Article appeared in The Daily Record, Sept 28, 2009
A gay man who alleged his co-workers harassed him for years has won the right on appeal to take his case to a jury to decide if the co-workers’ actions constituted gender stereotyping, which is unlawful under Title VII of the 1964 Civil Rights Act, rather than sexual orientation bias, which is not, the U.S. Court of Appeals for the Third Circuit held Aug. 28. Prowel v. Wise Bus. Forms Inc., No. 07-3997 (Third Circuit Aug. 2009).
Prowel began working for Wise in July 1981. From 1997 until his termination, he operated a machine called a nale encoder, which encodes numbers and organizes business forms. On Dec. 13, 2004, after 23 years with the company, Wise informed Prowel it was laying him off for lack of work. Prowel was the only employee who was laid off in 2004.
Prowel alleges the following facts to support his claim of sex discrimination, specifically, sexual stereotyping, first recognized by the U.S. Supreme Court as a viable cause of action in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In stark contrast to other men at Wise, Prowel testified he had a high voice and did not curse; was very well groomed; wore what others would consider dressy clothes; was neat; 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”; walked and carried himself in an effeminate manner; drove a clean car; had a rainbow decal on the trunk of his car; talked about subjects such as art, music, interior design and décor; and pushed the buttons on the nale decoder with “pizzazz.”
Some of Prowel’s co-workers reacted negatively to his demeanor and appearance. During his the last two years of employment, a female co-worker frequently called him “Princess.” In a similar vein, co-workers made comments such as: “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.”
Prowel also testified that he is homosexual. At some point prior to November 1997, Prowel was “outed” at work when a newspaper clipping of a “man–seeking-man” advertisement was left at his workstation, along with a note stating: “Why don’t you give him a call, big boy?” Prowel reported the incident to two management-level personnel and asked that something be done. The culprit never was identified.
After Prowel was outed, some of his co-workers began causing problems for him, subjecting him to verbal and written attacks during the last seven years of his tenure at Wise. A female coworker called him “fag” and said “Listen, faggot, I don’t have to put up with this from you.” Prowel reported the incident to his shift supervisor but received no response.
At some point during the last two years of Prowel’s employment, a pink, light-up, feather tiara with a package of lubricant jelly was left on his nale decoder. The items were removed after Prowel complained to Henry Nolan, the shift supervisor.
On March 24, 2004, as Prowell entered the plant, he overheard a co-worker say: “I hate him. They should shoot all the fags.” Prowel also reported that incident to Nolan, who said he would look into it.
Prowel overheard other conversations between coworkers, one of whom was a supervisor, who disapproved of how he lived his life. Finally, messages began to appear on the wall of the men’s bathroom, claiming Prowel had AIDS and engaged in sexual relations with male co-workers. After Prowel complained, the company repainted the restroom.
The appeal highlights the fact that the line between sexual orientation discrimination and discrimination “because of sex” can be difficult to draw. In granting summary judgment for Wise, the district court found Prowel’s claim was an artfully pleaded claim of sexual orientation discrimination; however, the appellate court concluded that upon viewing the facts and inferences in favor of Prowel, the record is ambiguous on this dispositive question. Accordingly, Prowel’s gender stereotyping claim must be submitted to a jury.
The importance of the reversal on appeal is the recognition that “[a]n unlawful employment practice is established when the complaining party demonstrates that … sex … was a motivating factor for any employment practice, even though other factors also motivated the practice.” See 42 U.S.C. 2000e-2. The U.S. Court of Appeals for the Third Circuit has determined that because both scenarios are plausible — the claim based on sexual orientation and gender stereotyping — the case presents a question of fact for the jury and is not appropriate for summary judgment.
The notion that motives can be multi-determinative when considering discrimination based on sex is a fine realization.
