Employers should not be quick to dismiss harassment or discrimination claims by employees simply because Title VII of the Civil Rights Act of 1964 does not apply to sexual orientation. Title VII does cover sex discrimination, and discrimination based on sexual stereotyping is just such discrimination.

That fact was driven home in a ruling on August 28, 2009, by the U.S. Court of Appeals for the Third Circuit in Prowel v. Wise Business Forms, Inc., No. 07-3997. The court found that the plaintiff had presented a triable issue of fact as to whether he was harassed for his failure to conform to gender stereotypes. Brian D. Prowel alleged that Wise Business Forms, Inc., harassed and retaliated against him because he had effeminate traits, which did not conform to the male stereotype held by coworkers. The Third Circuit reversed the district court, which had granted summary judgment to the employer, finding that the lawsuit was simply a claim for sexual orientation discrimination repackaged as a gender stereotyping claim.

Prowel, who said he is gay, complained to management about the treatment, but apparently to no avail. On December 13, 2004, Wise informed Prowel that he was being laid off for lack of work after 13 years with the company.

The Third Circuit agreed that Prowel could not bring a claim of sexual orientation discrimination under Title VII, but it disagreed that he could not advance a claim of sex discrimination based on sexual stereotyping simply because he was gay. "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."

The lesson in the Prowel decision is that if an employee alleges that he or she is being harassed or discriminated against because he or she does not fit a particular sexual stereotype, an employer needs to seriously address that claim, regardless of the employee's orientation.

Contact Information

If you have questions or concerns regarding the Prowel decision, please contact any member of Ballard Spahr's Labor, Employment and Immigration Group.


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