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”.

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.

From Columbia Law School Professor Patricia Williams, via The Daily Beast:

If the nation’s first female Solicitor General breaks a 139-year-old tradition and doesn’t wear a morning coat, can she still do her job with style?

Of the details one misses with no television coverage of the Supreme Court, surely the quaintest is that the Solicitor General of the United States must wear tails—more formally known as a morning coat—when arguing the government’s cases. Barack Obama’s new nominee for that position is Harvard Law School Dean Elena Kagan. If confirmed, she will be the first woman ever to hold that position, and as such her very presence triggers an epiphenomenal fashion crisis that shakes American socio-legal tradition to its very roots.

Perhaps I overstate. The tradition of the morning coat began in 1870, when the Office of Solicitor General was founded. Of course, back then it was more or less the equivalent of what a Brooks Brothers three-piece suit might be today—elegant but not archaic. Today we associate the morning coat with arch-formality, like weddings, state funerals or an afternoon at Ascot or Henley. But in its heyday, the morning coat was a less formal version of the frock coat, literally suitable for morning rather than evening affairs. Also known as a “cutaway,” the hemline commences at the waistline in front, then curves downward into two long tails in the back—thus making it suitable for horseback riding.

The persistence of this sartorial custom beyond its natural lifespan—and in the American justice system of all places—is not merely a quirk of history but testament to the deep and tenaciously clubbish culture that still afflicts the highest levels and most intransigently closed circles of power. Tradition, yes, but it’s also the mark of a male-dominated legal profession still struggling to deal with the radical transformations of the last thirty years, during which women’s numbers skyrocketed from the low single digits to approximately fifty percent of law school graduates.

From the perspective of world hunger, it’s a small matter I suppose, the peculiar sartorial habits of solicitors general. Yet structurally, it’s problematic. There’s The Uniform for those whose endowments conform to high Victorian tradition; and then there is “something else” for those girlish “others” who’ll just have to figure out a way to assimilate, accommodate, or “pass.” No, it’s not as insidious an affliction of gender apartheid as separate tee times for women in the PGA or the lack of women’s bathrooms in the executive suite. But still the question presents: what’s a gentle-mistress to do when required to accessorize according to a long line of Mr. Darcy look-alikes? The cane or the whip? Balmorals or button-up boots? Bowler or bonnet? Silk stockings cum satin snood? Crinoline or calico? Seriously now—taffeta or twill?

There is not a good deal of reassuring precedent when dealing with such dilemma. Barbara Underwood, a well-regarded public advocate, served as Acting Solicitor General for six months in 2001; and there are numbers of female assistant or deputy solicitors who have also argued before the court. Though it is not easy to find records of what any of them might have worn, there are a few legendary, perhaps apocryphal, struggles commonly shared among lawyers. My favorite is said to have occurred during the Clinton administration, when a female deputy from the Solicitor General’s office wore what is variously described as a “dove-brown” or “doe-beige” business suit while arguing a case to the Supreme Court.

According to a friend who, to this day, fears being identified, Chief Justice Rehnquist “went berserk.” He chastised her for inappropriate attire, and followed it up with a scathing letter to the Solicitor General himself, requesting that this not occur again. Brown textiles! The scandal! (Yes, this is the same Justice Rehnquist whose love of costume led him to affix to his judicial robes a set of gold stripes he once saw adorning the fictional persona of Lord Chancellor in a production of Gilbert and Sullivan’s Iolanthe.) In response, the Solicitor General’s office thenceforth recommended that women wear what is popularly known as a “feminized” version of morning attire, and/or a plain black suit. (In case you’re wondering, a feminized morning suit is more or less like the men’s version, only with darts at the bust line: that is, a dark jacket, often with silk trim on the lapels and those perky Scrooge McDuck tails flapping out behind. And instead of the classic striped charcoal trousers, a neo-classical striped charcoal skirt. Open question whether the same requires a Windsor-knotted tie with starched winged collar.)

In her lovely meditation, A Room of One’s Own, Virginia Woolf writes that Thackeray’s “affectation of the style, with its imitation of the eighteenth century, hampers one…” She thinks about looking at his manuscript to see “whether the alterations were for the benefit of the style or of the sense. But then one would have to decide what is style and what is meaning….” Here her reflection is interrupted: “…like a guardian angel barring the way with a flutter of black gown instead of white wings, a deprecating, silvery, kindly gentleman, who regretted in a low voice as he waved me back, that ladies are only admitted to the library if accompanied by a Fellow of the College or furnished with a letter of introduction…”

What is style? What is meaning? Are the justices of the Supreme Court of the United States really unable to concentrate on the law of the land when female advocates wear timid-deer, bird-brown frocks rather than manly-tailored frock coats? Are they really better able to engage with serious issues when twenty-first century men must gussy themselves up like nineteenth century dandies in order to be heard? What does equality mean if the most iconic advocates in our justice system comport themselves according to nineteenth century models of male virtue? And if it’s tradition we love so much, should not the female alternative to the morning coat be that of a ruche-trimmed mini top hat with ostrich feathers and tulle silk veil; a puff-sleeved blouson over laced corset; tantalizingly ankle-grazing skirt made yet more tantalizing by a large bustle stuffed with sacks of horsehair suspended by a series of latches, collapsible armatures and springs for ease of sitting and standing?

Somehow, I feel confident that Elena Kagan’s alterations will be “for the benefit…of the sense.”

Patricia J. Williams has been published widely in the areas of race, gender, and law, and on other issues of legal theory and legal writing. Her books include The Alchemy of Race and Rights; The Rooster’s Egg; and Seeing a ColorBlind Future: The Paradox of Race. She is the James L. Dohr Professor of Law at Columbia Law School and also a columnist for The Nation.

Editor’s Note:

How about junking the morning suit and going back to wigs?  General Kagen would look lovely adorned like this:

Or even better, with a little fashionable flair: