For years, Brian Prowel says, his coworkers tormented him for being effeminate, for not being like all the other guys at his Butler plant.
Not true, says his former employer: Prowel was frequently abused by his coworkers ... but only because he's gay. And that, unsavory as it may sound, is not against the law.
Title VII of the Civil Rights Act of 1964 explicitly prohibits employment discrimination based on sex. It does not, however, extend to sexual orientation -- rendering that sort of discrimination illegal is up to states and municipalities. Some do, and some don't.
The case, an appeal of which is now being decided in federal court, has attracted interest from civil-rights activists, who say it has a potential to redefine how the courts apply anti-discrimination law.
Twenty-one women's groups from around the country have signed on to a friend-of-the-court brief. Setting precedent for gender-presentation discrimination, they say, will pave the way for women in traditionally male fields to be protected against gendered harassment. And having harassment-free access to male-oriented high-paying jobs could go a long way toward addressing the pay gap.
No one disputes that Prowel was harassed mightily during his nearly 15 years as a factory worker at Wise Business Forms, Inc., or that he presents himself in ways that don't conform to stereotypically male norms. His ways of walking, sitting, speaking and grooming have never been "manly." The initial complaint quoted coworkers saying "Did you see Rosebud sitting there with his legs crossed filing his nails?"; "Look at the way he walks. ..." They pulled pranks like leaving a feathered tiara and a tube of personal lubricant at his workstation.
Prowel sued Wise in 2006, alleging that the company fired him after he complained of years' worth of slurs directed at his gender expression, his not being male enough for his peers. But he alleged that his treatment was really a form of sex discrimination: Had Prowel been female, his attorneys have argued, his coworkers would not have taunted him for doing things like filing his nails.
"It constitutes sex discrimination to target an employee for harassment based on gender stereotypes," Prowel's attorney, Katie Eyre, argued in court.
Prowel is seeking redress under Title VII of the federal Civil Rights Act, which bars discrimination on the basis of sex -- but not on the basis of sexual orientation. In order to win the case, then, Prowel has to show he was harassed not because he has sex with men, but because he sometimes acted too much like a woman.
U.S. District Judge Terry McVerry ruled against Prowel in 2007 determining that the years of graffiti in the bathrooms and vicious comments were anti-gay harassment. Prowel appealed in the Third Circuit federal appeals court, with preliminary arguments held Oct. 1.
Prowel came out as a gay man only after several years of working at Wise. The case, then, could come down to a question of timing. If his coworkers knew he was gay when they started harassing Prowel, it would lend credence to the contention that they were motivated by homophobia, a legally permissible form of bigotry.
"Your adversary admitted there was terrible harassment of your client," said Judge Thomas Hardiman, one of three federal judges hearing arguments in the Third Circuit Court of Appeals. "It was visited upon him not when he began acting effeminate, but after he was out."
"There is no chronology established as to when the offensive gendered harassment began," said Eyre. "There is ample evidence linking his gender nonconformity to his harassment. The plaintiff is penalized for [his] failure to conform to gender stereotypes."
"Congress did not mean to include sexual orientation as a protected class when it ratified Title VII in 1964. It's an issue of Congressional intent," Kurt Miller, attorney for Wise, said in court. "Despite the socially controversial subject matter, this is a statutory interpretation case."
Women's groups say the case's outcome could have ramifications for women in stereotypically male occupations. If Prowel can be harassed for being "not manly enough," they worry, a female construction worker could be mistreated for not being womanly enough. As a friend-of-the-court brief filed in the suit makes clear, "[B]ecause women face intense hostility for stepping outside their historically assigned gender roles, the continuing vitality of the sex stereotype discrimination model is central to their equality," the amicus brief reads in part.
Susan Frietsche of Pittsburgh's Women's Law Project co-wrote the brief, which was signed by 21 women's-rights groups. People outside the case are "stunned to hear that he could not sue based on sexual-orientation discrimination," she says. "They cannot believe it's not illegal."
