_________________________________________ No. 11-30770 _________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. BOH BROTHERS CONSTRUCTION COMPANY, L.L.C., Defendant-Appellant. ___________________________________________________ On Appeal from the United States District Court for the Eastern District of Louisiana (2:09-cv-6460) Hon. Ivan L.R. Lemelle, Presiding __________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION BRIEF AS APPELLEE ___________________________________________________ P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel DANIEL T. VAIL Acting Assistant General Counsel PAUL D. RAMSHAW Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., NE, Room 5SW18K Washington, DC 20507 Paul.Ramshaw@eeoc.gov (202) 663-4737 Statement on Oral Argument The Commission believes oral argument would assist the Court since this case raises important legal issues, including whether a Title VII plaintiff alleging a hostile environment can show that the harassment occurred "because of sex" with evidence that it was motivated by a perceived failure to conform to gender stereotypes. Table of Contents Statement on Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . i Statement of Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of the Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 Statement of the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 I. The Evidence at Trial . . . . . . . . . . . . . . . . . . . . . . . . . 4 II. Proceedings Below . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 I. The district court's denial of Boh Bros.' rule 50(b) motion should be affirmed, as there is sufficient evidence to support the jury's liability finding. . . . . . . . . . . . . . . . . . . . . 18 A. The Commission offered sufficient evidence that Wolfe harassed Woods because of sex. . . . . . . . . . . . . . . . . 20 B. Boh Bros. forfeited any objection to the admission of most of the Commission's evidence demonstrating that Wolfe acted on the basis of gender stereotypes, and forfeited its legal challenge to the Commission's use of the gender- stereotyping theory. . . . . . . . . . . . . . . . . . . . . . 24 C. The district court properly admitted gender-stereotype evidence and properly allowed the jury to rely on it to find that Wolfe harassed Woods because of sex. . . . . . . . . .26 D. The EEOC offered sufficient evidence that the harassment was severe and/or pervasive. . . . . . . . . . . . . . . . . . .40 E. Boh Bros. did not establish a Faragher/Ellerth affirmative defense as a matter of law. . . . . . . . . . . . . . . . . . . 43 II. The district court's denial of Boh Bros.' rule 50(b) motion should be affirmed, as there is sufficient evidence to support the jury's award of punitive damages. . . . . . . . . . . . . . . . . . 47 A. The Commission offered sufficient evidence of intentional discrimination and reckless indifference. . . . . . . . . . . . 48 B. Boh Bros. failed to establish its "good-fath" affirmative defense as a matter of law. . . . . . . . . . . . . . . . . . . 54 III. The district court did not abuse its discretion in denying a new trial, because it did not abuse its discretion in admitting Dr. Gold's testimony. . . . . . . . . . . . . . . . . . . . . . . . . 57 IV. The district court did not abuse its discretion in awarding injunctive relief. . . . . . . . . . . . . . . . . . . . . . . . . . . .65 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Table of Authorities Federal Cases Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). . . . . . . . . . . . . . . 66 Arbaugh v. Y & H Corp., 444 F. Supp. 2d 693 (E.D. La. 2006). . . . . . . . . 52 Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473 (5th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . 44, 46 Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . 30, 37 Black v. Pan America Laboratories, L.L.C., 646 F.3d 254 (5th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . 18 Brown v. Bryan County, Okla., 219 F.3d 450 (5th Cir. 2000). . . . . . . . . . . 18 Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). . . . . . 19, 43, 48 Dandan v. Radisson Hotel Lisle, No. 97-8342, 2000 WL 336528 (N.D. Ill. Mar. 28, 2000) (unpublished). . . . . . . . . . . . 38 Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005). . . . . . . . . . . . 31 Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 188 F.3d 278 (5th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . 54. 56 Doe by Doe v. City of Belleville, Ill., 119 F.3d 563 (7th Cir. 1997), vacated, 523 U.S. 1001 (1998). . . . . . . . . . . . . . . . . . . . . . 31, 36-37 Duling v. Gristede's Operating Corp., 267 F.R.D. 86 (S.D.N.Y. 2010). . . . . . . . . . . . . . . . . . . . . . . . . .63 EEOC v. Federal Express Corp., 180 F. App'x 865 (11th Cir. 2006). . . . . . 68-69 EEOC v. General Lines, Inc., 865 F.2d 1555 (10th Cir. 1989). . . . . . . . . 68 EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539 (9th Cir. 1987) . . . . . . 69-70 EEOC v. Harris Chernin, Inc., 10 F.3d 1286 (7th Cir. 1993). . . . . . . . . . . 69 EEOC v. Massey Yardley Chrysler Plymouth, Inc., 117 F.3d 1244 (11th Cir. 1997). . . . . . . . . . . . . . . . . . . . . 67-68, 69 EEOC v. Morgan Stanley & Co., 324 F. Supp. 2d 451 (S.D.N.Y. 2004). . . . . .62-63 EEOC v. Siouxland Oral Maxillofacial Surgery Associates, L.L.P., 578 F.3d 921 (8th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . 68 EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 318 (4th Cir. 2008) . . . . . . 35 EEOC v. WC&M Enterprises, Inc., 496 F.3d 393 (5th Cir. 2007). . . . . . . . . 43 Etsitty v. Utah Transit Authority, 502 F.3d 1215 (10th Cir. 2007). . . . . . 37 Faragher v. City of Boca Raton, 524 U.S. 775 (1998). . . . . . . 19, 44, 48, 65-66 Farpella-Crosby v. Horizon Health Care, 97 F.3d 803 (5th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . 41-42, 55 Garriot v. NCsoft Corp., 661 F.3d 243 (5th Cir. 2011). . . . . . . . . . . . 57 Glenn v. Brumby, ___ F.3d ___, 2011 WL 6029978 (11th Cir. Dec. 6, 2011). . . . . . . . . . . . . . . . . . . . . 28, 30, 38 Hatley v. Hilton Hotels Corp., 308 F.3d 473 (5th Cir. 2002). . . . . . . . .47, 56 Hernandez v. Yellow Transport, Inc., 641 F.3d 118 (5th Cir. 2011). . . . . . 40 Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . 31 Hodges v. Mack Trucks, Inc., 474 F.3d 188 (5th Cir. 2006). . . . . . . . . 57 Houston Chronicle Publishing Co. v. City of League City, Tex., 488 F.3d 613 (5th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . 65 Huss v. Gayden, 571 F.3d 442 (5th Cir. 2009). . . . . . . . . . . . . . . 60-61 Hyatt v. Hunt Plywood Co., Inc., 297 F.3d 405 (5th Cir. 2002). . . . . . . . . 44 Jackson v. Quanex Corp., 191 F.3d 647 (6th Cir. 1999). . . . . . . . . . . . 35 Jenson v. Eveleth Taconite Co., 130 F.3d 1287 (8th Cir. 1997). . . . . . . . . 61 Jimenez v. Wood County, Tex., 660 F.3d 841 (5th Cir. 2011). . . . . . . . . . . 26 Kolstad v. American Dental Association, 527 U.S. 526 (1999). . . . . . . . . 48-51 La Day v. Catalyst Technology, Inc., 302 F.3d 474 (5th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . 19, 34 Lauderdale v. Texas Department of Criminal Justice, 512 F.3d 157 (5th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . 45-46 Lewis v. Heartland Inns of America, L.L.C., 591 F.3d 1033 (8th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28-31, 36 Love v. Motiva Enterprises LLC, 349 F. App'x 900 (5th Cir. 2009). . . . . . . . . . . . . . . . . . . . . 38-39 Love v. Motiva Enterprises, LLC, No. 07-5970, 2008 WL 4286662 (E.D. La. Sept. 17, 2008) (unpublished). . . . . . . . . . . . 51 Lynch v. Baylor University Medical Center, No. 05-931, 2006 WL 2456493 (N.D. Tex. Aug. 23, 2006) (unpublished). . . . . . . . . . . . 51 McBeth v. Carpenter, 565 F.3d 171 (5th Cir. 2009). . . . . . . . . . . . . . . 18 Medina v. Income Support Division, N.M., 413 F.3d 1131 (10th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . 30, 35 Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986). . . . . . . . . 19, 29 Miller v. CIGNA Corp., 47 F.3d 586 (3d Cir. 1995). . . . . . . . . . . . . . . 28 Mims v. Carrier Corp., 88 F. Supp. 2d 706 (E.D. Tex. 2000). . . . . . . . . 37-38 Moore v. KUKA Welding System & Robot Corp., 171 F.3d 1073 (6th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . 53 Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . 30, 36 Oiler v. Winn-Dixie La., Inc., No. 00-3114, 2002 WL 31098541 (E.D. La. Sept. 16, 2002) (unpublished). . . . . . . . . . . . 52 Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . passim Ortiz v. Jordan, 131 S. Ct. 884 (2011). . . . . . . . . . . . . . . . . . . . . 26 Pedroza v. Cintas Corp., 397 F.3d 1063 (8th Cir. 2005). . . . . . . . . . . . 35 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). . . . . . . . . . . . 27-32, 68 Primiano v. Cook, 598 F.3d 558 (9th Cir. 2010). . . . . . . . . . . . . . . . . 59 Puckett v. United States, 129 S. Ct. 1423 (2009). . . . . . . . . . . . . . . 24 Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221 (10th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . 67 Romano v. U-Haul International, 233 F.3d 655 (1st Cir. 2000). . . . . . . . . 54 Runyon v. Applied Extrusion Technologies, Inc., 619 F.3d 735 (7th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . 70 Shepherd v. Comptroller of Public Accounts, 168 F.3d 871 (5th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . 42 Shepherd v. Slater Steels Corp., 168 F.3d 998, 1009 (7th Cir. 1999). . . . . . . . . . . . . . . . . . . . . 35. 42 Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004). . . . . . . . . 31, 36 Smith v. Liberty Mutual Insurance Co., 569 F.2d 325 (5th Cir. 1978). . . . . . . . . . . . . . . . . . . . . . . . 37 Smith v. Xerox Corp., 602 F.3d 320 (5th Cir. 2010). . . . . . . . . . . . . . . 51 Spearman v. Ford Motor Co., 231 F.3d 1080 (7th Cir. 2000). . . . . . . . . . . .32 Tompkins v. Cyr, 202 F.3d 770 (5th Cir. 2000). . . . . . . . . . . . . . . 24-25 United States v. Simmons, 470 F.3d 1115 (5th Cir. 2006). . . . . . . . . . . . 60 Williams v. Gen. Motors Corp., 187 F.3d 553 (6th Cir. 1999). . . . . . . . . . .35 Wood v. GCC Bend, LLC, 422 F.3d 873 (9th Cir. 2005). . . . . . . . . . . . . . .70 Zimmermann v. Associates First Capital Corp., 251 F.3d 376 (2d Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . .54 Federal Statutes and Rules 28 U.S.C. §1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. §1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. §1343(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. §1345. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. §1981a(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 42 U.S.C. §§2000e et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. §2000e-2(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 19 42 U.S.C. §2000e-5(g)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 64 Fed. R. Civ. P. 50(b). . . . . . . . . . . . . . . . . . . . . . . . . . . passim Fed. R. Civ. P. 51(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Fed. R. Civ. P. 59. . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Fed. R. Evid. 103(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Fed. R. Evid. 702. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .59 Fed. R. Evid. 704. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Statement of Jurisdiction The EEOC brought this action to enforce Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., and the district court accordingly had subject matter jurisdiction under 28 U.S.C. §§1331 (federal question), 1343(a)(4) (civil rights), and 1345 (U.S. as plaintiff). The district court entered judgment on the verdict for the Commission on March 28, 2011, App-4, R-59,<1> resolved the defendant's post-judgment motions on June 27, 2011, App-9, R-93, and granted the EEOC injunctive relief in an order dated August 18, 2011, App-6, R- 103. These orders together disposed of all the parties' claims. Boh Bros. filed a timely notice of appeal on August 19, 2011. App-2, R-104. This Court therefore has appellate jurisdiction under 28 U.S.C. §1291. Statement of the Issues 1. Whether the record contains sufficient evidence to support the jury's verdict of liability. 2. Whether a plaintiff in a "same-sex" harassment case can prove that the harassment happened "because of sex" with evidence that the perpetrator harassed the victim because the victim failed to conform to the perpetrator's gender stereotypes. 