Friday, September 4, 2009

Federal Court Decision: Is Gender Stereotyping of Gay Employees Illegal?

The US Third Circuit Court of Appeals, covering New Jersey, Pennsylvania and Delaware, recently released a decision in the case of Prowel v. Wise Business Forms. This case is notable because it finds enough evidence to move forward with a claim of employment discrimination based on "gender stereotyping" against a gay man under Title VII of the Civil Rights Act of 1964.

This is a hot topic among courts these days, with the nearby Second Circuit, which covers New York, Connecticut and Vermont, holding in previous cases that such a claim is not allowed when the complaining employee is a gay person, because discrimination based on sexual orientation is not prohibited by Title VII. They do also say that theoretically such claims by gay employees should be allowed, but then they throw up their hands and say something like "it's wayyy too hard to sort out all these different types of gay people, so fuhgeddaboutit." Of course, the Second Circuit's position is bogus, because gender is different from sexual orientation. This is why the ENDA bill is important, because it will get rid of these legal technicalities that arbitrarily and capriciously provide job protections to some, but not to others similarly situated.



As I recently discussed at length in a law review article published in the Temple Political and Civil Rights Law Review, the meaning of the word "sex" now includes the idea of gender, including such concepts as gender stereotyping, gender identity and gender expression. Thus, when Title VII prohibits discrimination "because of sex," it should now be understood to include all that gender and its related components.

In this Third Circuit decision, the Court made the correct decision, allowing a claim of gender stereotyping to move forward, unlike the ill-conceived rulings in the Second Circuit.

In this case, Prowel, a gay man employed by Wise Business Forms, sued for discrimination because of sex and religion under Title VII and the Pennsylvania Human Relations Act. The lower court issued "summary judgment" in favor of the employer, Wise, throwing the case out of court. The appeals court reversed this decision, reinstating the lawsuit, and allowing Prowel to get his case in front of a jury.

On a "summary judgment" motion like this, the only question is whether there is enough evidence to go forward to a trial. The truth of the plaintiff's claims are not judged. Rather, the only question is whether, if everything the plaintiff says is true, there is a possible legal claim that can win. If the plaintiff's complaint doesn't state a good legal case, it's thrown out of court and the lawsuit ends there, and the defendant can stop spending time, effort and money defending the case. If there is a possible legal claim, the case moves forward to a trial, usually in the next year or two, wherein a determination is made of whether the plaintiff's claims are true.

The Facts

Here's the claims made by the plaintiff employee, Prowel, in brief. After 13 years with the company, Prowel was laid off in 2004. The reason given was lack of work. Prowel sued for discrimination, noting that he is an "effeminate man" whose mannerisms caused him not to fit in with the other men at Wise. Some of Prowel’s co-workers made negative comments, both orally and in writing, calling him "Princess," "Rosebud," and faggot, and putting graffiti on the wall stating that he had AIDS.

Prowel also said the company discriminated against him because his conduct did not conform to the company’s religious beliefs. He found anonymous prayer notes on his work machine on a daily basis, and occasionally notes stating he was a sinner for the way he lived his life, and "Rosebud will burn in hell." Another co-worker who disapproved of Prowel brought religious pamphlets to work that stated "the end is coming" and "have you come clean with your maker?" Prowel's co-workers shunned him and his work environment became extremely stressful and debilitating. He also felt that he received more work than the others. He complained to management about these things, but to no avail.

Seven months after a meeting with the general manager to discuss Prowel’s concerns about his workload, he was terminated effective immediately for "lack of work."

The Court's Reasoning

Prowel sued, but the District Court threw the case out of court on summary judgment because it said that this was "merely" a claim for sexual orientation discrimination not covered under Title VII. The court said that Prowel was repackaging a sexual orientation claim as a gender stereotyping claim and a religious discrimination claim in an attempt to avoid the fact that sexual orientation discrimination is permitted by law.

The appeals court reversed this decision, allowing Prowel's claim to move forward. The appeals court immediately focused on a similar case that it decided in 2001, the often-cited decision in Bibby v Philadelphia Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001). In that case, the court dismissed a claim of sexual harassment by a gay employee who was assaulted by co-workers and subjected to crude remarks and sexual graffiti. The Court said the claim was written up in such a way that it appeared to be a case of sexual orientation discrimination, which is not covered by Title VII. However, the Court also said that "This does not mean, however, that a homosexual individual is barred from bringing a sex discrimination claim under Title VII."

What is the difference between a sexual harassment claim and a sexual orientation discrimination claim? There's really not much of difference, but enough so the lawyers can make a mountain out of that molehill. In the Bibby case, while the Third Circuit threw out that lawsuit, it admitted that a gay plaintiff could raise a gender stereotyping claim, if it is written up to show that they were being punished for noncompliance with "gender stereotypes." This is why lawyers are worth so much money, because millions ride on the difference between writing up your lawsuit with the magic words. "No, Your Honor, my client did not get beat up because he's gay. He was beat up because he's gender non-conforming."

