The 3rd Circuit Court of Appeals, which covers Pennsylvania employers, has issued an opinion that may result in many more sex discrimination lawsuits at work.
The case allowed an avowedly homosexual man to file a sex discrimination and harassment lawsuit based on his effeminate mannerisms—even as the court reiterated that sexual orientation isn’t covered by Title VII.
That leaves the door open for lawsuits against Pennsylvania employers that don’t have strict anti-harassment policies in place to protect those who don’t act the way stereotypical men or women act.
Recent case: Brian Prowel worked for Wise Business Forms for 13 years until he was laid off due to what the company said was a lack of work.
The last few years of his job had been marked by conflict because, as Prowel told the court, his co-workers reacted negatively to the way he dressed and acted.
Prowel identifies himself as an effeminate man and a homosexual and said that he didn’t fit in with the other men at Wise. He described his male co-workers as “blue jeans, T-shirt, blue collar workers, very rough around the edges.”
By contrast, Prowel said he speaks in a high voice, doesn’t curse, is well groomed and neat, wears dressy clothes, drives a clean car and talks about things like art, music, interior design and décor. He said he operates the machinery at work with “pizzazz.”
Prowel claimed that his co-workers called him “Princess” and “Rosebud,” and made comments such as “Did you see Rosebud sitting there with his legs crossed, filing his nails?” Other co-workers apparently called him more offensive names.
The company asked the court to toss out Prowel’s lawsuit because the federal Title VII does not cover discrimination or harassment based on sexual orientation.
Prowel said he wasn’t suing based on sexual orientation, but on discrimination based on perceived sex stereotypes. He likened his case to that of women who lose promotions because they curse and don’t act or dress feminine enough.
The 3rd Circuit Court of Appeals said the case should go to a jury trial. It reasoned that the fact that Prowel said he was gay didn’t kill his case when he had evidence that some of the harassment he endured was based on sex stereotypes on how a “real man” should act and what he should look like. (Prowel v. Wise Business Forms, No. 07-3997, 3rd Cir., 2009)
Final notes: This case may be an indication that federal appeals courts are looking for a way to protect employees who suffer on account of their sexual orientation without admitting as much. The court went as far as to say, “Harassment based on sexual orientation has no place in a just society,” even though Congress hasn’t made such discrimination illegal.
If you haven’t already, now is a good time to update your harassment policies. The best approach is to have zero tolerance for any sort of harassment, without worrying about why employees are doing the harassing.
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