THE DIVIDING LINE BETWEEN HARASSMENT BASED ON GENDER AND THAT BASED ON SEXUAL ORIENTATION: THE TWO MAY BE INTERTWINED, BUT ONLY ONE IS PROTECTED
In the workplace, Title VII, a series of federal laws, prohibits so called gender stereotyping, the harassment of employees who don’t act like those of their gender. However, Title VII is not recognized to prohibit harassment based on an employee’s sexual orientation. This leaves open the question of what to do when a homosexual male employee is harassed for not acting like a stereotypical man. In legal terms, the question is whether his harassment is covered as gender-based harassment, or whether it falls outside of the scope of Title VII as a claim for sexual orientation-based harassment. That was the issue this region’s federal appellate court decided on August 28, 2009 in Prowel v. Wise Business Forms Inc.
In actuality, the court was confronted with conflicting evidence. On the one hand, there was evidence Mr. Prowel was harassed because he had a high voice, moved in an effeminate manner, crossed his legs and filed his nails. That evidence tended to show that the harassment was gender-based, i.e., that he was harassed as a result of so called gender stereotyping, for not acting in accordance with behavior stereotypically associated with men. On the other hand, there was evidence that Mr. Prowel was harassed due to his sexual orientation. He was repeatedly called derogatory names associated with homosexuals and taunted for his homosexuality.
The Third Circuit Court of Appeals decided that Mr. Prowel had put forward evidence of gender stereotyping. Therefore, the court ruled, his case should have been put to a jury to decide whether the harassment was due to his gender or to his sexual orientation. In so ruling, the Third Circuit reversed the trial court which had granted judgment to his employer Wise Business Forms. Anyone, regardless of sexual orientation, the Third Circuit explained, may assert a gender stereotyping claim, as long as they have evidence that the harassment occurred because of their gender.
Prowel provides a lesson in pleading and practice. Those wanting to bring sexual harassment claims are cautioned to draft their claims to clearly show that the harassment was in fact gender based. Throughout the course of their case, it will also be critical for them to gather evidence proving that the harassment was based on their gender.
Employers should consider Prowel a warning. Although Title VII does not cover harassment based on sexual orientation, Prowel shows that the line between that kind of harassment and gender stereotyping can be very fine. Before being faced with a sexual harassment claim, employers are well advised to draft a clear anti-discrimination policy covering not only gender-based harassment in general but also harassment based on gender stereotyping and an individual’s sexual orientation. The policy should be distributed as part of an employee manual, employees who violate the policy should be appropriately disciplined and diversity programs should be put in place. The best way to defeat a sexual harassment claim is to take steps to prevent one from being brought.