Wet Ones: Conservative Fifth Circuit Adopts Gender-Stereotyping Theory of Same-Sex Sexual Harassment

In an interview conducted by the Equal Employment Opportunity Commission (EEOC) during its investigation, Chuck Wolfe confessed that he teased Kerry Woods so mercilessly because he had admitted to using Wet Ones -- antibacterial hand wipes -- instead of toilet paper, which Wolfe viewed as "kind of gay" and "effeminate." These are the bare-bones facts that produced the subject of this paper: EEOC v. Boh Brothers Construction Co LLC, an en banc decision of the US Court of Appeals for the Fifth Circuit handed down in September, 2013. The conservative Fifth Circuit joined other circuits that have recognized gender stereotyping as a way to prove a same-sex sexual harassment claim. The majority also affirmed the jury's conclusion that Boh Brothers could not escape liability for the harassment using the affirmative defense crafted by the US Supreme Court, which will be explained later. The court's conclusion regarding the applicability of the gender stereotyping theory in this setting is important.