Appeals court allows gender stereotype case

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An effeminate, gay man who claimed he was discriminated against because he didn't conform to a typical male stereotype at his Butler County workplace will get to argue his case to a federal jury.

Yesterday, the 3rd U.S. Circuit Court of Appeals reversed the decision of a district court judge that will allow the civil lawsuit filed by Brian Prowel against Wise Business Forms to move forward.

"There is no basis in the statutory or case law to support the notion that an effeminate heterosexual man can bring a gender stereotyping claim while an effeminate homosexual man may not," wrote 3rd Circuit Judge Thomas M. Hardiman.

Instead, the employee must simply present evidence of harassment or discrimination "because of sex," and let a jury decide, he said.

Attorneys for Mr. Prowel yesterday lauded the appeals court decision, calling it important for workplace discrimination law.

"This case is significant to any person in the workplace who doesn't meet expectations because of their gender," said attorney Timothy P. O'Brien.

Mr. Prowel, who worked for Wise for 13 years before being laid off in 2004, filed a lawsuit against the company in 2006, claiming that he was harassed and discriminated against by employees.

The claim was filed under Title VII -- the federal law that prohibits discrimination based on sex, religion, race and national origin.

As part of sex discrimination, the law covers gender stereotyping. It does not, however, protect against harassment based on sexual orientation.

Congress has tried to enact such a bill several times, but none has ever been passed in the House and Senate. As a result, discrimination based on sexual preference is handled by individual jurisdictions: Discrimination based on sexual orientation has been against the law in Pittsburgh for several years but only passed in Allegheny County in July.

In September 2007, U.S. District Judge Terrence F. McVerry dismissed Mr. Prowel's claims, saying that while the behavior the man had experienced was "reprehensible," he was discriminated against not because of his gender but because of his sexual preference.

In a 20-page, precedent-setting opinion issued yesterday, Judge Hardiman refuted that finding, instead writing that it is for a jury to decide if Mr. Prowel was discriminated against "because of sex." The case applies to all areas of the 3rd Circuit, which includes Pennsylvania, New Jersey, Delaware and the Virgin Islands.

He cited a 1989 case in which the Supreme Court held that sex discrimination laws protect women who fail to conform to a traditionally feminine demeanor and appearance.

"Unlike [in that case] there is no dispute that Prowel is homosexual. The difficult question, therefore, is whether the harassment he suffered at Wise was because of his homosexuality, his effeminacy, or both," Judge Hardiman wrote. "[V]iewing the facts and inferences in favor of Prowel leads us to conclude that the record is ambiguous" on this key question.

Among the allegations made by Mr. Prowel are claims that he was often called "Rosebud" and "Princess," that fellow employees left personal lubricant on his work station, and that he was harassed for walking effeminately and talking with a high voice.

"[I]t is possible that the harassment Prowel alleges was because of his sexual orientation, not his effeminacy," the three-judge panel wrote. "Nevertheless, this does not vitiate the possibility that Prowel was also harassed for his failure to conform to gender stereotypes."

In the past, said Katie R. Eyer, the attorney who argued Mr. Prowel's case to the 3rd Circuit, district courts often dismissed these types of complaint at summary judgment.

"Now, where there's doubt, the benefit of the doubt goes to the plaintiff," Ms. Eyer said. "Where there's a mixture of evidence, those are questions for the jury."

Mr. O'Brien said the next step in the case will be for Judge McVerry to set a trial date.


Paula Reed Ward can be reached at pward@post-gazette.com or 412-263-2620.


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