Although federal workplace discrimination laws don't cover sexual orientation discrimination, a federal appeals court has ruled that an effeminate gay man must be allowed to pursue a Title VII claim alleging that he was targeted for harassment because he failed to conform to "gender stereotypes."
In Prowel v. Wise Business Forms Inc., the 3rd U.S. Circuit Court of Appeals found that in such cases, it is sometimes difficult to discern whether the harassment a worker suffered "was because of his homosexuality, his effeminacy, or both."
But a lower court erred, the appellate panel found, when it declared that plaintiff Brian Prowel's claim clearly fell on one side of the line, and that his sex discrimination claim was nothing more than "an artfully pleaded claim of sexual orientation discrimination."
Instead, the unanimous three-judge panel said, a jury should have decided the case because the evidence was "ambiguous on this dispositive question."
"The line between sexual orientation discrimination and discrimination 'because of sex' can be difficult to draw," U.S. Circuit Judge Thomas M. Hardiman wrote in an opinion joined by Judges D. Michael Fisher and Michael A. Chagares.
The ruling is a victory for attorney Katie R. Eyer of Salmanson Goldshaw, who argued the appeal for Equality Advocates, a Pennsylvania gay and lesbian civil rights organization.
"The court recognized that gay plaintiffs can prevail, if they prove their harassers were motivated in part by gender non-conformity -- even if those harassers were also motivated by sexual orientation," Eyer said. "Gay plaintiffs can no longer be held to a higher standard than everyone else."
Defense attorney Kurt A. Miller of Thorp Reed & Armstrong in Pittsburgh had urged the court to uphold U.S. District Judge Terrence McVerry's summary judgment dismissal of the case, arguing that a reversal would mean that every case of sexual orientation discrimination translates into a triable case of gender stereotyping discrimination.
Such a ruling, Miller argued, would contradict Congress' decision not to make sexual orientation discrimination cognizable under Title VII.
Hardiman disagreed, finding that all plaintiffs -- whether gay or not -- must be allowed to pursue claims that are premised on a gender-stereotype theory.
"Wise cannot persuasively argue that because Prowel is homosexual, he is 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," Hardiman wrote.
Instead, Hardiman said, "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."
According to court papers, Prowel began working for Wise in July 1991 in its Butler, Pa., facility, operating a nale encoder, a machine that encodes numbers on business forms. Thirteen years later, Prowel was told he was being laid off because of a lack of work.
But in his suit, Prowel claims that the true reason he was laid off was in retaliation for his complaints about gender-based harassment by other workers.
Prowel, who identifies himself as an effeminate man, testified that he believed his mannerisms caused him not to "fit in" with the other men at Wise who, he said, were beer-drinking, football-loving, blue-collar types and "very rough around the edges."
By contrast, Prowel testified that he has a high voice and doesn't curse; was very well-groomed; filed his nails instead of ripping them off with a utility knife; talked about things like art, music, interior design and decor; and pushed the buttons on the nale encoder with "pizzazz."
The suit said Prowel's effeminate traits led to harassment from other workers. One female co-worker frequently called Prowel "Princess" and other workers nicknamed him "Rosebud."
On one occasion, a pink, light-up, feather tiara with a package of lubricant jelly was left on Prowel's work machine.
The suit said Prowel also suffered religious discrimination because his own beliefs did not conform with those of most of his co-workers, and that he routinely found anonymous prayer notes left in his work area telling him he was a sinner for the way he lived his life.
In dismissing the suit, McVerry found that Prowel's sex discrimination claim failed because it was clearly a sexual orientation claim that had been repackaged as a gender stereotyping claim in an attempt to avoid summary judgment, and that his religious discrimination claim failed for the same reason.
Now the 3rd Circuit has upheld McVerry's ruling on the religion claim, but reversed his ruling on the sex discrimination claim.
Hardiman found that the evidence, when viewed in the light most favorable to Prowel, showed that he was harassed "because he did not conform to Wise's vision of how a man should look, speak, and act -- rather than harassment based solely on his sexual orientation."
McVerry "correctly noted" that there was also significant evidence of harassment motivated by Prowel's sexual orientation, Hardiman said.
But Hardiman said it was wrong to dismiss the suit because plaintiffs have the right to pursue a claim premised on "mixed motives."
"It is possible that the harassment Prowel alleges was because of his sexual orientation, not his effeminacy. Nevertheless, this does not vitiate the possibility that Prowel was also harassed for his failure to conform to gender stereotypes," Hardiman wrote.
"Because both scenarios are plausible, the case presents a question of fact for the jury and is not appropriate for summary judgment," Hardiman wrote.
NO RELIGIOUS DISCRIMINATION CLAIM
But Hardiman also found that the same logic dictated a dismissal of the religious discrimination claim.
"Prowel's religious harassment claim is based entirely upon his status as a gay man. Because Prowel's claim was a repackaged claim for sexual orientation discrimination -- which is not cognizable under Title VII -- we hold that the District Court did not err in granting Wise summary judgment on that claim," Hardiman wrote.
Miller was out of the country Friday and could not be reached for comment.
