LGBT advocates are lauding an Aug. 28 ruling by the Third Circuit Court of Appeals that reversed a lower-court decision and allows a jury to hear a gay man’s workplace-harassment claim.
Advocates say the ruling will help prevent courts from citing a worker’s sexual orientation or gender identity as a reason for dismissing a gender-stereotyping claim filed by the worker.
Brian D. Prowel says he was subjected to pervasive workplace harassment due to gender stereotyping when he worked at Wise Business Forms Inc. in Butler.
Prowel, 39, of Penn Hills in Allegheny County, helped produce business forms at the factory from 1991-94, when he was laid off.
Prowel claims his dismissal was due to retaliation after he complained of gender stereotyping. He filed a federal lawsuit against the factory in 2006, claiming he was discriminated against due to his sex — which is barred under Title 7 of the Civil Rights Act of 1964.
Alleged acts of workplace harassment included being nicknamed “Rosebud” and “Princess” and being ridiculed for the way he walked, spoke and sat, with his legs crossed and foot swinging.
In addition, coworkers allegedly placed a feathered tiara at Prowel’s workstation and wrote graffiti about Prowel and AIDS on bathroom walls, according to court records.
But in September 2007, U.S. District Judge Terrence F. McVerry dismissed Prowel’s lawsuit, noting that Prowel is gay, thus his sexual orientation must have been the motivating factor for the harassment.
Prowel’s attorneys promptly appealed McVerry’s ruling, and last week, a three-member panel of the Third Circuit Court of Appeals remanded the case back to McVerry for a jury trial.
“There is no basis in 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 panel stated. “ ... Prowel’s gender-stereotyping claim is not limited to, or coextensive with, a claim of sexual-orientation harassment. Accordingly, the jury will have to determine the basis of the harassment.”
The appellate judges are Michael A. Chagares, D. Michael Fisher and Thomas M. Hardiman.
Katie R. Eyer, a lead appellate attorney for Prowel, praised the ruling.
“I’m thrilled that the court recognized that where you have ambiguous evidence as to what motivates the plaintiff’s harassers, these cases really have to go to the jury,” Eyer said. “That’s the key significance about this case. Other courts have recognized that LGBT plaintiffs should be able to bring these claims. But typically, the cases were eventually dismissed on summary judgment because there was some evidence of sexual-orientation discrimination.”
Amara S. Chaudhry, another attorney for Prowel, said she was “ecstatic” with the ruling.
“I’m delighted that the higher court understands it’s not only illegal to discriminate against an effeminate straight man at work, it’s also illegal to discriminate against an effeminate gay man at work,” Chaudhry said.
She disagreed with McVerry’s application of federal law.
“Judge McVerry apparently felt that if sexual orientation is a factor in a Title 7 case, then the case needs to be dismissed. That’s an inaccurate application of federal law. LGBT Pennsylvanians have no fewer protections than anyone else when it comes to sex discrimination in the workplace.”
Prowel couldn’t be reached for comment, but he responded to the ruling in a prepared statement.
“I’ve always believed in right and wrong, and sometimes you have to fight for right,” Prowel said in the statement. “The decision today recognized that no employee should have to go through what I went through.”
Prowel is now employed by the U.S. Postal Service, Eyer said.
Susan J. Frietsche, senior staff attorney at the Women’s Law Project, Pittsburgh office, filed a friend-of-the-court brief representing 21 women’s groups in support of Prowel.
“I’m completely happy with this ruling,” Frietsche said. “It’s an important victory for women’s-rights advocates. It’s going to have an especially helpful impact on women in nontraditional employment, regardless of their sexual orientation. Because those women in the trades, and women in upper-level management — the pioneering women in workplaces that don’t often see a lot of women — frequently suffer not only gender-stereotyping discrimination, but also harassment based on their real or perceived sexual orientation.”
Kurt A. Miller, an attorney for Wise Business Forms Inc., declined to comment for this story.
Tim Cwiek can be reached at (215) 625-8501 ext. 208.