Court Reinstates Man’s Gender Stereotyping Suit

(CN) - The 3rd Circuit reinstated the gender stereotyping claim of a gay worker who claimed he was laid off because he was too effeminate and didn't believe that homosexuality was a sin. Co-workers allegedly called him "Princess," "Rosebud" and "faggot," gave him a pink tiara with some lubricant jelly, and wrote that he had AIDS on the wall of the men's bathroom.

Brian D. Prowel said his male co-workers at Wise Business Forms fit the bill of a "genuine stereotypical male," which he described as "blue jeans, T-shirt, blue collar worker, very rough around the edges."

Most of the guys hunted and fished, he said, and drank beer, not gin and tonic. "Just you know, all into football, sports, all that kind of stuff, everything I wasn't," he said.

By contrast, Prowel testified that he has a high voice, doesn't curse, wears fashionable clothes, files his nails instead of ripping them off with a utility knife, crosses his legs when he sits, and walks and carries himself in an effeminate manner.

He was allegedly "outed" at the Butler, Pa.-based plant when someone left a newspaper clipping of a man-seeking-man ad on his desk, with a note that said: "Why don't you give him a call, big boy?"

He said he also overheard a co-worker saying, "I hate him. They should shoot all fags," while others, including a shift supervisor, reproached him about his "sinful" lifestyle.

Prowel said he reported these and other incidents to managers, but nothing was done.

When he was laid off in 2004, after 13 years with the company, he sued for gender stereotyping and religious discrimination under Title VII of the federal Civil Rights Act and a state civil rights law.

He claimed he was fired for not "fitting in," and for not adopting the company's condemnation of homosexuality. He allegedly found anonymous prayer notes and religious pamphlets at his work station, telling him he's a sinner and "will burn in hell."

The Philadelphia-based appeals court overturned a federal judge's dismissal of the case. The three-judge panel did not agree that Prowel had simply repackaged a complaint for sexual-orientation discrimination as a gender-stereotyping claim in order to avoid summary judgment. (Title VII does not protect workers from discrimination based on sexual orientation.)

"As long as the employee - regardless of his or her sexual orientation - marshals sufficient evidence such that a reasonable jury could conclude that harassment or discrimination occurred 'because of sex,'" Judge Hardiman wrote, "the case is not appropriate for summary judgment."

And Prowel had produced such adequate evidence, the court concluded.

However, the panel upheld the dismissal of his religious discrimination claim, saying his status as a gay man doesn't qualify as a protected religious belief.

"Prowel admits that no one at Wise harassed him based on his religious beliefs," Hardiman wrote. "Rather, Prowel contends that he was harassed for failing to conform to Wise's religious beliefs" (emphasis in original).

Thus, the alleged discrimination was based on sexual orientation, not religion, the court said.

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