3. Whether the record contains sufficient evidence to support the jury's award of punitive damages. 4. Whether the district court abused its discretion in refusing to grant the defendant's motion for a new trial, where the basis of the motion was that the district court abused its discretion in admitting the EEOC's expert testimony. 5. Whether the district court abused its discretion in awarding injunctive relief. Statement of the Case Boh Bros. appeals from the final judgment entered by the United States District Court for the Eastern District of Louisiana (Lemelle, J.) in this Commission action enforcing Title VII. The EEOC filed its complaint in September 2009 alleging that Boh Bros. violated Title VII when Chuck Wolfe, the superintendant of a bridge maintenance crew, created a hostile environment by harassing his subordinate, Kerry Woods, because of his sex, and Boh Bros. failed to prevent and correct this harassment. R-1. In March 2011, after a three-day trial, the jury found Boh Bros. liable and awarded compensatory and punitive damages. App-3. The EEOC filed a motion seeking injunctive relief, and the district court granted it. R-60, App-5-6. Boh Bros. filed post- judgment motions for judgment as a matter of law, a new trial, and remittitur. R-67, 68, 77. The district court denied these motions, except for granting remittitur to comply with the applicable statutory caps on damages. App-9. Boh Bros. filed a timely appeal. App-2. Statement of the Facts I. The Evidence at Trial<2> Kerry Woods is an iron worker and structural welder. USCA5 1732 ("5C-1732"). Boh Bros. hired Woods in November 2005, 5C-1730, and assigned him to work on crews repairing the Twin Spans bridges after Hurricane Katrina, 5C-1787, 2121-22. In January 2006 the company transferred Woods to a bridge maintenance crew. 5C-1733. About five employees worked on this crew under the leadership of Tim Carpenter, the foreman, and Chuck Wolfe, the superintendant. 5C- 1735, 1877, 2163. Wolfe had the authority to fire and discipline the employees under him and to request that they be transferred. 5C-1910- 13. The maintenance crew worked in relative isolation, 5C-1981-83, except that they sometimes worked near or with employees of Volkert Construction Services, a company that the state had retained to inspect the bridge and set priorities for the Boh Bros. maintenance crew. 5C- 1980-81, 2233, 2235. Boh Bros. submitted no evidence showing that company managers with supervisorial authority over Wolfe visited the sites where the crew worked to monitor Wolfe's performance or conduct. There was testimony that Wolfe and the crew regularly used "very foul language," "everything you can imagine." 5C-2237, 1990. "[A] lot of ...words that we're not supposed to say ... went back and forth all the time." 5C-2025-26. They "ribbed each other" and "picked on each other." 5C-1990, 1925. Sex-related horseplay occurred commonly. 5C-1937, 2128. However, beginning sometime between February and April 2006, Wolfe started treating Woods differently than the other workers. 5C- 1736 (in or before April), 5C-2085 (maybe in February or March). The harassment took various forms. Wolfe addressed Woods almost every day with degrading sex-based epithets like "faggot," "queer," "gay," "pussy," and "princess." 5C-1737-39, 1804, 1932, 1937, 1940-41.<3> Two to three times a week, while Woods was bent over to perform his assigned tasks, Wolfe came up close behind him and simulated having anal intercourse with him. 5C-1744.<4> Woods found this embarrassing and started looking over his shoulder before bending over, afraid that Wolfe would "hump" him again or touch him. 5C-1744-45. On one occasion Woods felt physically threatened by Wolfe. Wolfe called him names, and Woods made an abrasive retort designed to stop the abuse. 5C-1803, 1739. Wolfe responded by approaching Woods and asking, "What did you say?" Woods feared that Wolfe was about to attack him. 5C-1803. Wolfe exposed his penis to Woods about ten times. 5C-1745. Wolfe urinated off (and sometimes on) the bridge and called out Woods's name while urinating so that when Woods responded by turning toward his superintendant, Woods saw his penis. 5C-1745. On some of these occasions, Wolfe waved at Woods and smiled when Woods saw his penis. 5C-1745. Woods sometimes went to his car to relax or nap during breaks. 5C-1739. He often locked the car doors to protect himself from Wolfe's harassment. 5C-1741. One day Woods woke up from such a nap to find Wolfe messing with his car door. Woods opened the door and saw Wolfe apparently closing his pants zipper. Wolfe said, "If your door wouldn't have been locked, my dick would have probably been in your mouth." 5C-1739-40. Woods told Wolfe one time that he sometimes used Wet Ones at home instead of toilet paper. 5C-1743. Wolfe believed that real men do not use Wet Ones and taunted Woods about being gay and feminine because he used them. 5C-1743. Woods complained to his foreman Tim Carpenter two or three times about Wolfe. 5C-1747-48. He complained that he "didn't like how [Wolfe] talked to me." 5C-1747. He chose not to complain about everything Wolfe did because he feared he would get in trouble. 5C- 1748. He did not quit his job because he needed to support his family. 5C-1748. One day in November 2006, Woods went to the Volkert office trailer and asked Dudley Boudreaux, a senior inspector, to see his timesheet. 5C-1750, 2233. Boudreaux did not let Woods look at the time sheet, 5C-1750, in part because there was only one timesheet, which recorded the hours worked by all the crew members, 5C-2239. Without protest, Woods left. 5C-1750, 2240. Very soon after that, Boudreaux allegedly told Wolfe that Woods had asked to see the timesheet hours recorded for other employees. 5C-1998-99, 2241.<5> Boh Bros. allegedly considered looking at other employees' timecards a firing offense. 5C- 2052. Wolfe phoned Wayne Duckworth, who was the general superintendant for Boh Bros.' Heavy Highway Department and Wolfe's supervisor. 5C-1999, 1848-49, 1885. He told Duckworth that he did not want Woods on his crew and he "didn't care for" Woods because Woods was too sensitive and "different" and "didn't fit in." 5C-1857-58.<6> That day or the next morning Wolfe told Woods to go see Duckworth. 5C-1749-51,1999. Wolfe testified that at that point he was "done with him [Woods]." 5C-1999. Wolfe told Carpenter that he had "gotten rid of" Woods. 5C-2175. Woods went to see Duckworth at Boh Bros.' Almonaster yard and asked him if he had any work for him, but Duckworth said no. 5C-1752- 53. Woods complained to Duckworth about Wolfe's harassment. 5C- 1753. He told Duckworth everything Wolfe said to him, and he told him that Wolfe would "hump" him and expose his penis to Woods. 5C-1753, 1851. The conversation lasted about 20 to 30 minutes. 5C-1753, 1851. Woods also told Duckworth that Wolfe was probably stealing company gas and fishing for shrimp on company time, but the conversation focused principally on the harassment. 5C-1754, 1756. Duckworth did not mention anything to Woods about his having asked to see other employees' timesheet entries. 5C-1756. Duckworth testified that when Woods told him what Wolfe had said and done, he (Duckworth) did not believe it was sexual harassment "because this kind of thing goes on on jobs every day." 5C-1871. Duckworth sent Woods home. 5C-1756. Woods was home for three days and received no pay for that period.<7> 5C-1757. On the fourth day Woods returned to work at the Almonaster yard. 5C-1758. The yard was 25 to 35 miles further away from Woods's home, and Boh Bros. cut Woods's pay by more than a dollar an hour. 5C-1758-59. Duckworth testified that he investigated Woods's harassment allegations. 5C-1856. He talked with Carpenter and Wolfe for about ten minutes each, but he may not have gotten around to discussing the allegations with Wolfe until several months had passed. 5C-1856-57. He did not document his investigation, 5C-1856, and he did not notify John Lipani, the company's general counsel and EEO officer, about the allegations. 5C-2026-27. By contrast, Boh Bros. hired a private detective agency to investigate the allegations that Wolfe had stolen company gas and used company equipment. 5C-1891-92. The agency billed the company for almost 85 hours. 5C-2214. After the company received the agency's report, it decided to demote Wolfe temporarily, 5C-1868, 1969, but it did not reduce his pay, 5C-1970. Duckworth testified that he told Wolfe he was being demoted for using a company forklift and for some safety violations. 5C-1869. Duckworth testified that the demotion "was not concerning Mr. Woods," 5C-1868, and that he (Duckworth) did not tell Wolfe that he was being demoted because of his treatment of Woods, 5C-1870. Wolfe regularly directed certain epithets at Woods that he did not direct at other crew members. Notably, Wolfe conceded that he called only Woods "queer" and probably called only Woods "faggot." 5C-1940. Woods testified that Wolfe was "attacking" him with these epithets. 5C- 1738. There was no evidence that Wolfe exposed himself to other crew members. See 5C-2109 (crew member Bobby Boswell testified he never saw Wolfe expose himself to anyone). Wolfe may have "humped" another crew member, 5C-2125, and called another crew member "pussy," 5C-2114, but there was no evidence that any other crew member was subjected to as frequent, diverse, and intense harassment as Woods was. The Commission offered evidence that Wolfe harassed Woods as severely as he did because Wolfe viewed Woods as insufficiently masculine. As noted, Wolfe told Duckworth that he "didn't care for" Woods because Woods was sensitive and "different" and "didn't fit in." 5C-1857-58. Wolfe testified that he believed that using Wet Ones "seemed kind of gay," and that when he called Woods "gay" and "faggot," he was saying Woods was feminine. 5C-1933. To help the jury understand the nature of same-sex harassment that sometimes occurs in all-male environments, the EEOC also offered the expert testimony of Dr. Liza Gold. Dr. Gold is a medical-school professor, board-certified psychiatrist, and author of a treatise on sexual harassment, and she has considerable experience analyzing and critiquing articles about sexual harassment published by social scientists in peer-reviewed journals. 5C-2194-96. At trial, Dr. Gold summarized what such researchers have learned about same-sex harassment motivated by non-conformance with gender stereotypes (as opposed to harassment motivated by sexual desire). According to Dr. Gold, gender-stereotype harassment is based on the victim's perceived non-conformance with stereotypical masculine behavior and occurs most frequently in all-male settings, particularly when the group is isolated and not subject to supervision. 5C-2199-201. Dr. Gold gave five illustrative examples of such groups, the third of which was construction workers. 5C-2204-05. Dr. Gold testified that in these scenarios, the harasser often insults and degrades the victim by stating or implying he is gay or feminine. 5C-2200-01. Dr. Gold explained that accusing a man of being gay is particularly humiliating and degrading in some sectors of society. 5C-2205. By using such epithets, Dr. Gold testified, the harasser asserts his power over the victim and seeks to bond with the other men around their shared masculinity, and to exclude the victim from this circle. 5C-2200-01. Wolfe's harassment had a substantial effect on Woods's psychological well-being and family life. He found Wolfe's behavior disgusting and felt embarrassed, humiliated, stressed out, and depressed. 5C-1739, 1745, 1772. While working under Wolfe, he tried to avoid him and worried constantly about the harassment and losing his job. 5C-1744-45, 1772. Woods's wife testified that the harassment left him unhappy, irritable, tense, and disinclined to get out of bed in the morning or play with their children in the evening. 5C-2084-85. II. Proceedings Below The parties tried the case before a jury for three days. During the charge conference, Boh Bros. did not object to the court's proposed instructions on the Commission's hostile environment claim-including the instruction explaining that the harassment had to occur because of Woods's sex. 5C-2328-30. In fact, the district court stated that it had considered adding an instruction dealing specifically with evidence of gender stereotyping, but had decided not to give it unless the parties objected. 