In Prowel v. Wise Business Forms, Inc., the Third Circuit reversed a district court’s granting of summary judgment in favor of an employer on a claim of gender stereotyping discrimination. The claim was brought by an admittedly homosexual employee who alleged he was subject to gender discrimination, retaliation and religious discrimination based on his effeminate actions and mannerisms. The Third Circuit acknowledged that Title VII does not protect employees from discrimination based upon their sexual preference, but may allow claims for gender stereotyping. The Third Circuit noted that a “gender stereotyping” claim was first recognized by the Supreme Court as a viable cause of action in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
In reversing summary judgment, the Third Circuit held that
"…every case of sexual orientation discrimination cannot translate into a triable case of gender stereotyping discrimination, which would contradict Congress’s decision not to make sexual orientation discrimination cognizable under Title VII. Nevertheless, [an employer] cannot persuasively argue that because [an employee] is homosexual, he is precluded from bringing a gender stereotyping claim. 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. As long as the employee — regardless of his or her sexual orientation — marshals sufficient evidence such that a reasonable jury could conclude that harassment or discrimination occurred “because of sex,” the case is not appropriate for summary judgment."
The Court’s decision raises obvious issues for employers in dealing with sexual harassment and sex discrimination claims. Employers cannot automatically assume the sexual orientation claims will be dismissed by a court as unprotected under Title VII. The allegations of discrimination must be evaluated in light of gender stereotypes.
In Prowel, the employee alleged the following facts in support of his claim:
"Prowel identifies himself as an effeminate man and believes that his mannerisms caused him not to “fit in” with the other men at Wise. Prowel described the “genuine stereotypical male” at the plant as follows:
[B]lue jeans, t-shirt, blue collar worker, very rough around the edges. Most of the guys there hunted. Most of the guys there fished. If they drank, they drank beer, they didn’t drink gin and tonic. Just you know, all into football, sports, all that kind of stuff, everything I wasn’t.
In stark contrast to the other men at Wise, Prowel testified that 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 things like art, music, interior design, and decor; and pushed the buttons on the nale encoder with ‘pizzazz.’"