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Gay male workers suing for sex discrimination under Title VII have had little success with the argument that they were harassed because they failed to live up to the “stereotype” of being a man. Federal judges, however, are increasingly holding that the “stereotype theory” is a good one for gay plaintiffs to pursue � even if the right case has yet to come along. A Case to Test the Theory The stereotype theory was tested recently in a decision in federal district court in Philadelphia with a suit filed against Independence Blue Cross. Harry Kay, a former product analyst at IBC, argued that he was harassed by his coworkers because they believed he did not live up to male stereotypes. In May, Philadelphia U.S. district judge Berle Schiller found that Kay’s suit contained not only a valid theory, but also facts fitting the theory. Ultimately, however, the judge ruled against Kay because he could not prove that the alleged harassment was severe or that the company did not respond to his complaints. In his 18-page decision, Schiller rejected a defense argument that Kay’s case was fatally flawed because he was stereotyped as acting like a homosexual man, and not because he was seen as acting like a woman. IBC’s lawyer, Steven Wall of Morgan Lewis & Bockius, argued that the gender stereotyping theory, which was endorsed by the U.S. Supreme Court in 1989 in Hopkins v. Price Waterhouse, works only if the plaintiff can show that he or she was mistreated for acting like the other gender. Ann Hopkins, the plaintiff in the 1989 case, had a valid claim, Wall said, because she was discriminated against for acting too much like a man. For Kay to succeed, Wall said, he would have to show that his coworkers believed he acted too much like a woman. Schiller disagreed, saying, “This argument frames the issue in a misleading fashion.” Quoting from the 2001 decision by the U.S. Court of Appeals for the Third Circuit, Schiller found that gender stereotyping claims may be brought by men when they have been harassed for not meeting “societal stereotypes of how men ought to appear or behave.” A “Real Man” As a result, Schiller said, Kay’s burden was to show that he was discriminated against “for not conforming with norms for the male gender.” Kay did just that, Schiller found, by showing that one of his coworkers anonymously sent him an advertisement for a gay telephone chat line with a handwritten remark saying: “A real man in the corporate world would not come to work with an earring in his ear. But I guess you will never be a ‘real man’!!!!!!” Schiller found that the mailing “plainly indicated” that Kay “was targeted because his appearance was seen as less than stereotypically masculine.” Likewise, Schiller found that Kay also satisfied the gender stereotyping theory. As a result, Schiller found that Kay cleared the first important hurdle by stating a prima facie case of discrimination. “Contrary to defendant’s assertions, having shown that his coworkers subjected him to abuse because they found him in some way not to be stereotypically masculine, plaintiff need not specifically show that he was viewed as womanly,” Schiller wrote. Schiller nonetheless found that Kay’s case failed because he could not show that the harassment he suffered was “pervasive” or “severe.” The judge also concluded that IBC was entitled to summary judgment because Kay was unable to demonstrate that his employer was negligent.
A version of this story originally appeared in The Legal Intelligencer, a sibling publication of Corporate Counsel and a part of American Lawyer Media.

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