5C-2268-69. Boh Bros. consented to not giving that instruction. 5C-2269-70. Boh Bros. made a rule 50(a) motion, 5C-2216- 26, and the district court denied it, 5C-2231. The jury returned a verdict for the Commission on its hostile work environment claim. App-3. After the district court entered judgment on the jury verdict, R-59, the EEOC requested that the district court order injunctive relief, R-60. After a hearing, R-94, 100, the district court granted the motion and entered an injunction. R-102, 103. The injunction requires Boh Bros. to create, implement and post a sexual harassment policy meeting certain requirements; send Boh Bros. employees a letter notifying them of the verdict; designate a representative to receive and investigate complaints; train all its employees about sexual harassment and retaliation for at least two hours twice during the compliance period; submit reports to the EEOC and allow the agency to monitor compliance; and post a notice about this case and how it was resolved. App-6. Boh Bros. sought judgment as a matter of law under rule 50(b), arguing that the EEOC failed to present sufficient evidence to support the liability finding (including especially the because-of-sex requirement) or the compensatory or punitive damage awards, and that the company had proven a Faragher/Ellerth affirmative defense to liability and a Kolstad affirmative defense to punitive damages. R-77.<8> The company alternatively sought a new trial under rule 59, maintaining that the court's admission of Dr. Gold's testimony was prejudicial error. R-67. The district court denied the company's rule 50(b) and rule 59 motions. App-9, R-93. Summary of Argument The jury in this case found Boh Bros. liable for violating Title VII because it was responsible for the sex-based hostile work environment that Wolfe created by harassing Woods. This Court reviews a jury verdict especially deferentially and affirms it unless no reasonable jury could have reached it based on the record evidence. When the evidence here is viewed in the light most favorable to the verdict, it amply supports the verdict, and this Court should therefore affirm. Boh Bros. argues that the Commission failed to offer sufficient evidence to support the jury's liability finding. The Court should reject this argument because it is based on a summary of the evidence in the light most favorable to the company-i.e., a summary of the evidence that violates the standard of review. When the record is reviewed properly, substantial evidence supports the jury's findings that the harassment occurred because of sex and that it was sufficiently severe and/or pervasive. The company also maintains that it established its Faragher/Ellerth affirmative defense as a matter of law, but the jury found against the company on both prongs of that defense and ample evidence supported those findings, as well. Boh Bros. also contends that the district court erred in allowing the EEOC to satisfy the because-of-sex requirement with gender- stereotype evidence. However, the company failed to preserve this argument. And in any event, the district court's ruling on this issue is correct, as evidenced by two Supreme Court decisions, numerous court of appeals decisions, and a dearth of authority supporting the company's position. Boh Bros. maintains that the Commission failed to introduce enough evidence to support the award of punitive damages and that it established its Kolstad affirmative defense. In fact, the EEOC offered sufficient evidence of the company's reckless indifference, and ample evidence supported the jury's implicit rejection of the company's good- faith-efforts defense. Boh Bros. further argues that the district court should have granted it a new trial because admitting the testimony of the EEOC's expert witness was prejudicial error. The company objects to Dr. Gold's testimony because she allegedly violated the district court's order limiting the scope of her testimony. However, Dr. Gold complied fully with the court's instructions limiting her testimony. The district court thus acted well within its discretion both in admitting Dr. Gold's testimony and in refusing to grant Boh Bros.' motion for a new trial. Finally, the district court acted well within its discretion in awarding injunctive relief, which is presumptively appropriate in cases in which Title VII has been violated. Here, the jury found Boh Bros. liable for punitive damages (i.e., for acting with malice or reckless indifference), and there is a significant risk that discrimination could recur at the company since Boh Bros. continues to maintain it did nothing wrong here. Thus, there is no basis for concluding that the district court abused its discretion in awarding the injunctive relief the Commission requested. Argument I. The district court's denial of Boh Bros.' rule 50(b) motion should be affirmed, as there is sufficient evidence to support the jury's liability finding. This Court reviews de novo a district court ruling on a motion for judgment as a matter of law, McBeth v. Carpenter, 565 F.3d 171, 176 (5th Cir. 2009), but its "standard of review with respect to a jury verdict is especially deferential." Brown v. Bryan County, Okla., 219 F.3d 450, 456 (5th Cir. 2000). The Court views the evidence and all reasonable inferences that can be drawn from the evidence in the light most favorable to the jury's verdict. McBeth, 565 F.3d at 176. It views the evidence as a whole, but "'disregard[s] all evidence favorable to the moving party that the jury is not required to believe.'" Black v. Pan Am. Labs., L.L.C., 646 F.3d 254, 273 (5th Cir. 2011) (citation omitted). Judgment as a matter of law "should be granted only if 'the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict.'" Id. (citation omitted). Title VII's protection against discrimination because of one's sex, 42 U.S.C. §2000e-2(a)(1), extends to harassment based on sex or gender that is severe or pervasive enough to create an objectively hostile work environment. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986). It is not limited to harassment perpetrated by a member of the opposite sex. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79- 80 (1998); La Day v. Catalyst Tech., Inc., 302 F.3d 474, 477-78 (5th Cir. 2002). An employer is vicariously liable for a hostile environment created by a supervisor, but the employer may establish an affirmative defense by showing (1) that it exercised reasonable care to prevent or promptly correct the harassment, and (2) that the employee-victim unreasonably failed to take advantage of the preventive or corrective opportunities the employer provided. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998). Boh Bros. has appealed the district court's denial of its rule 50(b) motion, arguing that the Commission's evidence was not sufficient to support the jury's finding of liability on the EEOC's harassment claim. Boh Bros. Br. ("BBB") 10-38. However, as set forth below, the Commission offered sufficient evidence to meet the because-of-sex and severe-or-pervasive requirements, and the company failed to establish its Faragher/Ellerth affirmative defense as a matter of law. Accordingly, the district court's denial of Boh Bros.' rule 50(b) motion should be affirmed. A. The Commission offered sufficient evidence that Wolfe harassed Woods because of sex. Here, the jury was properly instructed that to find for the EEOC, it must find that Wolfe harassed Woods because of sex. 5C-2328 ("It is unlawful for an employer to discriminate against an employee because of the employee's sex or gender."). The jury then returned a verdict for the Commission on its hostile work environment claim. Applying appropriate rule 50 standards, the evidence adduced at trial was legally sufficient to support the jury's verdict on this issue. The EEOC introduced substantial evidence that Wolfe harassed Woods because he thought Woods was not "manly." The epithets Wolfe used almost all communicate Wolfe's view that Woods was not manly, because they described him as feminine or effeminate ("pussy" and "princess") or as gay ("queer" and "faggot"). More important, Wolfe acknowledged that "pussy" means a man who is not manly, 5C-1941, and that he called Woods "princess" because he was feminine. 5C-1937. Wolfe also conceded that he called Woods "queer" and "faggot" because he thought Woods was "not manly" and that he was "feminine" because he used wet wipes. 5C-1933, 1935, 1941.<9> Duckworth testified that Wolfe told him he didn't care for Woods because Woods was "different" (and maybe "sensitive") and "didn't fit in." 5C-1858. Further, Dr. Gold summarized the relevant findings in social- science research into same-sex harassment. She testified that gender- stereotype harassment tends to occur more frequently in all-male work groups that are relatively isolated from supervision. 5C-2199-201. Typically, a man who has or wants power over the group picks a person he believes is not "macho" enough and harasses him with epithets implying he is gay or feminine, and with gestures simulating gay sex. 5C-2200-01. This type of harassment is designed to assert the perpetrator's power and to enforce conformity with his gender stereotypes, and the victim typically finds this harassment "particularly humiliating and degrading." 5C-2200-01, 2205. That is precisely the type of evidence the Commission introduced at trial in this case. After considering all this evidence, the jury found that Woods was harassed because of his sex. The evidence presented is legally sufficient to support the jury's verdict, and the district court's denial of Boh Bros.' rule 50(b) motion should therefore be affirmed. Boh Bros. maintains that-aside from Dr. Gold's testimony, which it believes should have been excluded-the EEOC offered only one piece of evidence suggesting that Wolfe harassed Woods because of sex: that Wolfe called Woods "gay" and "faggot" because he believed Woods's practice of using wet wipes was feminine. BBB 32-35, 48. In arguing that the Commission offered only one piece of evidence showing the harassment here was because of sex, Boh Bros. fails to view the evidence, as this Court must, in the light most favorable to the EEOC and the jury verdict, and fails to draw inferences in the agency's favor. The company's argument depends in turn on the company's contention that, except for the name-calling related to Woods's use of wet wipes, Wolfe treated all the crew members pretty much the same. BBB 32, 48, 52. But the Commission offered substantial evidence that Wolfe treated Woods differently. Wolfe testified that he never called any of the other iron workers "queer" and may not have called anyone else "faggot." 5C-1940.