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Court rules against employer in same-sex sexual harassment case

As most people in San Antonio know, workplace sexual harassment is illegal. And, sexual harassment does not only include the inappropriate conduct of men directed at women, or the inappropriate conduct of women directed at men. Sexual harassment can also be commited by a woman against another woman, or by a man against another man.

Many same-sex sexual harassment cases involve gender stereotypes. A male supervisor, for example, might verbally abuse a male worker, who the supervisor perceives to be too feminine. That is exactly what has happened in a case that was recently decided by the Fifth Circuit Court of Appeals.

In that case, the U.S. Equal Employment Opportunity Commission had filed a sexual harassment lawsuit against a construction company, accusing a supervisor there of sexually harassing an employee.

According to the EEOC, a superintendent at the company thought that a male ironworker was not very manly; he thought he was too feminine. So, he verbally abused this ironworker and taunted him and exposed himself to him.

A jury agreed with the EEOC that the employer had illegally subjected a worker to sexual harassment. But, that verdict was later overturned by a panel of judges that found that the superintendent's actions did not meet the bar set by federal employment law - because the superintendent harassed the ironworker on the basis of gender stereotypes, not on the basis of sex.

An appeals court has now reversed the judges' findings, reinstating the jury's verdict, ruling that harassing someone because he or she fails to, or is perceived to fail to, fit into gender stereotypes is illegal. That is a form of sexual harassment.

The Fifth Circuit Court of Appeals covers Texas, and this means that harassment on the basis of gender stereotypes is illegal here.

Source: U.S. Equal Employment Opportunity Commission, “Fifth Circuit Court of Appeals Reinstates Same-Sex Harassment Verdict Against Boh Bros. Construction Co.,” Sept. 30, 2013

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