Update: Federal Appeals Court Allows Discrimination Case Based On Gender Stereotyping

I brought this to your attention a year ago when Brian Prowel appealed a federal court anti-discrimination ruling that determined what he had experienced in his workplace was based on his sexual orientation, not gender stereotyping.

Yesterday, the 3rd U.S. Circuit Court of Appeals reversed that decision and will allow Mr. Prowel to make his case.

“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,” wrote 3rd Circuit Judge Thomas M. Hardiman.

Instead, the employee must simply present evidence of harassment or discrimination “because of sex,” and let a jury decide, he said.

Attorneys for Mr. Prowel yesterday lauded the appeals court decision, calling it important for workplace discrimination law.

“This case is significant to any person in the workplace who doesn't meet expectations because of their gender,” said attorney Timothy P. O'Brien.

This means that Prowel's attorney will have an opportunity to present the case to a jury for determination whether the harassment he endured was based on the fact that he is gay or based on the fact that he is an effeminate man who did not conform to the work place's expectations of masculine behavior.

The court ruling doesn't determine the basis for the discrimination, but it does allow for the possibility that it could be due to gender expectations.  We all know how the blurry the line can be between gender expression and sexual orientation — this decision does not allow employers to hide behind legal gay bashing to defend themselves from these accusations. 

It is important to note that this ruling sets the precedent for the entire 3rd Circuit, including Pennsylvania, New Jersey and Delaware.

Sexual orientation is a protected class in employment in Delaware.  Sexual orientation and gender identity and expression are protected in New Jersey.  Thus, an intricate situation could be considered on both merits.

Something I pointed out last September is the fact that the employer doesn't deny workplace discrimination based on sexual orientation.

Among the allegations made by Mr. Prowel are claims that he was often called “Rosebud” and “Princess,” that fellow employees left personal lubricant on his work station, and that he was harassed for walking effeminately and talking with a high voice.

So this behavior was acceptable to the employer.  It won't end until it is illegal.  While we want this case to succeed  in order to highlight the gender-baiting unpinning so much homophobia, we can't count on a court ruling to protect us.

We must insist that HB 300 pass on a statewide level.  No one should have personal lubricant left on their desk.  As for the mocking?  Do you want to work in the 7th grade hallway — cause that's pretty much what you should expect. 



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