Same-Sex Harassment After Boh-Brothers

Because Equal Employment Opportunity Commission v. Boh Brothers Construction Company ostensibly represents the first faithful application of the gender-stereotyping theory in the context of same-sex harassment litigation, additional courts may elect to abandon the objective-evidence standard in favor of adopting the Fifth Circuit’s subjective-perception test. Employers, therefore, must resist the temptation to dismiss Boh Brothers as a legal aberration confined to the Fifth Circuit and instead take steps to prepare for the possibility of a legal environment in which overtly masculine men and patently feminine women may assert viable same-sex harassment claims. By eliminating the requirement that harassees exhibit readily observable, objectively gender-nonconforming characteristics in the workplace while at the same time mandating that courts conduct a rigorous, fact-intensive inquiry into the idiosyncratic beliefs and perceptions of individual harassers, the subjective-perception test would seem to portend a significant expansion of employer liability.