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A man who claims he was sexually harassed because his co-workers mistakenly perceived him to be gay cannot sue under Title VII unless he can also show that the mistreatment he suffered was somehow connected to his lack of conformity with stereotypes of how men and women should behave, a federal judge has ruled. In Bianchi v. City of Philadelphia, U.S. District Judge Anita B. Brody of the Eastern District of Pennsylvania found that such a plaintiff can survive summary judgment only if he presents “some evidence that the discrimination he suffered resulted from his failure to match the societal ideal of manliness.” With that sort of evidence, Brody said, the plaintiff’s claim would fall under Price Waterhouse v. Hopkins, in which a woman claimed she was discriminated against because her superiors thought she acted too much like a man. But without such evidence, Brody said, the perceived-as-gay plaintiff is not satisfying Title VII’s most basic requirement: that the harassment was “because of” the plaintiff’s “sex.” Brody found that plaintiff Robert Bianchi, a former firefighter, “failed to present evidence indicating he deviated from an ideal of manliness” and that his own testimony and pleadings show that his claim is for purely anti-gay harassment, which is not protected by Title VII. “His unwavering persistence in presenting his complaint as one concerning his alleged sexuality, rather than one concerning his alleged failure to meet a masculine ideal, defeats his Title VII harassment claim,” Brody wrote. But Bianchi and his lawyer, Andrew F. Erba of Williams & Cuker in Philadelphia, also won a few significant victories in the same opinion that cleared the way for a trial on his retaliation and free speech claims. Significantly, Brody found that Bianchi’s complaints about his own mistreatment were a matter of “public concern” and that a jury should decide whether he was targeted for retaliation after he spoke out. “When members of the fire department are spending their time placing used condoms in co-workers’ drawers, drafting fictitious letters and threatening their co-worker either because they believe he is gay or are unhappy with his leadership style, it is a matter of public concern,” Brody wrote. “Not only was Bianchi speaking out against his own treatment; he exposed conduct that might cause a public outcry about the general fitness and discipline within an important public institution. Even though the harassment he experienced may have fallen outside of the protections of Title VII, Bianchi was still entitled to voice his concerns about practices within the Philadelphia Fire Department and in doing so engaged in conduct protected by the First Amendment.” Brody’s opinion offers a road map for how to plead a claim that fits within the confines of the recent pronouncements on same-sex harassment cases from the U.S. Supreme Court and the 3rd U.S. Circuit Court of Appeals. Same-sex harassment claims percolated in the lower courts with varying results until 1998 when the Supreme Court handed down Oncale v. Sundowner Offshore Services Inc. Last year, the 3rd Circuit emphatically declared in Bibby v. Philadelphia Coca-Cola Bottling Co. that the Oncale decision should not be read as expanding Title VII to include protection against anti-gay discrimination. Brody found that Bibby outlined three possible theories for same-sex harassment cases: � A scenario in which the harassment is motivated by the aggressor’s sexual desire. � Showing that a harasser displays hostility toward the participation of a particular sex in the workplace. � Illustrating that the harasser’s conduct was motivated by a belief that the victim did not conform to the stereotypes of his or her gender. Bianchi’s case, she said, “does not fall into any of the three categories enumerated in Bibby. Since the case clearly didn’t fit one of the first two theories, Brody focused mostly on the third. Bianchi joined the Philadelphia Fire Department in 1977. After 17 years of service, he was promoted in 1994 to lieutenant. In March 1996, Bianchi was assigned to Ladder Company No. 2, Platoon A, at the firehouse at 4th and Arch Streets in Philadelphia, and soon began to institute changes in the discipline and training at the firehouse, some of which were not well-received by members of the company. Bianchi claims the sexual harassment began within his first month of assuming command. He said he discovered several used condoms inside his desk drawer and began finding explicit homosexual playing cards inside his desk, his uniform and his running gear. Later, he found envelopes with the return address from the Gay