While Title VII does currently not protect employees from discrimination on the basis of sexual orientation, the Third Circuit Court of Appeals recently found that a homosexual man may prevail on a claim of “gender stereotyping”. 

In Prowel v. Wise Business Forms, Inc., the plaintiff, an effeminate homosexual man, was harassed by co-workers and terminated after he complained about the harassment.  The plaintiff alleged that co-workers called him “fag”, “Princess” and “Rosebud”.  A newspaper clipping of a “man seeking man” ad was once left at his work station, as well as a pink feather tiara and lubricant jelly.  The plaintiff also overheard co-workers talk disapprovingly of his lifestyle and saw messages on the wall of the men’s restroom claiming that he had AIDS and engaged in sex with male co-workers.  After numerous complaints by the plaintiff, he was terminated with the employer citing lack of work.  He filed suit alleging violation of Title VII and the Pennsylvania Human Relations Act (PHRA) alleging that the employer harassed and retaliated against him based upon sex and religion and that the reasons given for his termination were pretextual for discrimination. 

In alleging sex discrimination, the plaintiff relied upon the “gender stereotyping” theory first recognized by the United States Supreme Court in the case Price Waterhouse v. Hopkins.  In Hopkins, a female accountant was denied partnership because she was perceived as masculine.  The Supreme Court held that Title VII prohibits discrimination against women for failing to conform to a traditionally feminine demeanor and appearance as it is discrimination “because of sex”.

The federal district court in Prowel granted summary judgment in favor of the employer holding that the plaintiff’s suit was merely a claim for sexual orientation discrimination -- which is not cognizable under Title VII -- repackaged as a gender stereotyping claim in an attempt to avoid summary judgment.

On appeal, the Third Circuit Court of Appeals reversed.  In holding that the plaintiff had a cognizable claim for “gender stereotyping”, the appellate court stated that, notwithstanding the fact that Title VII does not cover sexual orientation, homosexuals are not barred from bringing sex discrimination claims under Title VII as it clearly prohibits discrimination “because of sex”.  The appellate court noted that “the line between sexual orientation discrimination and discrimination ‘because of sex’ can be difficult to draw” and the relevant issue in the case was whether the plaintiff was discriminated against because of his homosexuality or effeminacy or both.

Ultimately, the appellate court in Prowel held that the plaintiff had adduced sufficient evidence of harassment based upon gender stereotyping, as well as harassment motivated by the plaintiff’s sexual orientation.  Nevertheless, the harassment motivated by sexual orientation did not vitiate the possibility that the plaintiff was also harassed for failure to conform to gender stereotypes.  As the evidentiary record was “ambiguous” on this critical issue, the appellate court pointed out that the issue was a question of fact for the jury and remanded the case back to the district court for trial. 

Although the fate of the plaintiff in Prowel thus remains uncertain, the Third Circuit‘s recognition of “gender stereotyping” as a cognizable cause of action under Title VII has expanded the boundaries of sex discrimination litigation in this part of the country.

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