<10> There was no testimony that Wolfe addressed the other workers with derogatory epithets as often as he did with Woods. See 5C-1737 (Wolfe did so with Woods probably almost every day). Nor was there testimony that the other workers felt he was "attacking" them when he called them names. See 5C-1738 (when Wolfe used these epithets towards Woods, he was attacking him). Boh Bros. offered no evidence that Wolfe exposed his penis to other workers (and smiled as he did it). See 5C-1845. No evidence suggested that Wolfe ever talked with the other workers about putting his penis in their mouths. See 5C- 1739-40. The jury thus reasonably could have concluded that Wolfe actually singled Woods out for harassment because of his sex. B. Boh Bros. forfeited any objection to the admission of most of the Commission's evidence demonstrating that Wolfe acted on the basis of gender stereotypes, and forfeited its legal challenge to the Commission's use of the gender-stereotyping theory. Boh Bros. argues the district court erred in allowing the jury to base its sex-discrimination finding on evidence of gender stereotyping. BBB 11-23. But the company did not object to the admission of the Commission's gender-stereotype evidence, and it did not object to the relevant portions of the jury instructions. This Court should therefore reject the company's challenge to the EEOC's legal theory. To preserve an objection to evidence allegedly improperly admitted, a party must make a timely objection or motion to strike, "stating the specific ground of objection." Fed. R. Evid. 103(a)(1); see Puckett v. United States, 129 S. Ct. 1423, 1428 (2009) ("If a litigant believes that an error has occurred (to his detriment) during a federal judicial proceeding, he must object in order to preserve the issue. If he fails to do so in a timely manner, his claim for relief from the error is forfeited."); Tompkins v. Cyr, 202 F.3d 770, 779 (5th Cir. 2000) ("[W]hen a defendant fails properly to object to the admission of evidence, we review that admission solely for plain error."). Boh Bros. objected to Dr. Gold's testimony,<11> but it did not object to all the other evidence showing that Wolfe harassed Woods because of Woods's failure to conform to Wolfe's gender stereotypes. It thus cannot now contend that the district court's decision to allow the jury to consider this evidence was harmful error. Boh Bros.' real objection is that the law does not permit a plaintiff to prove same-sex harassment through evidence of gender stereotyping. See BBB 10-24. It contends that "the District Court improperly applied existing law allowing Plaintiff to recover under facts insufficient to support the judgment." Id. at 10. However, Boh Bros. has forfeited this legal argument, as well. Boh Bros. did not argue during the charge conference that the district court should instruct the jury that it could not rely on gender- stereotype evidence to find that Wolfe harassed Woods because of sex. It offered no jury instruction of its own on this question. Under rule 51, a party wishing to preserve an objection to the jury instructions must, at the charge conference, identify clearly the matter objected to and state the grounds for the objection. Fed. R. Civ. P. 51(c)(1); see also Jimenez v. Wood County, Tex., 660 F.3d 841, 844 (5th Cir. 2011) (en banc) (so holding). Here, Boh Bros. failed to preserve any objection that the jury instructions misstate the law on same-sex harassment (or on methods for proving it). It thus should not be allowed now to belatedly use a rule 50(b) motion-which is designed merely to test the legal sufficiency of the evidence-to challenge the Commission's legal theory.<12> C. The district court properly admitted gender- stereotype evidence and properly allowed the jury to rely on it to find that Wolfe harassed Woods because of sex. To be sure, this Court can review jury instructions for plain error. Jimenez, 660 F.3d at 844. But here, the jury instructions on same-sex harassment reflect no legal error. Moreover, even if Boh Bros. did not forfeit its challenge to the Commission's legal theory, the jury was entitled to find that Wolfe harassed Woods because Wolfe believed Woods did not conform to Wolfe's stereotypical perceptions of how men should behave-and that this was harassment because of sex. Thus, even under this Court's de novo review of the proper legal standards that should be applied, the district court's rule 50(b) motion should be affirmed. The Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), established that an employer who discriminates against an employee because the employee failed to conform to a gender stereotype discriminates against her because of her sex in violation of Title VII. Id. at 250 (plurality opinion by Brennan, J.) ("[A]n employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender."), 251 (using "[r]emarks at work that [we]re based on sex stereotypes," Hopkins proved "the employer actually relied on her gender in making its decision"), superseded in part by statute on other grounds, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1074; see also 490 U.S. at 259 (White, J., concurring in the judgment) (Hopkins proved that her gender "was a substantial factor in the adverse employment action") (emphasis in original), 272 (O'Connor, J., concurring in the judgment) ("Hopkins proved that Price Waterhouse 'permitt[ed] stereotypical attitudes towards women to play a significant ... role in its decision not to invite her to become a partner.'") (quoting court of appeals decision) (brackets in original). Six Justices thus agreed that Hopkins's evidence, which relied heavily on partners' comments criticizing her for not being feminine enough, was sufficient to prove that her sex was a substantial factor in her employer's adverse decision. See Glenn v. Brumby, ___ F.3d ___, 2011 WL 6029978, at *4 (11th Cir. Dec. 6, 2011) ("Six members of the Supreme Court agreed that [gender-stereotype] comments were indicative of gender discrimination and held that Title VII barred ... discrimination because of ... gender stereotyping-failing to act and appear according to expectations defined by gender."); Lewis v. Heartland Inns of Am., L.L.C., 591 F.3d 1033, 1038 (8th Cir. 2010) (six Justices agreed that "stereotypical attitudes violate Title VII if they lead to an adverse employment decision"); Miller v. CIGNA Corp., 47 F.3d 586, 595 (3d Cir. 1995) (same). Later, in Oncale v. Sundowner Offshore Services, Inc., the Supreme Court also established that Title VII prohibits actionable sex- based harassment even when the perpetrator and the victim are the same sex. 523 U.S. at 79 ("[N]othing in Title VII necessarily bars a claim of discrimination 'because of ... sex' merely because the plaintiff and the [perpetrator] are of the same sex."). Nothing in Oncale remotely suggests that the gender-stereotyping theory recognized in Price Waterhouse is categorically unavailable in same-sex harassment cases. That is not surprising. The creation or condoning of a hostile work environment is a form of discrimination. Meritor Savings, 477 U.S. at 66. Therefore, the principle from Price Waterhouse that discrimination based on gender stereotypes is actionable sex discrimination applies equally to cases where the discrimination at issue takes the form of harassment. Indeed, even Boh Bros. apparently acknowledges that in light of Price Waterhouse, "[w]ith respect to hostile environment workplace harassment, stereotyping could be used as evidence to prove that the harassment was 'because of sex.'" BBB 23. Taken together then, Price Waterhouse and Oncale provide ample support for the legal theory the Commission pursued in this case. Further, every court of appeals to address the question since Oncale has held, stated, or implied that a plaintiff alleging a hostile environment caused by same-sex harassment (or other discriminatory action) can satisfy the because-of-sex requirement with evidence that the violation was motivated by the victim's perceived failure to conform to gender stereotypes. For example, the U.S. Court of Appeals for the Eleventh Circuit very recently held, in a case alleging discrimination against a transgender female, that "discrimination on the basis of gender stereotype is sex-based discrimination." Glenn, 2011 WL 6029978, at *4. Other courts of appeals have ruled similarly. See Medina v. Income Support Div., N.M., 413 F.3d 1131, 1134-35 (10th Cir. 2005) (stating, in case alleging female-on-female harassment, that hostile environment motivated by harasser's desire "to punish the plaintiff's noncompliance with gender stereotypes" is unlawful); Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 874-75 (9th Cir. 2001) (holding that male plaintiff harassed by male co-workers because they viewed him as effeminate proved his Title VII claim); Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 264 (3d Cir. 2001) (ruling that a "plaintiff may be able to prove that same-sex harassment was discrimination because of sex by presenting evidence that the harasser's conduct was motivated by a belief that the victim did not conform to the stereotypes of his or her gender"); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 261 n.4 (1st Cir. 1999) (after Oncale, the issue of whether same-sex harassment based on gender stereotyping is actionable is "no longer open"); Doe by Doe v. City of Belleville, Ill., 119 F.3d 563, 581 (7th Cir. 1997) ("[A] man who is harassed [by male co-workers] because ... he exhibits his masculinity in a way that does not meet his coworkers' idea of how men are to appear and behave is harassed 'because of' his sex.'"), vacated on other grounds, 523 U.S. 1001 (1998); see also Lewis, 591 F.3d at 1038-41; Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Cir. 2005); Smith v. City of Salem, Ohio, 378 F.3d 566, 571-75 (6th Cir. 2004). No court of appeals has held that a plaintiff alleging same-sex harassment cannot meet the because-of-sex requirement with gender- stereotype evidence. Boh Bros. devotes a substantial portion of its brief to arguing that these court of appeals decisions misinterpreted Price Waterhouse. BBB 17-23. Boh Bros.' first argument is that the issue in Price Waterhouse "was whether there was in fact discrimination, not whether there was discrimination on the 'basis of sex.'" BBB 17 & n.77 (relying on page 232 of Price Waterhouse, which does not support the proposition argued). To be sure, the Court's principal holding dealt with whether and how an employer can escape liability after a plaintiff has proved that sex was a substantial factor in an employment decision. See BBB 18. But that does not detract from the precedential value of the Court's ruling that evidence showing sex stereotyping can satisfy the because-of-sex requirement. If the six Justices had not held that Hopkins had proved discrimination because of sex, their discussions of whether an employer can escape liability would have been dicta, and Boh Bros. agrees that those discussions were not dicta. BBB 18.<13> Boh Bros. next maintains that sex stereotyping is not "a form of discrimination." BBB 18; see also BBB 22-23 (relying on Spearman v. Ford Motor Co., 231 F.3d 1080 (7th Cir. 2000), to support company's argument that harassment based on sex stereotypes "without more ... is [not] discrimination because of sex"). But this is a straw man. The Commission has never argued that sex stereotyping automatically, and without more, violates Title VII. Rather, the Commission maintains that Boh Bros. violated Title VII because Wolfe harassed Woods sufficiently to create an objectively hostile work environment, and that, under Price Waterhouse and the court of appeals decisions cited supra, the jury properly relied on evidence showing gender stereotyping to find that the harassment here occurred because of Woods's sex. Boh Bros.' other principal argument for rejecting the Commission's gender-stereotyping theory is that the Supreme Court in Oncale outlined three evidentiary routes to prove that same-sex harassment occurred because of sex, and gender stereotyping was not one of them. BBB 14-16. Boh Bros. is correct that the Court mentioned three paths that plaintiffs alleging male-on-male harassment could follow to meet the because-of-sex requirement. But the Oncale Court did not state or even imply that the three routes it outlined were the only possible evidentiary paths a plaintiff could follow to prove that same-sex harassment was because of sex. On the contrary, the Court implied that its list of potential routes was not exhaustive. The Court used the phrase "for example" in describing the second route. 490 U.S. at 80. More important, the sentence immediately following the three examples stresses that the plaintiff must meet the because-of-sex requirement "[w]hatever evidentiary route the plaintiff chooses to follow." Id. at 81. If the Court meant the three routes it described to be exhaustive, it would presumably have said instead that the plaintiff must meet the because- of-sex requirement "whichever of these three routes the plaintiff chooses to follow...." Moreover, there is no principled or persuasive basis for the notion that evidence of gender stereotyping is only probative of a sex-based motive where the harasser and the victim are of the opposite sex. There is nothing unique about "same-sex" harassment cases that should render the gender-stereotyping approach inapplicable to such cases. In fact, this Court, in La Day, 302 F.3d at 478, observed that "[t]he Court's focus [in Oncale] was on what the plaintiff must ultimately prove rather than the methods of doing so.'" (citation omitted).