Firefighters Association in his desk. At first, Bianchi opted not to complain, but he said he was forced to go to his superiors when the harassment continued for months. He claims no official action was taken but that senior members of the department spoke to his platoon, advising platoon members that the conduct would not be tolerated. In November 1997, Bianchi said, he grew dissatisfied and told his battalion chief that he was taking his complaints to the police, the Civil Service Commission and his union. Soon after, Bianchi said, he was removed from his post and given a job in the department’s safety office. In January 1998, the city notified Bianchi that he was removed from firefighting line duties and would be subject to physical and mental exams before he could be returned to full work. But even after he had returned to work, Bianchi claims, the harassment continued. He said he received an anonymous letter, smeared with feces, that accused him and his twin brother, also a firefighter, of being “queers” and that said, “We hear you are back to work in a pussy job.” An investigation of the letter incident was launched, and investigators found that the firehouse was a “hostile environment” for Bianchi. But none of the responsible individuals was identified. Soon after, Bianchi took a medical leave at the advice of his doctor. Although he said he attempted to return to work, he was never reinstated. Ultimately, the city terminated him, saying he was deemed to have abandoned his job. Brody found that since the Supreme Court’s Oncale decision, several federal appellate courts have held that same-sex harassment claims can be styled under a Price Waterhouse theory by alleging that a gay plaintiff suffered discrimination because he failed to conform to gender stereotypes. In Doe v. City of Belleville, the 7th Circuit green-lighted a harassment claim brought by a teen-age boy who said his male co-workers were motivated by their belief that because he wore an earring, he was not sufficiently masculine. And in Nichols v. Azteca Restaurant Enterprises Inc., the 9th Circuit upheld a claim by a plaintiff who said that he was sexually harassed because he was “effeminate” and that his male co-workers referred to him as “she” and “her” and called him a “faggot” and a “female whore.” But Brody found that neither of the cases saved Bianchi’s Title VII claim because the connection to gender stereotypes was too “attenuated.” Instead, she said, the motivation of Bianchi’s harassers might have been their belief that he was gay or that they wanted to make knowingly false accusations because they resented his leadership. She also found the harassment might have been mere “horseplay.” Deputy City Solicitors Michael Holmes and Milton Velez argued that Bianchi’s own testimony shows that he believed his tormentors mistakenly believed that he was a homosexual. Erba, Bianchi’s lawyer, argued that Bianchi’s claim should go forward because he had enough evidence to raise the inference that his harassers targeted him because he failed to conform to their ideal of masculinity. Brody disagreed, saying Bianchi was asking her to make “a series [of] inferences” to connect the taunts to gender stereotypes. “These links that Bianchi could draw between accusations of his homosexuality and some inherent unmanliness is too attenuated to meet his burden on summary judgment,” Brody wrote. In Price Waterhouse, City of Belleville and Nichols, she said, “the gender stereotyping was more explicit. “ In Bianchi’s case, she said, “the only evidence that might directly link the harassment of Bianchi to a gender stereotype is the reference in the April 1998 letter to Bianchi’s new position in the fire department.” A “pussy job,” Brody wrote, is easily understood as “a job for a woman,” and implicates his masculinity. But Brody said Bianchi’s own lawyer didn’t endorse that theory. “Bianchi might have made an argument that because he failed to conform to the manly stereotype and was regarded in some way as effeminate, his co-workers targeted him and harassed him ‘because of sex.’ Plaintiff, however, has not endorsed this theory of the case, and, absent that support, I cannot,” Brody wrote. Brody also rejected the argument that Bianchi’s claim was valid because the harassment was sexual. “The actions allegedly taken against Bianchi undoubtedly constitute harassment, but simply because the harassers used materials of a sexual nature does not mean that Title VII bars the harassment. The Bibby decision makes it clear that only three means of showing same-sex harassment exist, and this is not one of them,” Brody wrote.

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