Another Circuit Finds a Gay Man Can Bring a Gender Stereotyping Claim Under Title VII

In Prowel v. Wise Business Forms, 2009 WL 2634646 (3rd Circuit, August 28, 2009), a unanimous panel reversed a summary judgment and held that a gay man was entitled to a trial of his sex discrimination and retaliation claims against an employer that had fired him after he continued to complain about harassment by co-workers. The key to winning the right to a trial was Brian Prowel's detailed allegations of harassment responding to his effeminate gender presentation at the workplace.

Prowel, who is openly gay, describes himself as failing to conform to the stereotypes of male blue collar workers held by his former co-workers and bosses.  By his description, he was a fashionable dresser in an industrial plant where most of the workers wore work clothes, and his speech and mannerisms were seen as effeminate by coworkers who referred to him as "Princess" and "Rosebud."  There was also some blatant homophobia, which erupted after somebody placed a clipping of a male-for-male personals ad on Prowel's work station together with a note encouraging Prowel to follow up.  He overheard one worker stating that she hated Prowel and that all "faggots" should be shot.  The continuous harassment to which he was subjected was so emotionally disturbing that he would have to pull over to the side of the road while driving to work in order to vomit.  Prowel frequently complained to management about the ongoing harassment but obtained no real satisfaction, as no effective steps were taken to end the problem.  Finally he was let go, ostensibly for lack of work in the plant.  His work evaluations were all good.

Prowel sued under Title VII alleging sex discirmination and religious discrimination, as well as retaliation for his frequent complaints.  District Judge Terrence F. McVerry granted summary judgment to the employer, citing 3rd Circuit precedent that sexual orientation claims were not actionable under Title VII.  but the court of appeals panel concluded that Prowel's allegations would support two alternative theories: sex discrimination due to failure to conform to gender stereotypes (the sex stereotyping theory) or sexual orientation, and held in an opinion by Circuit Judge Thomas Hardiman that so long as either theory might plausibly explain what happened to Prowel, he should be able to get to a jury.  The jury will have to decide whether this is a sex discrimination case.

"Wise cannot persuasively argue that because Prowel is a homosexual, he is precluded from bringing a gender stereotyping claim," wrote Hardiman.  "There is no basis in the statutory or case law to support the notion that an effeminate heterosexual man can bring a gender stereotyping claim while an effeminate homosexual man may not.  As long as the employee -- regardless of his or her sexual orientation -- marshals sufficient evidence such that a reasonable jury could conclude that harassment or discrimination occurred 'because of sex,' the case is not appropriate for summary judgment."

On the other hand, the court of appeals upheld the dismissal of Prowel's religious discrimination claim, finding that it was, in effect, a sexual orientation claim.  Prowel's argument was that because the dislike of co-workers was due to their religious beliefs about homosexuality, the discrimination should be considered religious discrimination.  The court ruled, in effect, that religious discrimination claims are about the religion of the employee claiming discrimination, not the religion of discriminatory co-workers.

This move by the court seems designed to ensure that Title VII can't be construed to ban sexual orientation discrimination, as such.  It has long seemed to this writer that the religious roots of anti-gay discrimination should provide a logical argument to protect gay employees from such discrimination, but the few times the argument has been raised the courts have been unwilling to go there.  Hardiman was very open about the reasons for this rejection.  Congress has been presented with numerous opportunities to add a sexual orientation discrimination ban to federal law, and has not yet done so.  Under the circumstances, the court will not adopt some alternative theory that would make sexual orientation discrimination routinely actionable.  On the other hand, the lower federal courts are bound by Price Waterhouse, the 1989 Supreme Court decision that gender stereotyping can be taken as forbidden motivation in a sex discrimination claim, and clearly, as he points out, the sexual orientation of the plaintiff is conceptually irrelevant in such a case.

While granting a reversal of the summary judgment on the sex discrimination claim, the court also revived Prowel's retaliation claim, as turning on much the same issue of whether he could bring a gender stereotyping claim under Title VII as a gay man.  There is also a supplementary state law claim here, but Pennsylvania has not yet added sexual orientation to its state anti-discrimination law, so that is also a sex discrimination claim.

Let's enact ENDA and end all this hairsplitting.  This kind of case shows the need for ENDA, to clearly establish that sexual orientation discrimination in the workplace is wrong.  It interrelates with two forms of forbidden discrimination -- sex discrimination and religious discrimination -- and there is at this point a national consensus reflected in public opinion polling that anti-gay workplace discrimination should generally be illegal.  (Indeed, most people who are polled believe it is already illegal - and so it is for most of the country as a matter of state law - but the point still needs to be pinned down in a federal statute to be maximally effective and require employers to revise their practices.

The legal team representing Prowel to this point includes Katie R. Eyer of Salmanson Goldshaw (Philadelphia), Corey S. Davis of Equality Advocates Pennsylvania, and Pittsburgh attorney Timothy P. O'Brien.  Eyer argued the appeal.  The Women's Law Project submitted an amicus brief in support of the appeal.