Prowel v. Wise Business Forms, Inc.
107 Fair Empl. Prac. Cas. (BNA) 1, 92 Empl. Prac. Dec. (CCH) 43,681, 579 F.3d 285 (2009)
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Rule of Law:
Harassment based on an employee's failure to conform to gender stereotypes is actionable as discrimination 'because of sex' under Title VII. Such a claim is not defeated by the concurrent presence of harassment based on the employee's sexual orientation, so long as gender stereotyping was a motivating factor for the adverse treatment.
Facts:
- Brian Prowel, an employee at Wise Business Forms, Inc. for 13 years, identified as an effeminate man.
- Prowel's characteristics, such as his high voice, well-groomed appearance, effeminate mannerisms, and interests in art and music, contrasted with the 'stereotypical male' image at the plant.
- Co-workers frequently harassed Prowel for these traits, calling him 'Princess' and 'Rosebud,' and making comments about the way he walked, sat, and filed his nails.
- Prowel, who is homosexual, was also subjected to homophobic harassment after being 'outed' at work, including being called 'fag,' receiving threats, and finding a pink tiara and lubricant at his workstation.
- Coworkers also left religious notes on his workstation, including one stating 'Rosebud will burn in hell,' which Prowel attributed to disapproval of his homosexuality.
- In April 2004, Prowel told several co-workers he intended to sue Wise for harassment based on his failure to 'fit in.'
- On December 13, 2004, Wise terminated Prowel's employment, officially stating it was a layoff due to lack of work.
Procedural Posture:
- After exhausting administrative remedies with the Equal Employment Opportunity Commission, Brian Prowel sued Wise Business Forms, Inc. in the United States District Court for the Western District of Pennsylvania.
- Prowel alleged harassment and wrongful termination based on sex (gender stereotyping) and religion, as well as retaliation, under Title VII and the Pennsylvania Human Relations Act.
- Wise moved for summary judgment on all claims.
- The District Court granted summary judgment in favor of Wise, holding that Prowel's claims were fundamentally non-cognizable claims of sexual orientation discrimination repackaged as gender stereotyping and religious discrimination.
- Prowel (appellant) filed a timely appeal of the summary judgment ruling to the United States Court of Appeals for the Third Circuit, where Wise was the appellee.
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Issue:
Does harassment of a male employee for failing to conform to masculine stereotypes constitute discrimination 'because of sex' under Title VII, permitting the claim to proceed to a jury, even when the harassment also includes animus based on the employee's sexual orientation?
Opinions:
Majority - Hardiman, Circuit Judge.
Yes. Harassment of a male employee for failing to conform to masculine stereotypes can constitute discrimination 'because of sex' under Title VII, and such a claim is not defeated at the summary judgment stage merely because the harassment also involves animus based on the employee's sexual orientation. The court reasoned that under the Supreme Court's precedent in Price Waterhouse v. Hopkins, discrimination based on gender stereotyping is a form of sex discrimination. While Title VII at the time did not prohibit discrimination based on sexual orientation, the presence of anti-gay animus does not negate a valid claim based on gender non-conformity. The court held that Prowel presented sufficient evidence that he was harassed for being effeminate (e.g., being called 'Princess,' comments on his mannerisms, the pink tiara), which a reasonable jury could find was harassment 'because of sex.' Under the statutory 'motivating factor' test, Prowel's claim can proceed as long as his non-conformance to gender stereotypes was one of the reasons for the harassment, even if other factors, like his sexual orientation, were also involved. The court explicitly rejected the notion that a homosexual person is precluded from bringing a gender stereotyping claim that would be available to a heterosexual person. However, the court affirmed the dismissal of the religious discrimination claim, finding it was based entirely on his status as a gay man and was thus a repackaged (and at the time, non-cognizable) sexual orientation claim.
Analysis:
This decision clarifies that a plaintiff's sexual orientation does not bar them from bringing a viable Title VII sex discrimination claim based on gender stereotyping. It distinguishes between harassment based solely on sexual orientation (which was not protected under Title VII at the time) and harassment based on failure to conform to gender norms, establishing that the two can overlap and that the latter is protected. The ruling provided a crucial legal avenue for LGBTQ+ individuals facing workplace harassment by allowing them to frame their claims through the lens of gender non-conformity. It reinforces the 'motivating factor' analysis, preventing employers from defeating a valid sex-stereotyping claim by pointing to concurrent animus based on sexual orientation.
