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Gay male workers who claim they were harassed on the job have so far had little success when suing for sex discrimination under Title VII on a theory that they were targeted because they failed to live up to the “stereotype” of what it means to be a man. But in an increasing trend, federal judges are holding that the stereotype theory is a good one for gay plaintiffs to pursue — even if the right case has yet to come along. Harry Kay’s suit against Independence Blue Cross takes that trend one step further now that U.S. District Judge Berle M. Schiller in Philadelphia has found that the suit alleged not only a valid theory, but also facts fitting the theory. But in the end, Schiller found that Kay’s case nonetheless failed because he couldn’t prove that the harassment he allegedly suffered from his co-workers was “pervasive” or “severe” or that IBC failed to respond to his complaints. In his 18-page decision in Kay v. IBC, Schiller rejected a defense argument that Kay’s case was fatally flawed because he was stereotyped as acting like a homosexual male and not because he was seen as acting like a woman. IBC’s lawyer, Steven R. 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 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 co-workers 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 3rd U.S. Circuit Court of Appeals in Bibby v. Phila. Coca Cola Bottling Co., 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.” 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 co-workers 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 with his claim that once, at a water cooler, 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.” Schiller found that the comments over Kay’s failure to change the water-cooler bottle showed that he “was mocked for not undertaking an activity that involves some physical strength, i.e., the mocking was aimed at Mr. Kay’s masculinity, or perceived lack thereof.” 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 co-workers 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 also rejected Wall’s argument that the use of words such as “gay,” “queer” and “faggot” in the derogatory remarks directed at Kay proved that “there can be no doubt that plaintiff’s claim is essentially one for sexual orientation discrimination that is not covered by Title VII.” That argument, Schiller said, “amounts to an attempt to rely on the evidence that harassment may have also been motivated by an anti-gay animus as a defense to the Title VII claim.” The 3rd Circuit rejected that argument in Bibby, Schiller noted, by holding that plaintiffs in Title VII actions are not required to “prove that their harassers were not motivated by anti-gay animus.” The Bibby court, Schiller said, held that once a plaintiff has shown that the harassment was motivated by his or her sex, “it is no defense that the harassment may have also been partially motivated by anti-gay or anti-lesbian animus.” A judge in the District of Oregon reached a similar conclusion last year in Heller v. Columbia Edgewater Country Club, Schiller noted, holding that “nothing in Title VII suggests that Congress intended to confine the benefits of that statute to heterosexual employees alone.” Wall argued that the U.S. Supreme Court hinted strongly that it would reject the theory by summarily reversing a decision by the 7th U.S. Circuit Court of Appeals in Doe v. City of Belleville. But Schiller said it would be wrong to read too much into the Supreme Court’s decision to vacate the judgment in City of Belleville and remand the case for further consideration in light of Oncale v. Sundowner Offshore Services Inc., the 1998 case in which the justices held that Title VII provides a cause of action for same-sex sexual harassment. Instead, Schiller said he agreed with his colleague, U.S. District Judge Anita B. Brody, who offered her analysis of the import of the high court’s order in Bianchi v. City of Philadelphia. In Bianchi, Brody found that “the gender stereotypes holding of City of Belleville was not disturbed” and that “absent an explicit statement from the Supreme Court that it is turning its back on Price Waterhouse, there is no reason to believe that the remand in City of Belleville was intended to call its gender stereotypes holding into question.” The City of Belleville case settled before there was a decision on remand. As did Schiller, Brody approved of a gay man’s pursuing a Title VII claim on a gender stereotyping theory but found that the plaintiff’s case fell short. Schiller found that Kay’s case was stronger than Bianchi’s because the facts meshed with the theory. In Bianchi, Schiller noted, the only evidence that directly linked the harassment of plaintiff Robert Bianchi to a gender stereotype was a reference in a letter to his new position in the fire department as a “pussy job.” By contrast, Schiller said, Kay’s claims fit the theory more closely by showing that he was subjected to adverse treatment because his co-workers’ perceptions that he was a “miss prissy” or less than a “real man.” “As such, there is affirmative evidence that the harassment was related to perceptions about Mr. Kay’s masculinity, rendering the conduct gender stereotyping actionable under Title VII,” Schiller wrote. CONDUCT NOT PERVASIVE But Schiller nonetheless found that Kay’s case ultimately failed because he couldn’t show that the harassment he suffered was “pervasive” or “severe.” “The sporadic nature of the harassment, which included considerable periods without any reported instances, cuts against plaintiff’s argument that the discriminatory conduct unreasonably interfered with his work performance,” Schiller wrote. “It is significant that plaintiff was never physically threatened or humiliated. Viewed as a whole, the mistreatment directed at plaintiff — while not trivial — involved conduct more accurately described as offensive utterances than something more egregious.” Schiller also concluded that IBC was entitled to summary judgment because Kay was unable to show that his employer was in any way negligent. IBC had a grievance procedure in place, Schiller found, and responded to Kay’s complaints with investigations and, in some instances, reprimands. The reprimands apparently worked, Schiller concluded, since Kay never had reason to complain again about the two workers who were warned for their harassment. “In light of the steps taken by IBC in response to Mr. Kay’s grievances, I conclude that no reasonable jury could find that Mr. Kay has established the existence of respondeat superior liability,” Schiller wrote.

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