Appellate Court Reinstates Gender Stereotyping Case

August 27, 2009 ( - A former employee of a business forms producer who said his co-workers relentlessly mocked his admittedly effeminate mannerisms with nicknames such as "princess" and "rosebud" got a second chance to pursue his wrongful discharge/discrimination claim with a federal appellate court's ruling.

The 3 rd U.S. Circuit Court of Appeals threw out a ruling by U.S. District Judge Terrence F. McVerry of the U.S. District Court for the Western District of Pennsylvania and reinstated Brian D. Prowel’s gender stereotyping claims against Wise Business Forms. Wise operated a Butler, Pennsylvania, facility with about 145 workers.

U.S. Circuit Judge Thomas M. Hardiman, writing for the court, rejected McVerry’s assertions that Prowel’s case should be dismissed before trial because it was, in reality, a repackaged sexual orientation discrimination case that was not permitted under the Title VII law. Hardiman found that Prowel had put forward enough evidence to survive until the case can go to a jury that Prowel’s December 2004 termination (allegedly undertaken for a lack of work) was actually because of discrimination based on gender stereotypes.

“When the aforementioned facts are considered in the light most favorable to Prowel, they constitute sufficient evidence of gender stereotyping harassment — namely, Prowel was harassed because he did not conform to Wise’s vision of how a man should look, speak, and act — rather than harassment based solely on his sexual orientation,” Hardiman wrote. “…Wise cannot persuasively argue that because Prowel is homosexual, he is precluded from bringing a gender stereotyping claim. There is no basis in the 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.”

According to the case history in the ruling, during Prowel's 13 years with Wise, he claimed he was continually harassed because co-workers felt his behavior was too effeminate. Hardiman said Prowel admitted he:

  • has a high voice and walks in an effeminate manner;
  • did not curse;
  • was very well groomed including filing 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;"
  • discussed things like art, music, interior design, and décor; and
  • pushed the buttons on a piece of machinery at his workstation with "pizzazz."

In response, Hardiman said, Prowel charged that co-workers said "Did you see what Rosebud was wearing?"; "Did you see Rosebud sitting there with his legs crossed, filing his nails?"; and "Look at the way he walks."

Finally, Hardiman said, messages began to appear on the wall of the men's bathroom, claiming Prowel had AIDS and engaged in sexual relations with male co-workers. After Prowel complained, the company repainted the restroom.

Prowel claimed that Wise fired him in retaliation for complaining about treatment from co-workers, but Wise insisted that Prowel had an uncooperative and insubordinate attitude, that he complained when asked to work on different machines, and that he did not work to the best of his ability when operating the other machines.

The appellate opinion is available here .