Third Circuit hears case on gender stereotyping or sexual orientation discrimination

Last Wednesday, October 1, 2008, the Third Circuit Court of Appeals heard arguments Prowel v. Wise Business Forms, a case that has many implications for Title VII.  In this case, Brian Prowel, an openly gay man, filed a federal lawsuit against his former employer, Wise Business Forms, Inc., alleging sex discrimination.  He argued that he was discriminated against because he did not conform to his co-workers' sexual stereotypes in that "his conduct and appearance in many respects were effeminate." 

He crosses his legs, and swings his foot.  He files his nails if one has a snag.  He has a high-pitched voice.  Co-workers called Mr. Prowel "Rosebud" and "Princess."  Someone left a feathered tiara on his workstation along with a a packet of personal lubrication.  Graffiti was written about him on the bathroom walls.  The U.S. District Judge Terrence F. McVerry dismissed Mr. Prowel's claims, saying that he was not discriminated against because of his sex.  These examples of harassment, Judge McVerry found, were all examples of discrimination because of Mr. Prowel's sexual orientation.  While the Supreme Court long ago determined in the famous (or infamous now) Price Waterhouse v. Hopkins case in 1989 that gender stereotyping is a subset of sex discrimination protected by by Title VII, sexual orientation is not protected by Title VII.

Mr. Prowel argues that making fun of him for being effeminate, calling him "Princess" and "Rosebud," and giving him a tiara all smack of gender stereotyping.  Mr. Prowel's attorney, Timothy O'Brien argues that whether the harassment was based on gender stereotyping or sexual orientation is a decision to be made by a jury, not a judge.  Mr. O"Brien feels like a jury would do a better job recognizing the complexity of the case and distinguishing between the two. 

The main issue on appeal is whether anti-gay discrimination rests more on opinion of sexual orientation or gender stereotyping.  If the court decides that anti-gay discrimination rests more on the latter, other problems will likely arise.

The district court has recognized one of the problems inherent in describing what appears to be anti-gay discrimination as gender stereotyping.  First, gender stereotyping claims, when utilized by an openly homosexual plaintiff, can easily present problems for an adjudicator because stereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality.  In this way, a gender stereotyping claims may be erroneously used to "bootstrap protection for sexual orientation into Title VII."  Further, permitting a plaintiff to simply relabel a sexual orientation claim as one for failure to conform to gender stereotypes would evade what the courts have always claimed was the statutory intent of Congress.

Second, the district court's decision seems to cause two categorical splits: a split between gender conforming homosexuals and non-gender conforming homosexuals, and a split between openly gay homosexuals and "closet" homosexuals.  In both splits, one category may receive protection under Title VII while the other category is left unprotected.  The problem is obvious.  Taking the facts from the Prowel case, if the 3rd Circuit finds that co-workers calling Mr. Prowel "Princess," "Rosebud" and placing to tiara at his workstation is gender stereotyping, then only those homosexuals who are effeminate or "in the closet" may be protected.  This leaves the gender-conforming homosexuals and openly gay homosexuals unprotected from sexual harassment.  This becomes a case of "what THEY do know can hurt YOU."

On the other hand, women advocacy groups are fearful of the detrimental effects the district court opinion, as it stands, could have on gender equality in the workplace - especially for women who work in non-traditional occupations.  They assert that "if the reasoning of the district court in this case is upheld, employers who seek to lock women out of these well-paying fields could evade Title VII liability through the simple expedient of lacing their gender discrimination with enough anti-lesbian slurs."  While this fear may be real, it is probably unwarranted.  To this date, sexual orientation has not been protected under Title VII., though it is protected in at least 18 states.  The district court opinion has maintained the status quo and therefore, it is unlikely that employers will start to use anti-gay epithets to discriminate against women based on gender merely because the district court's opinion stands.

I think a better way of handling this and similar cases would be for the court to send the case to the jury with only the evidence that clearly does not fall into behavior related to sexual orientation and let them decide whether the harassment was based on sexual orientation or gender stereotyping.  While it is clear that some of the behavior in this case was based on sexual orientation, such as the personal lubricant.  The other behavior, such as calling Mr. Prowel "Rosebud," "Princess," leaving the tiara on his work station and possibly the graffiti on the bathroom wall, could have been equally related to either sexual orientation or gender stereotypes and therefore should have gone to the jury.  In a close case like this, I think it is better left up to the jury to make the decision in which category they think this belongs.  Unfortunately for Mr. Prowel, I predict the 3rd Circuit is going to affirm the district court's decision.  Few federal courts have found that a homosexual states a claim for sex discrimination based on gender stereotyping.  However, there is hope for Mr. Prowel.  In 2001, the 3rd Circuit in Bibby v. Philadelphia Coca Cola Bottling Co., mentioned in dicta that "a plaintiff may be able to prove that same-sex harassment was discrimination because of sex by presenting evidence the harasser's conduct was motivated by a belief that the victim did not conform to the stereotypes of his gender."  Perhaps that is all the 3rd Circuit needs to rule in Mr. Prowel's favor.  For most thought, It seems like a decision of whether gender stereotyping exists is directly related to whether the harasser knows your sexual orientation or not.

AL