “government-controlled workplace speech code.”

In a separate dissent, Judge E. Grady Jolly said the court majority should “call [the alleged harassment] for what it is: immature and gutter behavior between and among male co-workers. And then drop it.”

Injunctive Relief Stands

After the Fifth Circuit remanded to the district court for recalculation of damages, the EEOC and Boh Brothers reached agreement the company would pay Woods $125,000 in compensatory damages. The EEOC on Feb. 3 submitted to the court its proposed order for a consent judgment.

“The EEOC's recent record in winning jury trials like this one is remarkable, and the full Fifth Circuit here reaffirmed the critical part juries play in deciding discrimination cases,” EEOC General Counsel Lopez said in a statement.  


The order signed by Lemelle and filed Feb. 26 provides that Boh Brothers will pay Woods $125,000 within 14 days of entry of judgment. The court will retain jurisdiction “for a reasonable period” to enforce the judgment and the EEOC and Boh Brothers waive any right to appeal, the order provides.

The order indicates that Lemelle's original 2011 judgment, including the injunctive relief, remains intact except for the terms changed to comply with the Fifth Circuit's en banc opinion.

“The EEOC's recent record in winning jury trials like this one is remarkable, and the full Fifth Circuit here reaffirmed the critical part juries play in deciding discrimination cases,” EEOC General Counsel David Lopez said in a Feb. 27 statement. “This resolution remains faithful to the jury's verdict by providing meaningful relief to Mr. Woods and helping to prevent Boh Brothers from discriminating again.”

Representing Boh Brothers, attorney Walter W. Christy told Bloomberg Feb. 28 the company believes the Fifth Circuit panel in 2012 “got it right,” as did the six dissenters from the appeals court's en banc opinion.

Boh Brothers considered taking the matter further to the U.S. Supreme Court but company executives ultimately decided to “put it behind” them and to “move on” by reaching the agreement with the EEOC, said Christy, who is with Coats Rose Yale Ryman & Lee in New Orleans.

The Fifth Circuit vacated any punitive damages against Boh Brothers, a point the EEOC neglected to mention in its announcement, Christy said.

Paul D. Ramshaw in Washington, Gregory T. Juge in New Orleans and James P. Sacher in Houston represented the EEOC. In addition to Christy, Erin Wedge Latuso of Cotten Schmidt & Abbott in New Orleans also represented Boh Brothers.


To contact the reporter on this story: Kevin P. McGowan in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

Text of the consent judgment is available at

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