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Issue September 7, 2009 |
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PHILADELPHIA—A federal appeals court ruling that a gay man is not necessarily barred from filing a sexual discrimination claim under Title VII of the Civil Rights Act, even if there is no federal law banning discrimination based on sexual orientation, is one many observers say could be influential.
The ruling by the 3rd U.S. Circuit Court of Appeals in Philadelphia in Brian D. Prowel vs. Wise Business Forms Inc. says Mr. Prowel was told that a lack of work was the reason he was terminated in 2004. Most recently in his 13-year career with Butler, Pa.-based Wise, he operated a nale encoder, a machine that encodes numbers and organizes business forms.
Mr. Prowel, who is homosexual, contended he was the victim of sex discrimination and retaliation. Unlike the “genuine stereotypical male” at the plant, he said he “had a high voice and did not curse; was very well-groomed; wore what others would consider dressy clothes; was neat” and “filed his nails instead of ripping them off with a utility knife,” among other characteristics.
He said he was called “princess,” “rosebud” and “faggot” by co-workers, among other incidents. He said he was terminated several months after his employer learned he had asked co-workers to testify on his behalf in a lawsuit against the company.
In its unanimous decision overturning a lower court's dismissal of the case, the three-judge appeals court panel said Congress has rejected legislation that would have extended Title VII to cover sexual orientation.
“This does not mean, however, that a homosexual individual is barred from bringing a sex discrimination claim under Title VII, which plainly prohibits discrimination because of sex,” the court said in the ruling, which sets a precedent in the circuit.
“The line between sexual orientation discrimination and discrimination "because of sex' can be difficult to draw,” and the record here “is ambiguous on this dispositive question. Accordingly, Prowel's gender stereotyping claim must be submitted to a jury.”
When the facts “are conspired in the light most favorable to Prowel, they constitute sufficient evidence of gender stereotyping harassment—namely, 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,” said the court, which said a jury should consider Mr. Prowel's sexual discrimination and retaliation claims.
The court, however, upheld the lower court's dismissal of Mr. Prowel's religious discrimination claim (see related story).
Wise's attorney, Kurt A. Miller, a partner with Thorp Reed & Armstrong L.L.P. in Pittsburgh, declined comment.
Katie R. Eyer, Mr. Prowel's attorney and an associate with Salmanson Goldshaw P.C. in Philadelphia, said the decision will be “highly significant and influential.”
While many courts have recognized that these types of claims can be brought, they have said it is “too hard to sort out” what is gender stereotyping and what is sexual orientation, and have thrown the cases out.
This 3rd Circuit ruling “really signals a new approach in how these cases are handled,” said Ms. Eyer, who represented Mr. Prowel on behalf of the Philadelphia-based Equality Advocates Pennsylvania, a gay rights organization.
Jeffrey A. Pasek, a defense attorney with Cozen O'Connor P.C. in Philadelphia, said it's been known for at least 30 years that Title VII can be extended to cover gender stereotypes.
He cited the U.S. Supreme Court's 1989 decision in Price Waterhouse vs. Ann Hopkins, in which the court ruled that a gender stereotyping claim could be filed under Title VII in the case of the woman allegedly denied a partnership because she did not act in a feminine manner.
The Prowel decision “will be influential because the case helps illustrate that if you are a homosexual, you don't lose the right to bring a gender stereotyping case,” said Mr. Pasek. The ruling establishes that gender stereotyping and sexual orientation factors both can be present, he said.
Amy L. Bess, a partner with law firm Sonnenschein Nath & Rosenthal L.L.P. in Washington, said the 3rd Circuit is well respected and its ruling in Prowel “may provide some guidance and framework for other courts to analyze sex discrimination claims under Title VII in a more expansive way.” She also said the ruling could lay the groundwork to allow claims that previously were dismissed.
Thomas H. McDonough, senior counsel with law firm Wisler Pearlstine L.L.P. in Blue Bell, Pa., said the decision “gives the plaintiffs bar an indication that adducing sufficient evidence of gender stereotyping is what is required for gay employees to state claims under Title VII,” assuming such evidence exists.
Brian D. Prowel vs. Wise Business Forms Inc.; 3rd U.S. Circuit Court of Appeals, No. 07-3997; Aug. 28, 2009
For reprints of this story, please contact Lauren Melesio at 212-210-0707 or email lmelesio@crain.com
