Locker Room Environment – Lawsuit Waiting to Happen

12/02/2013

There’s a lot in the press lately about the “locker room” atmosphere of NFL teams; some content of which is more shocking than others. But the issues are not just sports related. Many of the players and ex-players have passed those issues to the side noting the “sanctity” of the football locker room, and other players and ex-players of other sports have talked about similar environments in their locker rooms.

Construction job sites share some similarities. They are largely male populated, and can be stereotypically a “boys will be boys” atmosphere, with lots of verbal jousting and counter-jousting; some in better taste than others. It’s a rough and tumble environment with high testosterone personalities, many larger than life. Field conduct can’t really be legally actionable can it?

In a recent decision about that type of locker room banter between a male iron worker employee and another male iron worker supervisor, the U.S. Court of Appeals for the Fifth Circuit reaffirmed the answer as a strong yes. The case is E.E.O.C. v. Boh Bros. Constr. Co., L.L.C. 2013 WL 5420320, 120 Fair Empl. Prac. Cas. (BNA) 15 (5th Cir. 2013), in which by a 10-6 whole court decision held that the construction company had illegally subjected its employee to severe or pervasive harassment based on gender stereotypes after the employee (a male) was the specific and frequent target of various “rough” and “mouthy” comments (by another male).

Some of those included that the employee was a “pus___y,” a “princess,” and a “fag__ot,” and subjected to other comments and physical simulations about which the employee complained, but the company took no action to address the employee’s concerns and actually later suspended the employee without pay. While the frequency and extent of the taunts to the employee clearly crossed the line, this case re-enforces that harassment should not be tolerated to any degree, and the time of chalking up bad behavior to a “boys will be boys” atmosphere – even male to male – is long gone.

One of the many lessons from this case is that all complaints of harassment, regardless of gender, must be taken seriously and fully investigated, with appropriate action taken, and all of it properly documented so that each step and decision can be later explained if questions are raised about them. Policies are important, but they can’t just be on the shelf to say they exist; they must be enforced and followed. Even in the rough and tumble world of iron work!

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