At first (and second) glance, the United States Court of Appeals for the 5th Circuit's recent en banc opinion in Equal Employment Opportunity Commission v. Boh Brothers Construction appears to be just what the courts always deny doing: imposing a civility code upon a workplace. A more dispassionate reading of the opinion lends itself to this simple conclusion: there are limits to what a jury will countenance, even among men at a construction site.

Since 1986, the U.S. Supreme Court has recognized the concept that severe or pervasive workplace harassment may violate Title VII of the Civil Rights Act. Moreover, since 1998, the Supreme Court has acknowledged that same-sex harassment may also be unlawful.

There had been, until Boh Brothers, three recognized evidentiary paths to show same-sex harassment:

  • The harasser was homosexual and motivated by sexual desire;
  • The harassment was framed in such sex-specific and derogatory terms as to make clear the harasser was motivated by general hostility to the presence of a particular gender in the workplace; or
  • There was direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.

The Boh Brothers case did not fit into any of those pigeonholes. It concerned an all-male crew on a construction site. Needless to say, the site was an undeniably vulgar place with the workers regularly expressing themselves with very foul language. That general workplace conduct, however, was not the court's concern.