<14> Accordingly, and not surprisingly, all the courts of appeals to address this question have agreed that the three routes suggested in Oncale are not exhaustive. See, e.g., Medina, 413 F.3d at 1134-35 (Oncale's "three evidentiary routes ... are not exhaustive") (dictum); Pedroza v. Cintas Corp., 397 F.3d 1063, 1068 (8th Cir. 2005) (describing Oncale's list as "non-exhaustive"); Shepherd v. Slater Steels Corp., 168 F.3d 998, 1009 (7th Cir. 1999) ("[W]e discern nothing in the Supreme Court's decision indicating that the examples it provided were meant to be exhaustive rather than instructive."); cf. Higgins, 194 F.3d at 261 n.4 (post-Oncale, explaining that "the standards of liability under Title VII, as they have been refined and explicated over time, apply to same-sex plaintiffs just as they do to opposite-sex plaintiffs" and thus "a man can ground a claim on evidence that other men discriminated against him because he did not meet stereotyped expectations of masculinity"). In addition, although other decisions involving gender stereotyping may not address the question explicitly, their holdings recognizing the theory in the same-sex context strongly imply that Oncale's three routes could not be exhaustive. See, e.g., Lewis, 591 F.3d at 1038-41; City of Salem, 378 F.3d at 571-75; Nichols, 256 F.3d at 874-75. Boh Bros. makes three points in arguing that the three Oncale routes are in fact exhaustive. Noting that the Supreme Court vacated the Seventh Circuit's decision in City of Belleville, Boh Bros. contends that the "most logical and obvious reason" explaining the Supreme Court's remand in Belleville is the Court's belief that the three routes are exhaustive and its rejection of an evidentiary route based on perceived gender non-conformance. BBB 13. But the Seventh Circuit in Belleville held that the plaintiff stated a viable Title VII claim both because the harassment was sexual in content and because the harassment was motivated by the plaintiff's perceived non-conformance with masculine stereotypes. 119 F.3d at 576, 581. The Supreme Court in Oncale explicitly rejected the first of these two alternative holdings, stating "[w]e have never held that workplace harassment ... is automatically discrimination because of sex merely because the words used have sexual content or connotations." 523 U.S. at 80. It is therefore much more likely that the Supreme Court vacated Belleville because it disagreed with its first holding (that the sexual content of the harassment satisfies the because-of-sex requirement), which it expressly rejected, rather than because it disagreed with its second holding, which relied on Price Waterhouse and which the Oncale Court did not address. See, e.g., Glenn, 2011 WL 6029978, at *5 n.6 (citing Belleville for its gender-stereotypes holding and describing it as "vacated on other grounds"); Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1223 (10th Cir. 2007) (same); Bibby, 260 F.3d at 263 n.5 (remand of Belleville was probably based on its sexual-content holding and not its gender-stereotypes holding). Boh Bros. also relies on Mims v. Carrier Corp., 88 F. Supp. 2d 706 (E.D. Tex. 2000). BBB 14-15. But Mims in turn relied on this Court's decision in Smith v. Liberty Mut. Ins. Co., 569 F.2d 325 (5th Cir. 1978), which was decided two decades before Oncale and over one decade before Price Waterhouse. Mims, 88 F. Supp. 2d at 713. Further, while Mims ruled that the plaintiff also lost because he failed to follow one of Oncale's evidentiary routes, id. at 714-15, since Mims, many courts have rejected the view that these routes are exhaustive. See supra. In any event, this district court decision does not, of course, bind this Court.<15> Boh Bros. also claims that this Court's unpublished opinion in Love v. Motiva Enterprises LLC, 349 F. App'x 900 (5th Cir. 2009), "limited claims for same-sex sexual harassment to the three tests outlined in Oncale." BBB 16. Of course Love is not precedential. 5th Cir. R. 47.5.4. But more important, the decision does not even address whether-let alone hold that-this Court views the three evidentiary paths suggested in Oncale as the only ways to prove that same-sex harassment occurred because of sex. Love quoted the passages from Oncale proposing three evidentiary paths, but since the plaintiff- appellant in Love tried to follow one of those paths, the Love panel had no occasion to consider whether other paths are available. 349 F. App'x at 902. It thus stands as no bar to affirming the district court's ruling upholding the jury's verdict in this case. In sum, contrary to Boh Bros.' contentions, gender stereotyping is hardly "a new method by which to try and demonstrate same-sex harassment...." BBB 34. The Commission's theory of the case is founded on two Supreme Court decisions and a number of court of appeals decisions. Further, the agency offered sufficient evidence to show that Wolfe harassed Woods because of sex under this theory. The jury's verdict for the Commission should be affirmed. D. The EEOC offered sufficient evidence that the harassment was severe and/or pervasive. Boh Bros. also contends that even if the gender stereotyping theory is available to prove same-sex harassment, the EEOC failed to offer sufficient evidence to support the jury's implicit finding that the harassment here was severe or pervasive, BBB 24-27. To the contrary, the record reflects more than ample grounds to sustain the jury's verdict on this element of the Commission's claim. In assessing whether the alleged conduct is severe or pervasive, this Court considers "'all the circumstances,'" including "'the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Hernandez v. Yellow Transp., Inc., 641 F.3d 118, 125 (5th Cir. 2011) (citation omitted). In this case, the jury was specifically instructed on this standard in detail, 5C-2328, and ultimately concluded that it had been satisfied. The jury heard evidence establishing that Wolfe called Woods names like "faggot," "queer," "gay," "pussy," and "princess" almost every day for seven-plus months. 5C-1737-39, 1932, 1940-41, 2009-10. Woods felt embarrassed and humiliated as a result. 5C-1739. Dr. Gold testified that most men find such terms "a particularly humiliating and degrading way of insulting someone," 5C-2205, and that these terms are often used to assert the harasser's power over the victim and exclude the victim from the rest of the all-male group. 5C-2201, 2203-05. In addition, Wolfe "humped" Woods two to three times a week, or about 60 to 90 times in total, 5C-1744. He exposed his penis to Woods about ten times. 5C-1745. On one occasion Wolfe told Woods that if his car door hadn't been locked, Wolfe's "dick would have probably been in [Woods's] mouth." 5C-1739-40. On another occasion, Wolfe acted as if he were about to attack Woods physically. 5C-1803. This conduct occurred quite frequently (combining the epithets and the "humping," at least six times a week for seven-plus months). It was offensive and humiliating. And it involved at least one physical threat. The Commission's evidence therefore supported the jury's verdict that Wolfe's harassment was severe and/or pervasive enough to create an objectively hostile environment and alter the conditions of Woods's employment. See Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 805 (5th Cir. 1996) (harassment was pervasive where harasser frequently commented about plaintiff's alleged proclivity to engage in sexual intercourse, asked plaintiff and/or co-worker two to three times a week whether they had spent the night with a man and "got any," and on numerous occasions threatened to fire plaintiff when she asked him to stop the offensive comments); compare Shepherd v. Comptroller of Public Accounts, 168 F.3d 871, 872-74 (5th Cir. 1999) (following evidence insufficient to show pervasive harassment: over a two-year period, male co-worker once commented about the color of plaintiff's nipples, once commented about the size of her thighs, several times tried to look down her dress or blouse, twice invited her to sit on his lap, and several times rubbed her arm). Boh Bros.' discussion of the evidence on this point, BBB 25-26, is internally inconsistent and ignores the relevant standard of review. For instance, the company asserts that the "humping" gestures were "[t]he only arguable sexual conduct" by Wolfe, but then three sentences later admits that Woods claimed Wolfe exposed himself to him. Id. The company points out that other witnesses did not corroborate the latter accusation, but the issue is whether the jury could find that Wolfe exposed himself repeatedly. Based on Woods's testimony, 5C-1745, it clearly could. It is true, as Boh Bros. notes, that Woods did not testify that Wolfe touched him. The company neglects to mention, however, that Dr. Gold testified that gender-stereotype harassment rarely involves touching. 5C-2203. It is likewise true that Woods never complained to Wolfe that he thought Wolfe's conduct constituted unlawful harassment, but he did try several times to get Wolfe to stop it. And it is true that Woods was able to perform his job satisfactorily in spite of the harassment, BBB 28, but the EEOC did not need to show otherwise. See EEOC v. WC&M Enters., Inc., 496 F.3d 393, 399-400 (5th Cir. 2007) ("No single factor is determinative.... [A] showing that the employee's job performance suffered is simply a factor to be considered, not a prerequisite.") (citations omitted).<16> E. Boh Bros. did not establish a Faragher/Ellerth affirmative defense as a matter of law. Boh Bros. contends that the district court also should have granted its rule 50(b) motion because the company established a Faragher/Ellerth affirmative defense as a matter of law. BBB 35-38. This Court reviews this question de novo. See Hyatt v. Hunt Plywood Co., Inc., 297 F.3d 405, 414 (5th Cir. 2002) (review is "plenary"). To prove its affirmative defense, Boh Bros. had to show (1) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. See Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807. This Court has emphasized that the "Faragher/Ellerth affirmative defense is conjunctive" and "the defendant bears the burden of proving both elements." Aryain v. Wal- Mart Stores Tex. LP, 534 F.3d 473, 483 (5th Cir. 2008). Here, this Court should affirm the district court's denial of Boh Bros. rule 50(b) motion on this issue. The jury was properly instructed with respect to Boh Bros.' affirmative defense and specifically found against Boh Bros. on both prongs of the defense, App-3. The EEOC offered sufficient evidence to support the jury's findings. The Commission offered ample proof at trial showing that Boh Bros. failed to exercise reasonable care to prevent sex-based harassment. While the company had a generic EEO policy, it had no policy defining or even mentioning sexual harassment.<17> It had no written procedures for investigating complaints of harassment, either. 5C-1864, 2021-22. It failed to train Wolfe, a company supervisor, about sexual harassment, and trained Duckworth on the subject for only about five minutes a year. 5C-1863, 1913. Cf. Lauderdale v. Tex. Dep't of Crim. Justice, 512 F.3d 157, 164 (5th Cir. 2007) (if employer's "program designed to avoid, report, and correct instances of sexual harassment, is insufficient or unreasonable," employer cannot prevail on first prong). The EEOC also introduced evidence that Boh Bros. failed to exercise reasonable care to stop the sexual harassment once it occurred. Duckworth's investigation of Woods's allegations was cursory, undocumented, and far from prompt. 5C-1856 (Duckworth spent as little as 20 minutes investigating the complaint and did not document his efforts, and may not have interviewed Wolfe until months after Woods's complaint). Further, Duckworth failed to inform Lipani, the company's in-house counsel and EEO officer, about the allegations. 5C- 2026-27. Cf. Aryain, 534 F.3d at 483 (finding employer failed to establish first prong as a matter of law because evidence suggested employer delayed in responding to victim's harassment complaints). Moreover, despite Boh Bros.' contentions, BBB 36-37, the jury could have found that the company never admonished or disciplined Wolfe for harassing Woods. 5C-1868-70 (when Duckworth demoted Wolfe, he did not tell him he was being demoted because of his harassment of Woods).<18> Cf. Lauderdale, 512 F.3d at 165 (finding that employer satisfied first prong in significant part because employer's investigation of the harassment resulted in disciplinary action against harasser). The EEOC also offered sufficient evidence to support the jury's finding that Woods did not unreasonably fail to take advantage of the company's procedures for complaining. First and foremost, the company had no procedures for complaining about harassment. In addition, Woods nevertheless did complain to his foreman, Carpenter. 5C-1747. He also then complained in detail to Duckworth. 