Important Victory in Third Circuit Recognizing Gender Stereotyping

Posted on September 1st, 2009 by Katherine Franke

Anyone interested in gender stereotyping should rejoice the decision released last Friday in Prowel v. Wise Business Forms.  Brian Prowel describes himself as “effeminate” and that due to his effeminacy he was harassed and retaliated against at his job in violation of the sex discrimination protections contained in Title VII of the Civil Rights Act of 1964.   The court described the situation thus:

Prowel “believes that his mannerisms caused him not to “fit in” with the other men at Wise.  Prowel described the “genuine stereotypical male” at the plant as follows:

[B]lue jeans, t-shirt, blue collar worker, very rough around the edges. Most of the guys there hunted. Most of the guys there fished. If they drank, they drank beer, they didn’t drink gin and tonic. Just you know, all into football, sports, all that kind of stuff, everything I wasn’t.

In stark contrast to the other men at Wise, Prowel testified that he had a high voice and did not curse; was very well-groomed; wore what others would consider dressy clothes; was neat; filed his nails instead of ripping them off with a utility knife; crossed his legs and had a tendency to shake his foot “the way a woman would sit”; walked and carried himself in an effeminate manner; drove a clean car; had a rainbow decal on the trunk of his car; talked about things like art, music, interior design, and decor; and pushed the buttons on the nale encoder with “pizzazz.”

You gotta love Brian Prowel – he pushed the buttons on the nale encoder with pizzazz, while crossing his legs and filing his nails.

But these cases have been, by and large, very difficult to win.  Except in the Third Circuit.  Darlene Jesperson lost her case in the 9th Circuit when she claimed gender stereotyping discrimination after Harrah’s Casino (where she had worked for over 20 years) fired her because she refused to wear foundation and/or powder, lipstick, mascara, and blush, as required by a new grooming policy.

Yes, as you might guess, Brian Prowel is gay, but he couldn’t claim sexual orientation discrimination under Title VII, so he stuck with the gender stereotyping theory.  What is remarkable is that the Third Circuit refused to collapse the “effeminate man” case into the “gay man” case.  That is to say, it recognized that gender stereotyping is not necessarily the same thing as homophobia, although there may be overlap between the two in some cases.  At least in the Third Circuit the courts get it that not all “effeminate” men are gay, and not all gay men are “effeminate”.hopkins

This case is for all intents and purposes the flip side of the Price Waterhouse case, decided by the Supreme Court in 1989, wherein Ann Hopkins was denied partnership at Price Waterhouse, then a top accounting firm, because she used profanity;  did not walk, talk, or dress in a feminine manner, and was advised by a Price Waterhouse partner to go to charm school to learn to  “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.

Too often courts see these cases as thinly veiled sexual orientation discrimination cases, and throw them out of federal court.  While we need to amend Title VII to include protections against sexual orientation-based discrimination (ENDA, the Employment Non Discrimination Act, has been pending in Congress since 1994 and would do just this),  protecting lesbians and gay men from discrimination is not necessarily what plaintiffs such as Brian Prowel need.  Gender-based discrimination – harassment of and discrimination against people who do not conform to traditional gender stereotypes of masculine men and feminine women – is its own species of discrimination that bears a close relationship to sex-based discrimination.  In essence both forms of discrimination derive from a notion that men are certain types of beings who should do certain types of work (men’s work) and should be manly doing so, while women are a very different kind of beings who should do their own types of work (women’s work) and should be womanly doing so.

The Prowel decision is an important next step in disestablishing through law this age-old set of stereotypes.


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