Anyway, Bibby's case got dismissed because his lawyers didn't write it up as "gender stereotyping." The Prowel court puts a fig leaf on this, sying that Bibby didn't present enough evidence to show gender stereotyping. I did hear a rumor that this was some kind of oddball strategy decision by Bibby's lawyers, but my guess is that no one really understood the difference between the two claims way back in 2001.

Judges do not like overruling themselves; it looks bad and generates a lot of criticism. Sometimes it's more honest to do so, particularly when there is an arbitrary distinction like the one here which nobody can really understand. But I don't like admitting my mistakes either, so I'm prepared to cut them some slack. Here, the Third Circuit said that Prowel, unlike Bibby, showed evidence of harassment based on gender stereotypes, rather than sexual orientation, because:

He acknowledged that he has a high voice and walks in an effeminate manner. In contrast with the typical male at Wise, Prowel testified that he: did not curse and was very wellgroomed; filed his nails instead of ripping them off with a utility knife; crossed his legs and had a tendency to shake his foot “the way a woman would sit.” Prowel also discussed things like art, music, interior design, and decor, and pushed the buttons on his nale encoder with “pizzazz.” Prowel’s effeminate traits did not go unnoticed by his co-workers, who commented: “Did you see
what Rosebud was wearing?”; “Did you see Rosebud sitting there with his legs crossed, filing his nails?”; and “Look at the way he walks.” Finally, a co-worker deposited a feathered, pink tiara at Prowel’s workstation.


The Court said this differed from the Bibby case because Prowel was harassed because he did not conform to Wise’s vision of how a man should look, speak, and act — rather than harassment based solely on his sexual orientation. While it acknowledged that much evidence also showed harassment motivated by sexual orientation, the Court said that a case can be made that both were occurring at the same time, though not every case will involve both.

I'm not sure I see such a clear-cut difference from the Bibby case, where the employee was subjected to slurs such as "everybody knows you're gay as a three dollar bill," "everybody knows you're a faggot," and you're a "sissy." One definition of "sissy" is an effeminate man. It sounds like what the Prowel Court is saying is that, if Bibby had been called a sissy more, and a faggot less, or if they would have used the word "queer" or "faggy" rather than "gay" or "faggot," then he would have had a claim. That's just silly.

The Religious Discrimination Claim

The Court dismissed Prowel's claim of religious discrimination because Prowel admitted that the only way in which he failed to conform to his co-workers’
religious beliefs was by virtue of his status as a gay man, considered by some co-workers to be contrary to being a good Christian. The Court concluded that such discrimination was not because of religion, but because of his sexual orientation. The Court rejected a comparison to similar case from California, where the employer was found liable for religious discrimination when he openly criticized the employee's homosexuality based on religious grounds. There, the Court said, the employer went further, and insisted that the employee convert to the employer’s faith and lead the company’s daily prayer service.

Again, it seems to me that the Court makes distinctions without a difference. What would this court do in the case of an employee who is not himself gay, but is, for example, a gay-affirming lay minister, and who is therefore discriminated against. I think the Court would have no choice but to admit that religious discrimination occurred, and not sexual orientation discrimination. Were that employee, however, to himself be gay, then it sounds as if the Court is saying that it would then not be a case of religious discrimination unless the employer itself demanded a religious conversion and taking part in religious activities. I'm not sure of the difference between such a demand and the daily religious exhortations of Prowel's co-workers.

I do see an important difference between the religious exhortations in the Prowel case, and the right of an employer to be religious, have religious views, and to tell employees about religion. Since the "separation of church and state" doctrine applies only the government, private employer are free to do all these things. However, that doesn't mean you can allow co-workers to freely tell other employees that they are bad and wrong and going to hell for not following a particular religion or religious practice, and then fire them in retaliation for complaining about it. I'm all in favor of religious freedom, but paraphrasing Justice Holmes, my right to swing my Bible ends where the other man's nose begins.

At the same time that I am critical of these doctrines, I want to make it clear that I am not critical of these judges. They are attempting to ameliorate the harsher aspects of the law, under which some courts have routinely denied any relief to gay employees for sexual harassment simply on the ground that they are gay. In fact, I've been told these three judges are all George W. appointees, making their decision all the more praiseworthy, as they could have mimicked the Second Circuit (discussed above) but refrained.

This area of the law, so troubled and troubling at the same time because of its arbitrary and capricious treatment of similarly situated plaintiffs, will hopefully soon be righted by the passage of the Employment Non-Discrimination Act, clarifying that job discrimation based on sexual orientation and gender identity is prohibited.

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