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Gay Man Entitled to Trial on Claims of Sex Stereotyping and Retaliation

Posted: September 13, 2009 Filed under: Uncategorized

On August 28, 2009, the Third Circuit Court of Appeals released an important opinion in Prowel v. Wise Business Forms, Inc., which determined that a gay employee was entitled to a jury trial on his claims of sex discrimination based on his claim of sex stereotyping and concomitant retaliation. The case is significant because federal anti-discrimination laws do not prohibit discrimination on the basis of one’s sexual orientation; yet, in Prowel, a gay man was able to assert a sex discrimination claim because he had been stereotyped “based on his sex.” The U.S. Supreme Court first recognized claims for gender stereotyping in a case involving a woman who was denied partnership in an accounting firm. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). There, the woman was denied partnership because she used profanity, was not charming, and did not walk, talk, or dress in a feminine manner. A plurality of the Supreme Court concluded that, in prohibiting discrimination based on sex, Congress intended to “strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” 490 U.S. at 251.

The Prowel court relied on Price Waterhouse to conclude that, although employers can legally discriminate against gays and lesbians based on their orientation, “once a plaintiff shows that harassment is motivated by sex, it is no defense that it may also have been motivated by anti-gay animus. [Citation omitted.] In sum, ‘[w]hatever the sexual orientation of a plaintiff bringing a same-sex sexual harassment claim, that plaintiff is required to demonstrate that the harassment was directed at him or her because of his or her sex.’” An employee meets this burden when they demonstrate that “‘the[ir] harasser was acting to punish [their] noncompliance with gender stereotypes.’”

Mr. Prowel’s testimony, coupled with the fact he was laid off before typical male employees with worse performance records, was sufficient, the court said, to create an issue of fact for a jury.

The case is unintentionally humorous because the outcome results, at least in part, from outdated stereotypes. Testimony described the “typical” straight male employee as:

[B]lue jeans, t-shirt, blue collar worker, very rough around the edges. Most of the guys there hunted. Most of the guys there fished. If they drank, they drank beer, they didn’t drink gin and tonic. Just you know, all into football, sports, all that kind of stuff, everything I wasn’t.

According to the Third Circuit, Prowel was not typical:

In stark contrast to the other men at Wise, Prowel testified that he had a high voice and did not curse; was very well-groomed; wore what others would consider dressy clothes; was neat; filed his nails instead of ripping them off with a utility knife; crossed his legs and had a tendency to shake his foot “the way a woman would sit”; walked and carried himself in an effeminate manner; drove a clean car; had a rainbow decal on the trunk of his car; talked about things like art, music, interior design, and decor; and pushed the buttons on the nale encoder with “pizzazz.”

In summary, employers may not argue that because an employee is homosexual, they are precluded from bringing a gender stereotyping claim.

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. For the reasons we have articulated, Prowel has adduced sufficient evidence to submit this claim to a jury.

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