5C-1753-54, 1756, 1851 (conversation lasting 20 to 30 minutes focused primarily on Wolfe's harassment). The jury considered all this evidence and concluded that Boh Bros. could not establish either of the prongs of its defense. On this record, there is no basis to overturn the jury's findings, and the district court therefore did not err in denying Boh Bros.' rule 50(b) motion on this issue. See Hatley v. Hilton Hotels Corp., 308 F.3d 473, 476 (5th Cir. 2002) (reversing a grant of judgment as a matter of law in favor of the employer on its Faragher/Ellerth affirmative defense, noting that "the jury was free to choose between conflicting versions of events" relevant to the defense, and the district court erred in substituting "its own determination of the witnesses' credibility for that of the jury"). II. The district court's denial of Boh Bros.' rule 50(b) motion should be affirmed, as there is sufficient evidence to support the jury's award of punitive damages. To be entitled to punitive damages, a Title VII plaintiff must prove that the defendant intentionally discriminated "with malice or reckless indifference to the federally protected rights of an aggrieved individual." 42 U.S.C. §1981a(b)(1). If a plaintiff makes this showing, a defendant can attempt to avoid punitive damages by proving that it engaged in "good-faith efforts" to comply with Title VII. Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 545 (1999). Boh Bros. argues that the district court erred in denying judgment as a matter of law with respect to punitive damages because the EEOC offered insufficient evidence of intentional discrimination or reckless indifference, the company offered "substantial evidence" of its good-faith efforts to comply with Title VII, and this Court had not yet decided whether the because-of-sex requirement can be satisfied with evidence of gender stereotyping. BBB 39-45. However, the district court properly denied judgment as a matter of law on this issue because the EEOC offered sufficient evidence to support the jury's award of punitive damages. A. The Commission offered sufficient evidence of intentional discrimination and reckless indifference. The Commission summarized the evidence that Wolfe intentionally harassed Woods because of sex, supra at pp. 20-24. Under Faragher and Ellerth, Boh Bros. is liable for Wolfe's intentional discrimination because he was a supervisor. Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765. Boh Bros. next argues that there is an "utter absence of evidence of malice or reckless indifference" in this case. BBB 40; see also BB 41- 42. The trial record belies this assertion. There is sufficient evidence that relevant officials at Boh Bros. were well aware of Title VII's prohibition on sex-based harassment; indeed, Boh Bros. repeatedly touts its own efforts to train its management personnel about it. BBB 36, 42-44. However, despite knowledge of Title VII's sex-discrimination prohibition, Boh Bros. violated Woods's federal rights anyway. That is enough to sustain the jury's implicit finding of reckless indifference. Boh Bros. contends that "Duckworth listened to Woods's complaints about his problems with Wolfe, allowed him to continue to work rather than be terminated for violation of company policy, and investigated Woods's claims of alleged harassment by Wolfe." BBB 41. But the question is not whether Boh Bros. did absolutely nothing in the face of a harassment complaint. Rather, it is whether Boh Bros. created and maintained a sex-based hostile work environment in the face of a perceived risk that doing so would violate the federal law prohibiting sex discrimination. See Kolstad, 527 U.S. at 536. In a case like this where the employer knows that unlawful harassment is occurring and does little to prevent or correct it, the employer's inaction at some point evinces reckless indifference. Here, when Woods told Duckworth what Wolfe had been doing to him, Duckworth's reaction was that Wolfe's actions could not possibly be unlawful because that type of conduct, he testified, "goes on all the time." Thus, the jury reasonably could have concluded that the company knew that such harassment was rife at its worksites, but did almost nothing to prevent it, took grossly inadequate action to correct it, and in fact continues to believe that its conduct was lawful. On these facts, the jury reasonably found that BB acted with reckless indifference to Woods's federally protected rights. Boh Bros. contends that Duckworth had no "reason to believe Wolfe's conduct" violated the law. BBB 42. Duckworth testified that he believed that the only kind of sexual harassment that is unlawful is sexual advances motivated by sexual desire. 5C-1859-60. But Duckworth did know that sex-based harassment was unlawful. And there is no evidence that Boh Bros. officials were ever told or taught that the kind of harassment at issue in this case was affirmatively lawful, despite Title VII. This is thus not a case in which the employer "discriminate[d] with the distinct belief that its discrimination is lawful." Kolstad, 527 U.S. at 537; see also Smith v. Xerox Corp., 602 F.3d 320, 335 (5th Cir. 2010) (explaining that this exception only applies where the employer "acts with a justifiable belief that its discrimination is lawful") (emphasis added). Nor is it a case where the "underlying theory of discrimination [was] novel or otherwise poorly recognized...." Kolstad, 527 U.S. at 537. Boh Bros. argues that because gender stereotyping is a "novel theory to this Circuit" its agents could not possibly have acted with reckless indifference. BBB 44. Boh Bros. cites the district court's decision in Love v. Motiva Enterprises, LLC, No. 07-5970, 2008 WL 4286662 (E.D. La. Sept. 17, 2008) (unpublished), as indicating that "a claim for sexual stereotyping [i]s specious." BBB 44. In fact, the district court in Love acknowledged that several circuits had recognized discrimination based on gender stereotyping, 2008 WL 4286662 at *9, and dismissed Love's gender-stereotyping claim only after ruling that she had not pled it and her evidence did not support it. Id. at *9-10. And as already discussed at length above, the EEOC's gender stereotyping theory, even as applied in the same-sex- harassment context, is hardly novel or specious. See also Lynch v. Baylor Univ. Med. Ctr., No. 05-931, 2006 WL 2456493, at *5 (N.D. Tex. Aug. 23, 2006) (unpublished) ("After the Supreme Court's decision in Price Waterhouse..., courts have regularly recognized a cause of action under Title VII based on discrimination for failure to conform to gender stereotypes."); Oiler v. Winn-Dixie La., Inc., No. 00-3114, 2002 WL 31098541, *4 (E.D. La. Sept. 16, 2002) (unpublished) (recognizing same Price Waterhouse holding). The great weight of authority-virtually every court to confront the question-has recognized this as a valid evidentiary approach in a case like this one. Boh Bros. thus distorts the legal landscape by arguing "there simply existed no legal guidance sufficiently placing Boh Bros. on notice of such a basis for same-sex harassment prior to the institution of this lawsuit." BBB 45. The company contends, in addition, that Wolfe could not have acted with reckless indifference because "[a]ll evidence indicated Wolfe acted as he did because he thought it was funny." BBB 41-42. This argument is also flawed. First, there was countervailing evidence, which the jury was free to credit-namely, Woods's testimony that he felt that Wolfe actually was attacking him with the epithets. 5C-1738. The jury thus reasonably could have rejected Wolfe's testimony that he was just trying to be funny. Moreover, even if Wolfe was trying to be humorous, that humorous intent is not inconsistent with a reckless indifference to Woods's federally protected rights. See, e.g., Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1077 (6th Cir. 1999) (harassment included frequent racial jokes using word "nigger"); Arbaugh v. Y & H Corp., 444 F. Supp. 2d 693, 696 (E.D. La. 2006) (denying judgment as a matter of law on the award of punitive damages even though plaintiff "acknowledged that [the harasser's] comments concerning her body parts were jokes"). While Wolfe might have thought it was humorous to harass Woods, the jury could reasonably have concluded that this cavalier attitude reflects precisely the sort of reckless indifference supporting an award of punitive damages. In this case, the jury was specifically instructed on the need to find reckless indifference to award punitive damages. 5C-2334-35. It was well aware of the appropriate standard both for liability in a same- sex harassment case and for punitive damages, and found for the EEOC on both. Because the trial record contains ample support for these findings, the district court's denial of Boh Bros.' rule 50(b) motion on punitive damages must be affirmed. B. Boh Bros. failed to establish its affirmative defense as a matter of law. Boh Bros. next maintains that the punitive-damage award should have been vacated because the company introduced "substantial evidence" of its good-faith efforts to comply with Title VII. BBB 42. Boh Bros. seriously misstates the standard. The company's alleged good- faith efforts present the company with an affirmative defense to an award of punitive damages. See, e.g., Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 188 F.3d 278, 286 (5th Cir. 1999) (employer was required to establish its Kolstad good-faith defense "as a matter of law"); Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 385 (2d Cir. 2001) ("good-faith efforts" in Kolstad constitute affirmative defense); Romano v. U-Haul Int'l, 233 F.3d 655, 670 (1st Cir. 2000) (same). Since Boh Bros. bore the burden to establish this affirmative defense as a matter of law, the test is not whether it presented "substantial evidence" to support a finding in its favor, but whether the evidence was so one-sided and overwhelming that no reasonable jury could resolve the issue in the EEOC's favor. See, e.g., Farpella-Crosby, 97 F.3d at 805-06 ("A judgment n.o.v. should be granted only when the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict."). That standard simply was not met here. While the company had a general EEO policy, it had no written policy describing or prohibiting sexual harassment and no procedure encouraging its employees to report harassment to management. It trained managers at Duckworth's level for as little as five minutes a year, 5C-1863, and its training was so inadequate that Duckworth believed that harassment is unlawful only when it is motivated by sexual desire. 5C-1859-60. Moreover, as already discussed, the jury reasonably could have found that Boh Bros. took only minimal action to correct harassment once it was reported. Boh Bros. certainly knew how to investigate allegations that were important to it. It paid an outside firm to investigate the allegations that Wolfe misused company property for almost 85 hours. Yet its investigation of Woods's allegations took all of 20 minutes, may have been delayed for months, and did not result in Wolfe's being admonished or disciplined for the harassment. Boh Bros. cites this Court's opinion in Deffenbaugh-Williams in support of its reversal of the jury's verdict on punitive damages. BBB 43-44. Deffenbaugh-Williams, the company argues, found insufficient evidence of good-faith efforts to justify judgment as a matter of law where the employer "failed to show any response to plaintiff's complaint or any specific efforts to comply with Title VII." BBB 44. By contrast here, Boh Bros. argues, "there was ample evidence ... to support a finding of good faith...." BBB 44. Again, Boh Bros. has misapprehended the governing standard. The question is not whether the jury could have found for Boh Bros., but rather whether no reasonable jury could have found against it. The jury evaluated all the evidence on this issue and ultimately concluded that the company had not made good-faith efforts to comply with Title VII. The district court properly denied judgment as a matter of law on this issue. Cf. Hatley, 308 F.3d at 476 (finding that employer proved good-faith defense as a matter of law where it "had a well- publicized policy forbidding sexual harassment, gave training on sexual harassment to new employees, established a grievance procedure for sexual harassment complaints, and initiated an investigation of the plaintiffs' complaints"). III. The district court did not abuse its discretion in denying a new trial, because it did not abuse its