It has long been the law of the land that discrimination on the basis of an employee's sex is unlawful. And in 1989, in Price Waterhouse v. Hopkins, the U.S. Supreme Court ruled that making employment decisions based upon gender-based stereotypes is a form of unlawful sex discrimination.
Ann Hopkins claimed that she had been denied a partnership with Price Waterhouse because she did not conform to the accounting firm's view of how women should behave: she was aggressive; she used profanity; she was not charming; and she did not walk, talk, or dress in a feminine manner. A plurality of the Court noted that "we are beyond the day when an employer [can] evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and woman resulting from sex stereotypes."
However, neither federal law nor most state and local fair employment practice laws prohibit discrimination based upon an employee's sexual orientation. (The City of Philadelphia, which has its own Fair Practices Ordinance, is one exception.) With respect to gay or lesbian employees, this presents an interesting issue. For those employees, isn't discrimination based upon stereotypes regarding their gender (which is unlawful) really discrimination based upon their sexual orientation (which is not unlawful)? The U.S. Court of Appeals for the Third Circuit (which covers Pennsylvania, New Jersey, and Delaware) has just answered this question with a resounding "No".
Prowel v. Wise Business Forms, decided on August 28, 2009 involved a homosexual male who alleged that he was harassed and laid off based upon sexual stereotyping by his employer. More specifically, in contrast to other men at the company, Brian Prowel testified that the adverse actions taken against him were because 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; and talked about things like art, music, interior design and décor.
In support of its motion for summary judgment seeking to have the case dismissed without a trial, the company argued that Prowel's lawsuit was merely a claim for sexual orientation discrimination repackaged as a gender stereotyping claim to avoid dismissal. The trial court agreed and granted the company's motion.
On appeal, the trial court's decision was reversed. The Third Circuit acknowledged that discrimination on the basis of sexual orientation is not unlawful, and that it would be inappropriate to convert every case of sexual orientation discrimination (of which there was substantial evidence in the case before it) into a triable case of gender stereotyping discrimination. Nevertheless, the court held that there is no basis in the statute 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."
Prowel recognizes that an employer's actions can be motivated by both sexual orientation and gender stereotyping, and that the differences between the two may not always be easy to discern. However, with this decision, which will apply equally to lesbians and probably transgendered individuals as well, the court provides a clear roadmap for plaintiffs: focus on evidence of gender stereotyping, and stay away from evidence relating to sexual orientation.
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