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When a gay man is harassed by his co-workers, can he bring a federal claim under Title VII on the theory that he was the victim of sex discrimination because he didn’t live up to the “stereotype” of what it means to be a man? That’s the threshold question that U.S. District Judge Berle M. Schiller of the Eastern District of Pennsylvania must answer when he rules on a summary judgment motion in Kay v. Independence Blue Cross. In oral arguments Wednesday, it seemed that the plaintiff is likely to win the theoretical battle but may lose the war for lack of evidence that his employer’s response to his complaints was inadequate. In the suit, Harry Kay claims that his first five years working as a claims systems analyst at IBC was problem-free. But in 1997, when he was transferred to another floor to begin a post as a product analyst, Kay claims, he was immediately targeted for harassment by his co-workers. Kay, who is represented by attorneys Arthur B. Jarrett and Jonathan J. James of Philadelphia’s James, Jarrett & Schwartz, claims the harassment ultimately forced him to take a disability leave because IBC’s management did not take appropriate steps to stop it. The suit says Kay overheard two male co-workers in the restroom, one saying to the other, “Did you see that fag that moved up on the floor yesterday?” He claims he later saw a petition on the wall that said: “If you want this queer off the floor, sign here.” Kay claims he later found a note from a co-worker that said, “Stop staring at me in the bathroom and on the floor, you faggot.” The harassment also came in the form of anonymous voicemails, the suit says, including some that contained name-calling and others that consisted of heavy breathing. Once, at a water cooler, Kay claims, a female co-worker commented, “You are just so gay” when Kay was unable to change the water-cooler bottle. When another man completed the job, Kay said, the woman yelled out, “I’m glad that there’s a real man on the floor.” In oral arguments, defense attorney Steven R. Wall of Morgan, Lewis & Bockius set out to convince Schiller that the theory of Kay’s case was fatally flawed because all of his evidence shows that he was harassed because of his sexual orientation and not because of his sex. But early on, Wall was meeting resistance from Schiller. “Do you concede that gender stereotyping is actionable under Title VII?” Schiller asked. “I do, but let me explain what that is,” Wall said. Wall argued that the gender stereotyping theory is based on the U.S. Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins that cleared the way for a woman to sue under Title VII because her bosses believed that she acted too much like a man. In Kay’s case, Wall said, the theory would work only if Kay had evidence that the harassment he suffered was the result of his co-workers believing “that he acted too much like a female.” Schiller interrupted and added, “Or that he didn’t live up to what a male is supposed to be.” But Wall pressed his point, saying, “We have heterosexual men; we have homosexual men — they’re both men. … The distinction in this case is that every single piece of harassment was directed to his sexual desires.” Schiller asked if the alleged harassers were making that distinction when they harassed Kay. Wall said the conduct was the result of “bias and ignorance.” “I’m not condoning that behavior,” Wall said, “but federal law does not prohibit it.” The law, Wall said, “requires that the evidence show that he was discriminated against not because he acted like a homosexual man or not because he didn’t act like a heterosexual man. The law requires that the evidence show that he acted like a woman.” Kay’s case fails, Wall argued, because “it’s not enough to show that he didn’t act like a heterosexual man, because you are still a man if you are not a heterosexual.” But Schiller suggested that Wall was taking too narrow a reading of the case law on gender stereotyping. “Gender stereotyping is that the person does not comport with, and you attack that person for not comporting with, your notions of what that gender is supposed to act like,” Schiller said. But Wall said the case law also clearly holds that “if not acting like a man because you sleep with men, that is not actionable.” Schiller said he read Kay’s claim as pleading “not that he acted like a woman but that he didn’t act as the person who the alleged harasser thought a man should act.” Wall said such a theory doesn’t fly under Title VII. “Your honor, if your point is that I, as a heterosexual man, believe that a man should act heterosexually, and any evidence of gayness is not manliness, that does not violate the law — as a matter of law,” Wall said. Wall seemed to have more success when he moved on to his next two arguments. The second fatal flaw in Kay’s case, Wall said, is that the alleged harassment was not “severe” or “pervasive” enough to make a Title VII claim. The evidence, Wall said, showed that over a 2 1/2 year period, Kay received a handful of harassing phone messages, heard three derogatory comments and received a few offensive documents. The harassment was “not frequent,” Wall said, since Kay himself admitted that “months would go by” in which “nothing would happen.” And none of the incidents was severe, Wall said, since Kay concedes that they were not physically threatening. “We’re not here to regulate boorish behavior in the workplace,” Wall said. The third fatal flaw, Wall said, is that IBC can’t be considered negligent in its response to Kay’s complaints since every individual harasser was promptly reprimanded and never harassed Kay again. The company also provided sensitivity training to the entire floor, Wall said, and on several occasions placed taps on Kay’s phone to ferret out the sources of the harassing voicemails. “It’s not our burden to prove that we did everything humanly possible to stop this from happening,” Wall said. Wall said Kay first pursued a claim against IBC under the Philadelphia Fair Practices Ordinance and lost when his case was heard by the Philadelphia Commission on Human Relations. His federal claim should be rejected, Wall said, because he “turned around and gerrymandered a new claim in this court.” Kay’s lawyer, Arthur Jarrett, urged Schiller to approve the theory of the case, saying the evidence showed that Kay’s co-workers were motivated to harass because they believed Kay didn’t live up to male stereotypes. “The issue is whether the conduct at IBC can be … viewed as an attack on Mr. Kay based upon perceptions of manhood or womanhood,” Jarrett said. The worker who told Kay “you’re so gay” later testified that what she meant by her comment was that Kay was “prissy” and “effeminate,” Jarrett said. But Schiller was soon pressing Jarrett with questions that had nothing to do with the theory of the case. Insisting on a response to Wall’s second and third arguments, Schiller asked if the response from IBC was effective in stopping the harassment. Jarrett said one alleged harasser testified that he did not believe he had been reprimanded. But Schiller said the evidence also showed that the same man had never harassed Kay again. Jarrett said that while he didn’t have any evidence of later harassment by the man, there was no way to know if he was responsible for some of the anonymous harassment. And since Kay was ultimately forced to leave his job on disability due to stress from his work environment, Jarrett suggested that the harassment could be considered severe.

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