Sometimes history turns on the strangest of fulcrums. One of this decade’s most important court rulings on gender, for instance, hinged on the use of Wet Ones.
The case began in 2006 on a 5.4-mile length of Interstate 10 that crosses Lake Pontchartrain, near New Orleans, where a 28-year-old ironworker and novice structural welder named Kerry Woods was getting bullied by his supervisor, Chuck Wolfe. Both men worked for one of the largest building firms in New Orleans, Boh Brothers Construction Company, which had been hired to repair the bridge over Pontchartrain after Hurricane Katrina.
Wolfe was a swaggering, mouthy boss. He dropped f-bombs and called anyone who complained about the weather a “pussy.” As often happens in ultra-masculine work environments, there was a strong undercurrent of mock-homosexual horseplay on the job site. Wolfe was known to sneak up on his crew mates and jokingly hump them from behind.
Things escalated for Woods when he made an offhand admission to his co-workers one day during a break: that he preferred Wet Ones—pre-moistened antibacterial wipes—to toilet paper. Wolfe, the boss, considered this to be an embarrassingly effeminate thing to say out loud, and he never let Woods forget it, routinely calling Woods names like “princess,” “faggot,” and “motherfucker.” The conflict came to a head that summer, when Wolfe made off-color remarks about Kerry Woods’ wife and newborn daughter. Woods fumed, holding back tears behind his sunglasses.
Many Americans will soon find themselves with a lot of catching up to do. It’s one thing for an airline executive to avoid language about being a wuss; it’s another thing for a football coach to do so.
Woods complained about Wolfe’s behavior to another Boh Brothers manager, who sent Woods home without pay, then had him re-assigned to a different construction site. The new site didn’t require as much welding, and before long, Kerry Woods was let go. He eventually took a job more than four hours from home, requiring him to live apart from his family. Wolfe “didn’t have to change nothing about his life,” Woods later protested, “and I had to change everything.”
Outraged, Woods looked for a remedy and filed a complaint with the local office of the Equal Employment Opportunity Commission, the federal agency responsible for enforcing Title VII of the 1964 Civil Rights Act’s prohibition against job discrimination. The EEOC has a gigantic backlog of cases—75,000 of them—making it hugely selective about which complaints it pursues, let alone brings to court. But in Woods’ grievance against Boh Brothers, the EEOC saw an important principle at stake, and it vigorously pursued the case.
The language in Title VII is, by Washington standards, brief and open-ended. It prohibits job discrimination on the basis of sex, but the term sex is not defined, and the word harassment never even appears. It has been left to the courts to invent their own traditions. To that end, the EEOC’s argument in Woods’ case was predicated on two Supreme Court Title VII rulings. One was Price Waterhouse v. Hopkins, decided in 1989, when the Supreme Court sided with a female executive who had brought in tens of millions of dollars in business—more than her all-male peers—yet was denied being made partner because she was deemed too aggressive and mannish. The second case, Oncale v. Sundowner, decided unanimously in 1998, confirmed that men could bring sexual harassment claims against other men.
The lawsuit against Boh Brothers built naturally on these precedents. This time, the accusation was that one straight man had imposed gender-conforming demands on another straight man. The EEOC argued that Woods had a right, under Title VII, to be biologically male yet behave in a stereotypically feminine manner. As Tanya Goldman, an EEOC lawyer representing Woods, explained in her opening remarks to a New Orleans federal courtroom in 2011, “If a person discriminates against an employee because the employee does not conform to gender stereotypes, that is also sex discrimination.” (Woods declined to be interviewed for this article, and Boh Brothers and Wolfe did not respond to requests for comment.)
Southeast Louisiana juries are not famous for embracing expansive interpretations of the Civil Rights Act. Luckily for the EEOC, the Boh Brothers’ main witness was there to help them overcome any possible hesitation. Chuck Wolfe proved truculent on the stand, insisting, for instance, on the distinction between the pejoratives “motherfucker” and “dumb motherfucker.” When it came to the legal nuances of gender stereotyping, the very heart of the case being made against Boh Brothers by the EEOC, Wolfe was supremely self-sabotaging. At one point, he attempted to disavow any anti-gay sentiment in having called Woods a “faggot” by explaining that the real problem with Woods using Wet Ones was that it was effeminate. “Keep that to yourself if in fact that’s what you do,” he told the jury.
Some of Wolfe’s workplace behaviors were less classifiable but still unhelpful to his defense. Woods recounted taking a nap in his car and being startled awake to the sound of Wolfe rattling his door handle. “If your door wouldn’t have been locked,” Wolfe supposedly told him, “my dick probably would have been in your mouth.” The jury awarded Woods a total of $451,000 in back pay and damages. Boh Brothers then appealed, but a 10-6 majority of the full Fifth Circuit Court of Appeals ultimately affirmed the jury’s finding, shocking longtime observers of the court, one of the nation’s most conservative.
