There's something brewing in the 3rd US Circuit Court of Appeals this Wednesday and it is important for every LGBTQ person to pay attention.
Brian Prowel is appealing a federal district decision stating that the discrimination he experienced in his workplace was due to sexual orientation which is not a federally protected class.
Prowel and his attorney argue that the discrimination was based on his sex. In essence, Prowell did not act like a man and was subjected to gender stereotyping which should be covered by Title VII, the federal law that prohibits such discrimination. From the PG:
Brian Prowel is effeminate. He crosses his legs and swings his foot. He files his nails if one has a snag. He has a high-pitched voice.
He is also gay. He has a rainbow decal on his car and he talked about the men he was dating at work.
On Feb. 23, 2006, Mr. Prowel filed a federal lawsuit against his former employer, Wise Business Forms Inc. in Butler County, alleging sex discrimination.
He argued that he was discriminated against because he did not live up to his co-workers' stereotypes of how a man should look and act.
It seems that whether you are gay or straight, if you don't conform to gender expectations you can be harassed in the workplace. If the decision stands, you have no recourse. There are many heterosexual men and women who do not behave or dress consistently with gender expectations. In essence, a woman working in a non-traditional environment could be fired for acting too much like a man.
Ledcat thinks this “could be a disaster” because an employer could use your dress, your words, your actions against you if they don't meet her or his expectations. All they would have to do is be sure to call you a dyke or a fag to cover their trail. Bam. Women are locked out of workplaces where we are already struggling to gain a foothold.
Sue Frietsche of the Women's Law Project wrote a friend of the court brief:
“Simply stated, employers cannot immunize themselves against sex discrimination claims by hiding behind their anti-gay or anti-lesbian prejudice,”
What's important to note is that no one is denying the Mr. Prowel was the victim of discrimination based on his sexual orientation. Rather, they argue that the discrimination was intertwined with that based on his sex. They may have perceived him as being gay, but that perception is based on his acting too effeminate.
This is super important. If you live outside of Pittsburgh, this could impact you in your workplace. Legislation is pending before Allegheny Countil that would extend workplace protections based on sexual orientation, gender identity and gender presentation. Dan Frankel and his allies have been working on the state level for the same thing, in vain this year.
This court decision could set us all back, especially women. It is important that we push for the legislation on the local and state levels. It is important that the federal government pass ENDA legislation that includes gender identity and gender presentation.
It is also important that we support organizations like the Women's Law Project who are on the front lines watching out for us.