On Sexual-Orientation and Title VII: Are Changes Afoot?

[WSJ_law_blog]

Late last week, the Third Circuit issued an opinion in an employment-law case with a provocative set of facts. The court reversed a federal trial court’s decision to dismiss a suit brought by an effeminate, gay man who claimed he was discriminated against because he didn’t conform to a typical male stereotype. The Third Circuit reinstated the suit, allowing the man, Brian Prowel, to bring his suit against his former employer, Wise Business Forms. Click here for the ruling; here for the report from the Pittsburgh Post-Gazette.

The claim was filed under Title VII — the federal law that prohibits employment discrimination based on sex, religion, race and national origin. As part of sex discrimination, the law covers gender stereotyping. It does not, however, protect against harassment based on sexual orientation.

“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,” wrote Third Circuit Judge Thomas M. Hardiman. In other words, so long as Prowel was alleging discrimination the base of gender stereotyping and not on the basis of his sexual-orientation, he was free to bring a claim.

We found ourselves a bit puzzled by this distinction, which, on first blush, strikes us as a bit arbitrary: If a gay man is fired because he’s acting in conformity with the stereotype of a gay man, he can sue under Title VII. At the same time, if he’s fired because he’s gay, he can’t sue. That struck us as odd.

So we checked in with Paul Secunda, an employment-law expert and law professor at Marquette, for a bit more clarification.

Secunda confirmed the fact that, yes, this was the law, largely dating to a U.S. Supreme Court case from 1989 called Price Waterhouse v. Hopkins, in which a woman was not made a partner at Price Waterhouse because her demeanor did not conform to stereotypical notions of femininity. “That’s called sex-stereotype discrimination,” says Secunda, “when an employer says to someone ‘you’re not acting ‘female enough’ or ‘male enough,’ therefore we’re firing you.”

The Supreme Court, in Price Waterhouse, outlawed such behavior under Title VII by ruling that such discrimination was, in fact, discrimination on the basis of sex. Explained the court: “when a plaintiff in a Title VII case proves that her gender played a part in an employment decision, the defendant may avoid a finding of liability by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff’s gender into account.”

That said, explains Secunda, while certain states and cities have laws prohibiting employment discrimination on the basis of sexual orientation, the Supreme Court has never ruled that sexual orientation is covered by Title VII.

The law could change soon, however. Secunda says that two different versions of a proposed change to Title VII, called ENDA (The Employment Non-Discrimination Act), were recently introduced in both houses of Congress. ENDA, which would prohibit employment-discrimination on the basis of sexual-orientation, is likely to be taken up in the fall.

If nothing else, says Secunda, ENDA’s passage will mean that plaintiffs no longer have to “artfully plead” that discrimination is based on sex-stereotyping and not on sexual-orientation.