Gay Pennsylvania Man’s Gender Bias Lawsuit Reinstated

August 31, 2009

A federal appeals court has reinstated a gay western Pennsylvania man’s lawsuit contending that co-workers who nicknamed him “Princess” and otherwise allegedly harassed him about his effeminate behavior discriminated against his gender, not his sexual orientation.

The 3rd U.S. Circuit Court of Appeals on Friday reversed the decision of a federal judge in the suit filed by Brian Prowel, of Penn Hills, against Wise Business Forms Inc. of Butler.

“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,” Judge Thomas M. Hardiman wrote. The employee must simply present evidence of harassment or discrimination “because of sex,” and let a jury decide, he said.

Prowel’s attorneys hailed the decision as important for workplace discrimination law. Attorney Timothy O’Brien said it was significant for any worker “who doesn’t meet expectations because of their gender.”

Prowel said he was fired in 2004 from the job he had held since 1991 after complaining that co-workers nicknamed him “Rosebud” and “Princess” and ridiculed the way he walked, spoke and even sat. He said workers left a feathered tiara at his work station and wrote graffiti about him and AIDS on bathroom walls, among other things.

Wise Business Forms said Prowel was laid off with other workers due to a business slowdown and alleged that he had complained about his pay and developed attitude problems. The company says other workers complained about Prowel trying to “recruit” them to testify for the bias lawsuit he eventually filed in 2006.

The suit was filed under Title VII, the federal law that bars discrimination based on sex, religion, race and national origin. The law covers gender stereotyping but does not protect against harassment based on sexual orientation, which is handled by individual jurisdictions.

U.S. District Judge Terrence F. McVerry had dismissed the suit in 2007, calling the workplace behavior “reprehensible” but saying Prowel had been discriminated against because of his sexual orientation rather than his gender.

Hardiman, writing for the three-judge panel, said that decision was up to a jury. He cited a 1989 case in which the Supreme Court held that sex discrimination laws protect women who fail to conform to a traditionally feminine demeanor and appearance.

“Unlike (in that case) there is no dispute that Prowel is homosexual. The difficult question, therefore, is whether the harassment he suffered at Wise was because of his homosexuality, his effeminacy, or both,” the judge wrote, adding that the record was “ambiguous” on that point.

“(I)t is possible that the harassment Prowel alleges was because of his sexual orientation, not his effeminacy,” he said. “Nevertheless, this does not vitiate the possibility that Prowel was also harassed for his failure to conform to gender stereotypes.”

The appeals court, however, upheld the lower court’s dismissal of Prowel’s contention that he was the victim of religious discrimination. Prowell, who identifies himself as a Christian, quoted some co-workers as saying homosexuality was a sin or that he was going to hell. The court said such remarks were based on sexual orientation, not behavior.


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