In hindsight, Boh Brothers had obvious reasons to lose. Many people would rightly find Wolfe’s behavior disgusting. The decision at the appellate level also flowed logically from precedents set by the Supreme Court. But the case was both odder and more significant than most news outlets seemed to notice.
The oddity was the technical narrowness of the original complaint. As the conservative legal scholar Amy Wax points out, the Civil Rights Act would not have protected Woods against “a broad range of workplace harassment based on other characteristics—being fat, being ugly, being married to a fat ugly person, having a huge ugly birthmark, or a silly tattoo, living with your mother, sleeping with a felon, being a cuckold, driving a purple Cadillac, having six fingers or one arm.” Wolfe was free under the Civil Rights Act to be a bully; he just fatefully chose to call Woods a “pussy.”
The significance was in the verdict’s potential reach. Most Americans are at least vaguely aware that imposing explicit gender-based expectations on women in the workplace is unacceptable, even legally actionable, and states are rapidly adopting laws to protect gay and transgender employees from abuse. But what’s less well known is that decisions like the one in New Orleans also ban the imposition of gender norms on straight men.
Telling someone “don’t be a pussy,” “man up,” or “grow a pair” was a daily occurrence on my high school wrestling team, as it probably is in most locker rooms. All-male settings tend to encourage a rough-and-tumble jocularity. Kerry Woods’ case struck at the heart of a worldview and set of behaviors that many people take for granted.
Recognizing this, Judge Edith Jones, a Reagan-appointed member of the Fifth Circuit, included a satirical memo in her dissent in the Boh Brothers case entitled “Etiquette for Ironworkers.” It lists 10 rules for employees of a company like Boh Brothers, including that they “not engage in any competitive activity, like lifting heavy objects, on the worksite,” since that might “create a sense of unmanly inferiority for non-participants.” Jones sarcastically added, “Poking fun at a worker for drinking a diet soda, not being able to eat a raw jalapeno, using ‘Wet Ones’ or ‘Purell’ to clean himself … may get us sued and you in serious trouble.”
Jones was exaggerating, of course. It’s doubtful that anyone at the EEOC wants the full force of the federal government brought down upon workers ribbing each other for using Purell. And the Civil Rights Act applies only in instances of particularly severe, sustained harassment of the sort experienced by Woods. At the same time, the underlying logic of the Boh Brothers verdict places a question mark next to the very term masculinity.
Legally speaking, the hard-hat worker on a bridge in Louisiana will soon have to be as sensitive to gender stereotyping as a white-collar worker in a New York high-rise.
In the 1960s, second-wave feminists such as Betty Friedan and Gloria Steinem concerned themselves with equal representation and equal pay for women. But their more radical feminist contemporaries like Kate Millett and Shulamith Firestone, some of whose ideas would be taken up by the gay rights movement, laid out a more extreme vision. “The end goal of feminist revolution must be … not just the elimination of male privilege but of the sex distinction itself,” wrote Firestone in 1970. In this view, only a complete re-orientation of public and private life, predicated on the erasure of gender norms, would bring justice. Increasingly, courts have been receptive to this point of view.
It’s a trend that will offer workplace protection to many Americans who never had it previously. That it’s being driven at the federal level is especially important to gay and transgender Americans, who can still legally be fired on the basis of sexual orientation in 29 states and of gender identity in 32 states. Since Oncale, gay and transgender employees have won a number of Title VII gender-stereotyping cases at the appellate level. Human resources guidelines of corporations like Apple and American Airlines now explicitly forbid gender stereotyping.
But many Americans will soon find themselves with a lot of catching up to do. It’s one thing for an airline executive to avoid language about being a wuss; it’s another thing for a football coach to do so. In traditionally testosterone-heavy professions—the military, construction, the trading floor, the NFL—macho banter is the norm, with strong cultural expectations of “manliness.” Now, a pit boss telling a worker to “man up” is committing a lesser version of the same offense that formed the basis of the complaints against Boh Brothers in court.
How well will we adjust to these new norms? Same-sex marriage doesn’t much affect heterosexual marriages. But the new rulings on gender stereotyping promise to affect all jobs. Legally speaking, the hard-hat worker on a bridge in Louisiana will soon have to be as sensitive to gender stereotyping as a white-collar worker in a New York high-rise. That’s a major change, and it deserves more notice. Many people will be helped. Some will be confused. And the battles over sex and gender in the workplace will doubtless continue.
Lead photo: (Photo: Bettmann/Corbis)
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