Thursday, September 3, 2009

3d Circuit Applies Title VII to Gay Man

Before I am accused of using a misleading title, let me state unequivocally that the 3d Circuit did not hold Title VII covers homosexuals. But in Prowel v. Wise Business Forms, Inc., Title VII potentially provided protection to a man who:
"has a high voice and walks in an effeminate manner . . . . did not curse and was very well groomed; 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.' [He] also discussed things like art, music, interior design, and decor, and pushed the buttons on his nale encoder with 'pizzazz.'"
And yes, he is a gay man.

His co-workers harassed him mercilessly, calling him "Princess" and "Rosebud," not to mention anti-gay slurs. They also placed "man-seeking-man"newspaper ads with mocking commentary on his workstation.

The Court concedes that it is possible Prowel was harassed because of his sexual orientation. The Court also notes, however, that it is possible Prowel was "harassed for his failure to conform to gender stereotypes." The Court concluded that "[b]ecause both scenarios are plausible, the case presents a question of fact for the jury and is not appropriate for summary judgment."

This provides homosexual employees with a potential Title VII claim for gender stereotyping. It may become somewhat irrelevant if Congress passes ENDA. I'll also note that some state statutes, and even some local ordinances, already prohibit discrimination based on sexual orientation.