discretion in admitting Dr. Gold's testimony. This Court reviews an order denying a motion for a new trial "for a clear showing of abuse of discretion." Garriot v. NCsoft Corp., 661 F.3d 243, 247 (5th Cir. 2011) (citation omitted). The Court is "'bound to accept all evidence in favor of the verdict as true and to give such evidence the benefit of all permissible inferences that would help sustain the jury's award.'" Id. (citation omitted). The Court will not reverse the trial court's decision "unless [the defendant] shows 'an absolute absence of evidence to support the jury's verdict.'" Id. (citation omitted). Boh Bros. asserts that it is entitled to a new trial because the jury was prejudiced by Dr. Gold's testimony, which should have been excluded. The district court's decision to admit Dr. Gold's testimony is also "reviewed for an abuse of discretion." Hodges v. Mack Trucks, Inc., 474 F.3d 188, 194 (5th Cir. 2006). "'District courts enjoy wide latitude in determining the admissibility of expert testimony, and the discretion of the trial judge and his or her decision will not be disturbed on appeal unless manifestly erroneous.'" Id. (citation omitted). Boh Bros. contends that the district court abused its discretion in admitting Dr. Gold's testimony principally because she addressed the facts of this case, in alleged violation of the district court's limiting instruction, and usurped the district court's role by explaining the governing law. BBB 47-54. In fact, Dr. Gold scrupulously avoided commenting on the factual allegations in this case and limited herself to summarizing the results of social-science research published in peer- reviewed journals. She also testified quite clearly that social scientists use a broader definition of "sexual harassment" than Title VII does. The district court therefore did not abuse its discretion in admitting her testimony. Boh Bros. concedes that Dr. Gold did not testify directly about the facts of this case. BBB 49 (alleging that she did so only "indirectly and subtly").<19> The company complains, however, that Dr. Gold referred to a number of the specific allegations in this case-particular epithets, physically isolated construction workers, and gestures simulating gay sex. In doing so, the company argues, she "did everything ... but name the individuals and Boh Bros.," and therefore violated the district court's limiting instruction. BBB 49. First, Boh Bros. does not-and cannot-contend that an expert witness is normally prohibited from testifying about the facts alleged in a case. Indeed, the company concedes that an expert witness can properly assist the jury in understanding the evidence submitted in a case. BBB 50-51 (quoting Fed. R. Evid. 702, 704); see Primiano v. Cook, 598 F.3d 558, 563 (9th Cir. 2010) (expert testimony must "'assist the trier of fact' to either 'understand the evidence' or 'determine a fact in issue'") (quoting rule 702). Boh Bros. is thus arguing not that Dr. Gold's testimony violated the normal rules of evidence, but only that it violated the district court's order barring her from testifying about the facts of this case. See 5C-1700-02 (district court allowed Dr. Gold to testify about "what the social science has developed in various studies" about the "ways in which same-sex harassment occurs, what motivates the same-sex harassment, the how and why men harass other men due to gender stereotyping," but directed her not to testify that what happened here was sexual harassment or that it is reasonable to conclude that what happened here was sexual harassment). Dr. Gold did refer to the specific kinds of conduct that the company complains about. She did so, however, not in the course of commenting on the allegations in this case, but in the course of summarizing the peer-reviewed social-science research on same-sex sexual harassment (as social scientists define the term). Dr. Gold is an expert in reviewing scientific articles addressing sexual harassment, critiquing their methodology, and assessing their reliability. See 5C- 2194-96 (participated extensively in peer-review process for scientific journals); 5C-2196 (published treatise on sexual harassment). The jury clearly understood that Dr. Gold was testifying about the relevant social-science research and not about the specific allegations in this case.<20> Such evidence is clearly admissible. See, e.g., Huss v. Gayden, 571 F.3d 442, 455-56 (5th Cir. 2009) (district court abused its discretion in barring defendant's expert witness, an internist, from challenging the reliability of the studies on which the plaintiffs' expert relied and discussing a more reliable study); United States v. Simmons, 470 F.3d 1115, 1122-23 (5th Cir. 2006) (district court did not abuse its discretion in admitting testimony of university professor of psychology that witness's behavior was consistent with behavior of rape victims); Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 1298 (8th Cir. 1997) (special master erred in excluding testimony by plaintiffs' expert witnesses that in part summarized findings of social-science research on causation of emotional distress), cited with approval, Simmons, 470 F.3d at 1122-23. Boh Bros. is not criticizing Dr. Gold's testimony as an inaccurate summary of the relevant research. (The company could of course have offered expert testimony summarizing the research differently, but it did not do that.) Rather, the company maintains that her testimony was unduly prejudicial because the allegations in this case in some respects match closely what the relevant research has revealed. Thus, Boh Bros.' objection boils down to the complaint that, in the course of summarizing the scientific research on same-sex harassment, Dr. Gold mentioned a few epithets, a gesture, and a setting that match the allegations in this case. But the company offers no authority holding that an expert witness is prohibited from summarizing the relevant research because the research findings match the allegations in the case. That what Wolfe did is typical of what often happens in similar contexts and cases does not prevent Dr. Gold from testifying about what often happens. On the contrary, it made her testimony particularly relevant and helpful to the jury in evaluating testimony about Wolfe's conduct. Many laypersons serving on juries have little experience with or knowledge about the type of sexual harassment that occurs in all-male blue-collar insular work settings like police departments, oil-rig crews, and football teams. Social scientists have studied this phenomenon, and Dr. Gold's summary of that research assisted the jury in understanding the allegations in this case. See, e.g., EEOC v. Morgan Stanley & Co., 324 F. Supp. 2d 451, 462 (S.D.N.Y. 2004) (allowing EEOC to present expert testimony by social scientist "about gender stereotypes, and about how these stereotypes may have affected decisions at [defendant]"); Duling v. Gristede's Operating Corp., 267 F.R.D. 86, 95 (S.D.N.Y. 2010) (allowing plaintiff to present expert testimony by social scientist about gender stereotypes). Boh Bros. also contends that Dr. Gold improperly instructed the jury on the law by defining same-sex sexual harassment. BBB 50-51. This testimony was especially harmful, the company maintains, because the district court did not define same-sex harassment in its jury instructions. BBB 52. But Boh Bros. is in no position to complain about this aspect of the jury instructions. As already noted, the district court asked the parties if they wanted an instruction discussing same-sex harassment and gender stereotyping, and Boh Bros. said it did not. 5C- 2269-70 ("THE COURT: Mr. Christy, do you have any problems with me eliminating any reference to or not [ins]erting any reference to that gender stereotype? MR. CHRISTY: No.") In any event, Dr. Gold testified clearly and repeatedly that she was testifying about sexual harassment as defined by social scientists, and that the social-science definition of "sexual harassment" is different from and broader than the legal definition. 5C-2206-08. She testified that social scientists focus on the victim's subjective perceptions as well as the objective conduct and context: "[I]f the individual describes it as unwelcome and [ ]offensive, then their perceptions are that they are being harassed. That's their perception[;] that's not a legal conclusion." 5C-2207. Therefore, "harassment in the social ... scientist's eyes ... may not constitute legal sexual harassment." 5C-2207. Harassment for a social scientist "is not limited to the legal concept of sexual harassment," and "[l]egal sexual harassment is a subset of the great universe of the behaviors that can constitute sexual harassment [as a social scientist defines it]." 5C-2207. Given this testimony, the district court did not abuse its discretion in determining that the jury would not be confused about whether Dr. Gold was testifying about sexual harassment as defined by Title VII. Finally, it bears noting that the district court gave the standard instruction on expert-witness testimony: i.e., that an expert witness is permitted to state an opinion on technical matters, but that the jury was "not required to accept that opinion" and it was up to the jury "to decide whether to rely on it." 5C-2322. The jury was thus told it could disregard the expert testimony and was not bound by it. Accordingly, the admission of Dr. Gold's evidence did not constitute error. In sum, there is no basis for disturbing the district court's evidentiary ruling or its ruling denying Boh Bros.' motion for a new trial. IV. The district court did not abuse its discretion in awarding injunctive relief. This Court reviews an order granting injunctive relief for an abuse of discretion. Houston Chronicle Publ'g Co. v. City of League City, Tex., 488 F.3d 613, 621 (5th Cir. 2007). A district court abuses its discretion when it: "'(1) relies on clearly erroneous factual findings when deciding to grant or deny the permanent injunction[,] (2) relies on erroneous conclusions of law when deciding to grant or deny the permanent injunction, or (3) misapplies the factual or legal conclusions when fashioning its injunctive relief.'" Id. (citation omitted). Boh Bros. has failed to demonstrate any of these grounds for disturbing the district court's decision awarding injunctive relief. The primary objective of Title VII is prophylactic-to prevent discrimination and ensure equal employment opportunity in the future. See, e.g., Faragher, 524 U.S. at 806 (chief aim of Title VII is "to avoid harm" in the first place). Consistent with that objective, Title VII lists injunctive relief as a quintessential remedy for proven discrimination. See 42 U.S.C. §2000e-5(g)(1) ("If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate."). Interpreting this statutory provision, the Supreme Court has declared that courts in these cases have "not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future." Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975) (internal quotation marks omitted) (emphasis added). The jury here found that Wolfe subjected Woods to a hostile environment because of his sex and that Boh Bros. failed to exercise reasonable care to prevent and promptly correct the harassment. App-3. It also found that Boh Bros. acted with malice or reckless indifference to its employee's right to be free from discrimination. This is a classic case for the ordering of injunctive relief. Indeed, injunctive relief is particularly appropriate where, as here, future violations appear likely. See, e.g., Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1230 (10th Cir. 1997) ("The most important factor for the district court to consider is whether the facts indicate a danger of future violations of the Act."). Boh Bros. stated repeatedly that while Wolfe's conduct may have been inappropriate under the company's ethics code, it was not unlawful, and the company's investigation and discipline were appropriate. See, e.g., 5C-2035 (Lipani testified as rule 30(b)(6) witness that even if Wolfe did everything Woods said he did, "I think it is not sexual harassment."); 5C-2057 (Lipani testified that Duckworth's handling of Woods's complaint was "completely consistent with defendant's policies"). Thus, even after a full airing of the evidence, the company evidently still did not recognize that it had done anything very wrong. Yet, the jury implicitly found that Boh Bros. had acted with reckless indifference to Woods's federally protected rights. The district court could therefore reasonably have concluded that only through issuance of an injunction could future hostile environments be prevented. See EEOC v. Massey Yardley Chrysler Plymouth, Inc., 117 F.3d 1244, 1254 (11th Cir. 1997) (need for injunction shown in part by fact that "no one at the company seems to have admitted to any wrongdoing"). Boh Bros. contends that the district court's injunction was "not warranted." BBB 54-57. The company's argument appears to have two principal prongs: first, some courts have decided that a district court need not grant the EEOC injunctive relief when it has proved a violation with respect to only one employee; and second, the district court stated during the hearing on the Commission's motion for injunctive relief that it was planning to deny the agency's motion in part. Neither ground comes close to showing an abuse of discretion. The three decisions the company cites in support of its argument each reviewed a district court order denying injunctive relief and ruled that this denial was not an abuse of the district court's discretion. BBB 55-56; EEOC v. Siouxland Oral Maxillofacial Surgery Assocs., L.L.P., 578 F.3d 921, 928 (8th Cir. 2009) ("The district court did not abuse its discretion in denying the EEOC's request for injunctive relief."); EEOC v. Gen. Lines, Inc., 865 F.2d 1555, 1565 (10th Cir. 1989) (no abuse of discretion in denying injunction), disapproved on other grounds, Price Waterhouse, 490 U.S. 228 (1989); EEOC v. Fed. Express Corp., 180 F. App'x 865, 866 (11th Cir. 2006) (same). Boh Bros. cites no decision ruling, as it is asking this Court to rule, that a district court abused its discretion by granting injunctive relief in light of an adverse jury verdict and award of punitive damages. Further, it ignores the fact that several courts of appeals have found an abuse of discretion in an order denying the EEOC injunctive relief-even when the agency has proven a violation against only one employee. See Massey Yardley, 117 F.3d at 1253-54 (district court abused its discretion in denying injunctive relief EEOC requested without explaining why; "The EEOC represents the public interest when litigating claims, and, through injunctive relief, seeks to protect not only the rights of the individual claimant, but those of similarly- situated employees by deterring the employer from future discrimination."); EEOC v. Harris Chernin, Inc., 10 F.3d 1286, 1291-92 (7th Cir. 1993) (district court erred in dismissing EEOC's claim for injunctive relief on res judicata grounds; "To make a case for injunctive relief, the EEOC may not need to produce evidence of discrimination beyond [the single charging party's] case."); EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1543-45 (9th Cir. 1987) (district court abused its discretion by denying EEOC injunctive relief; "[A] person subjected to employment discrimination is entitled to an injunction against future discrimination ... unless the employer proves it is unlikely to repeat the practice...."). The company also emphasizes that at the hearing on the injunction the district court indicated it was planning to deny some of the injunctive relief the EEOC requested. But even if the district court had entered an order denying the Commission some of the relief it requested, it would have been free to revisit that decision and grant broader relief anytime before it entered final judgment. See Runyon v. Applied Extrusion Techs, Inc., 619 F.3d 735, 739 (7th Cir. 2010) (district court is free to revisit earlier ruling "while there is still time to prevent error"); Wood v. GCC Bend, LLC, 422 F.3d 873, 882 (9th Cir. 2005) ("district judges may always revisit their prior rulings"). A fortiori, the district court was free to revisit its preliminary position on injunctive relief when that preliminary position did not take the form of an issued order. Here, the mere fact that the district court changed its thinking somewhat between holding the hearing and entering the order hardly shows an abuse of discretion. The question is whether the district court abused its discretion in entering the order it entered, and Boh Bros. has failed to show that it did so here. Conclusion For the foregoing reasons, the Commission respectfully urges this Court to affirm the jury verdict and the district court's ruling on Boh Bros.' post-judgment rule 50 and 59 motions. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel DANIEL T. VAIL Acting Assistant General Counsel s/ Paul D. Ramshaw PAUL D. RAMSHAW Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., NE, Room 5SW18K Washington, DC 20507 (202) 663-4737 Certificate of Service I certify that Walter W. Christy, counsel for appellant Boh Bros., is a registered CM/ECF user and will be served by receiving an electronic copy of this brief from the Court today, December 12, 2011. s/ Paul D. Ramshaw Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., NE, Room 5SW18K Washington, DC 20507 December 12, 2011 Certificate of Compliance with Rule 32 This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because, after excluding the parts of the brief exempted by rule 32(a)(7)(B)(iii), it contains 13, 988 words (as counted by Microsoft Word 2003). It also complies with the typeface requirements of rule 32(a)(5) and the type- style requirements of rule 32(a)(6) because it uses 14-point Century Schoolbook, a proportionally spaced font. s/ Paul D. Ramshaw Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., NE, Room 5SW18K Washington, DC 20507 December 12, 2011 ********************************************************************************** <> <1> "App-4" refers to tab 4 in Boh Bros.' record excerpts, and "R-59" refers to entry 59 in the district court docket sheet, App-1. Other record references are labeled consistent with this nomenclature. <2> This section summarizes the relevant evidence adduced at trial, construed in the light most favorable to the jury's verdict. Most of the facts included here were omitted from Boh Bros. brief on appeal. See, e.g., BBB 3-7 (statement of facts). <3> Wolfe acknowledged that he called Woods "faggot," "queer," "pussy," and "princess." 5C-1932, 1937, 1940-41. <4> Wolfe admitted "humping" two of his subordinates but denied "humping" Woods. 5C-1937-38. Woods's co-worker Harold Blades testified that Wolfe humped Woods. 5C-2125. <5> Woods testified that shortly before this timesheet incident, he had complained to Boudreaux about Wolfe's harassment of him. 5C-1752. Woods testified that Boh Bros. had earlier failed to pay him for all the hours he worked, so he wanted to check that his hours had been recorded accurately for the then-current time period. 5C-1750-51. He denied that he asked to see the entries for his co-workers. 5C-1751. <6> Wolfe also allegedly told Duckworth that Woods had tried to look at other employees' timesheet entries. 5C-1999, 1885. <7> Duckworth claimed that the three-day suspension was not punishment or discipline, 5C-1854-55, but John Lipani, the company's general counsel and EEO officer, stated that it was, 5C-2052. <8> While Boh Bros. in its Rule 50(b) motion challenged the sufficiency of the evidence supporting the jury's award of compensatory damages, it has abandoned this challenge on appeal (except to the extent that it argues that a reversal of the district court's denial of Boh Bros.' rule 50(b) motion as to liability would require the court to vacate the jury's award of damages as well). <9> Boh Bros. argues that "Wolfe testified that he did not find Woods to be feminine." BBB 32. The company ignores the fact that Wolfe also testified that he did find Woods to be feminine, and that this Court views the evidence in the light favorable to the verdict. <10> Boh Bros. maintains that "Wolfe variously called all employees ... 'queers,' 'faggots' and 'princess.'" BBB 29. But this Court reviews the evidence in the light most favorable to the verdict. Since Wolfe testified that Woods was the only iron worker he called "queer" and maybe the only worker he called "faggot," the jury was free to credit his testimony on this point. <11> The Commission addresses the company's objection to Dr. Gold's testimony infra at pp. 58. <12> Further, Boh Bros. certainly cannot challenge the district court's denial of its motion for summary judgment on this same issue, as it appears to attempt to do on appeal. See, e.g., BBB 10, 13 n.60, 16. The Supreme Court has held that a party may not challenge a district court's denial of summary judgment after a full trial on the merits has been held. See Ortiz v. Jordan, 131 S. Ct. 884, 891-93 (2011). <13> In fact, Boh Bros. concedes that the Price Waterhouse Court-or at least the plurality-ruled that the district court properly relied on evidence of sex stereotyping to find that Price Waterhouse discriminated against Hopkins because of her sex. BBB 19-20. <14> The amicus brief of the Louisiana Associated General Contractors, Inc., alleges that "[c]onstruction employers are regularly confronted with the probability of male-on-male horseplay and coarse language," Amicus Br. at 2, and a decision by this Court that gender-stereotype evidence can render an employer liable for a same-sex hostile environment would place construction companies "in an untenable situation, both practically and financially." Amicus Br. at 10. The contractors are thus essentially asking for a construction-site exemption from the normal law governing hostile environments. But Title VII has no provision relieving employers of liability for a hostile environment in situations where offensive harassment is particularly prevalent. Accepting the argument of the company and its amicus would mean that "the more hostile the environment, and the more prevalent the sexism, the more difficult it is for a Title VII plaintiff to prove that sex- based conduct is sufficiently severe or pervasive to constitute a hostile environment." Williams v. Gen. Motors Corp., 187 F.3d 553, 564 (6th Cir. 1999). That is not the law. See Jackson v. Quanex Corp., 191 F.3d 647, 662 (6th Cir. 1999) ("[W]e squarely denounce the notion that the increasing regularity of racial slurs and graffiti renders such conduct acceptable, normal, or part of the 'conventional conditions on the factory floor.'"); EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 318 (4th Cir. 2008) ("While the district court suggested that the harassment might be discounted because the environment was inherently coarse, Title VII contains no such 'crude environment' exception, and to read one into it might vitiate statutory safeguards for those who need them most."). <15> Boh Bros. also relies on Dandan v. Radisson Hotel Lisle, No. 97-8342, 2000 WL 336528 (N.D. Ill. Mar. 28, 2000), another decision that, like Mims, was decided in 2000. BBB 15-16. Dandan rejected the plaintiff's reliance on gender-stereotype evidence to show a same-sex-harassment violation because there was then "no precedential underpinning" for it. 2000 WL 336528 at *4. Now there is. See, e.g, cases cited supra, pp. 30- 31 and infra, p.52. <16> Boh Bros. also argues that there is no evidence that Woods suffered any harm, BBB 28, but the EEOC offered evidence that Woods experienced significant emotional distress. See supra at p. 13. <17> Boh Bros. emphasizes its "non-discrimination policy" along with its "complaint process," BBB 36, without informing the Court that the policy nowhere mentions the word "harassment," App-11. Thus, the jury was free to find that the company had no process for complaining about harassment at all. <18> Boh Bros. fails to acknowledge this testimony by Duckworth when it claims that "Boh Bros. demoted Wolfe in part because of his treatment o[f] the maintenance crew, including Woods." BBB 36. <19> Boh Bros. begins its jeremiad about Dr. Gold by complaining that the report she offered during discovery addressed the facts of this case extensively. BBB 47. This is irrelevant because the jury did not see this report. <20> The first three substantive questions Dr. Gold answered set the tone, focusing on "the primary studies and articles on the topic of same-sex harassment within [her] field," i.e., the "primary scientific studies." 5C- 2198. Further, throughout the direct examination, EEOC counsel made clear that he was asking about what "the science say[s]," what "the studies address," and what "the social science shows." 5C-2200, 2202- 04.