Since 1994, members of every Congress but one have introduced legislation that would protect gay employees under federal anti-discrimination law. Many believe this year's version of the Employee Non-Discrimination Act (ENDA) has a better chance under President Obama, but key backer Rep. Barney Frank, D-Mass., warned supporters the bill still faces obstacles to passage.

But in the meantime, a case out of Pennsylvania could provide a balm for supporters of equality in the workplace. On Aug. 28, a 3rd Circuit panel opened a door for gay plaintiffs in employment discrimination disputes where they have found mixed results in the past. The appellate ruling in Prowel v. Wise Business Forms establishes that claims under Title VII for gender stereotyping can survive summary judgment even if the plaintiff also experienced discrimination based on his or her perceived sexual orientation.

“Gender stereotyping discrimination is frequently accompanied by anti-gay comments,” says Susan Frietsche, senior staff attorney at Women's Law Project, which filed with Legal Momentum an amici brief supporting Prowel on behalf of 19 other women's rights organizations. “Prowel recognizes clearly what we've thought was the law all along: You don't lose the ability to bring a gender stereotyping sex discrimination claim just because that kind of discrimination is accompanied by anti-gay or anti-lesbian harassment.”

Cruel and Unusual

Now the outcome of Prowel will hinge on the question of whether the plaintiff experienced discrimination based on gender stereotypes, not on sexual orientation. And in the words of the 3rd Circuit, the record is “replete with evidence” that this was the case. After 13 years working for Butler, Penn.-based Wise Business Forms, Brian Prowel had no illusions–he was different from his male co-workers, who, he later would testify, were the image of the “genuine stereotypical male.”

Court documents reveal how his co-workers nicknamed him “Princess” and “Rosebud,” as in, “Did you see Rosebud sitting there with his legs crossed, filing his nails?” And after Prowel was outed at work in 1997, the harassment grew more malicious. Once he overheard a co-worker say, “They should shoot all the fags.” People wrote on bathroom walls that he had AIDS. By April, the stress was so bad that he was stopping to vomit on his way to work, and the same month he told colleagues he was thinking of suing because of the abuse he was taking for “not fitting in.” They told management. In December, Wise fired Prowel for “lack of work.”

Prowel filed a Title VII suit under the gender stereotyping claim as well as a religious discrimination claim that framed the abuse as stemming from his failure to conform with his co-workers' religious beliefs. The district court granted summary judgment to Wise on both claims. They were just sexual orientation claims dressed up as stereotyping claims, the court said, and sexual orientation claims are not allowed under Title VII.

On appeal, the 3rd Circuit affirmed the tossing of the religion claim because his only failure to conform “was by virtue of his status as a gay man.” But it took a closer look at the stereotyping charge, concluding that harassment based on Prowel's sexual orientation “does not vitiate the possibility” that gender stereotyping didn't come into play as well.

“The pattern you see in most of the prior cases is courts accepting the legal principle that gays can bring gender stereotyping claims. And yet relatively few of them have succeeded,” says Katie Eyer, a Salmanson Goldshaw associate who represented Prowel for Equality Advocates. “In prior cases, the courts took it upon themselves to say, 'Well, I think this case is really about sexual orientation, so I'm not going to send it to the jury.'”

The 3rd Circuit in Prowel, however, looked to see whether there was more than one way a jury could interpret the evidence, recognizing that where it's ambiguous as to whether the discrimination is based on sexual orientation or gender stereotypes, the court must send the case to the jury.

Maria Greco Danaher, a partner at Ogletree Deakins, predicts that Judge Thomas Hardiman's “thoughtful” analysis in Prowel will catch on. “We haven't seen this yet in other circuits, but it's certainly rationale we'll be seeing more in the future,” she says.

Work in Progress

Although Prowel involved a man, the case is a victory for women as well. Pioneering women in nontraditional trades such as construction, or in upper-level management, often face sex discrimination similar to what Prowel faced–where he was “too effeminate,” they might be considered too “masculine.”

“We organized [the amici brief] in a short period of time and didn't need to do a lot of explaining to these women's organizations about why this case involving a man pertained directly to them … and I'm very gratified that the women's movement is so strongly behind the passage of ENDA,” says Frietsche, who calls the bill's passage inevitable.

Eyer says the absurdity of her client's predicament drives home the case for an express statute prohibiting sexual orientation discrimination–Wise won summary judgment in the district court despite the fact it hadn't denied Prowel had been harassed and discriminated against.

“Prowel shows the courts are open to looking at these issues from a broader perspective than in the past,” Danaher says. “I don't know if it will have any direct effect on ENDA, but it's certainly an indication that there is more of a willingness to look at these situations from a more practical aspect.”

Since 1994, members of every Congress but one have introduced legislation that would protect gay employees under federal anti-discrimination law. Many believe this year's version of the Employee Non-Discrimination Act (ENDA) has a better chance under President Obama, but key backer Rep. Barney Frank, D-Mass., warned supporters the bill still faces obstacles to passage.

But in the meantime, a case out of Pennsylvania could provide a balm for supporters of equality in the workplace. On Aug. 28, a 3rd Circuit panel opened a door for gay plaintiffs in employment discrimination disputes where they have found mixed results in the past. The appellate ruling in Prowel v. Wise Business Forms establishes that claims under Title VII for gender stereotyping can survive summary judgment even if the plaintiff also experienced discrimination based on his or her perceived sexual orientation.

“Gender stereotyping discrimination is frequently accompanied by anti-gay comments,” says Susan Frietsche, senior staff attorney at Women's Law Project, which filed with Legal Momentum an amici brief supporting Prowel on behalf of 19 other women's rights organizations. “Prowel recognizes clearly what we've thought was the law all along: You don't lose the ability to bring a gender stereotyping sex discrimination claim just because that kind of discrimination is accompanied by anti-gay or anti-lesbian harassment.”

Cruel and Unusual

Now the outcome of Prowel will hinge on the question of whether the plaintiff experienced discrimination based on gender stereotypes, not on sexual orientation. And in the words of the 3rd Circuit, the record is “replete with evidence” that this was the case. After 13 years working for Butler, Penn.-based Wise Business Forms, Brian Prowel had no illusions–he was different from his male co-workers, who, he later would testify, were the image of the “genuine stereotypical male.”

Court documents reveal how his co-workers nicknamed him “Princess” and “Rosebud,” as in, “Did you see Rosebud sitting there with his legs crossed, filing his nails?” And after Prowel was outed at work in 1997, the harassment grew more malicious. Once he overheard a co-worker say, “They should shoot all the fags.” People wrote on bathroom walls that he had AIDS. By April, the stress was so bad that he was stopping to vomit on his way to work, and the same month he told colleagues he was thinking of suing because of the abuse he was taking for “not fitting in.” They told management. In December, Wise fired Prowel for “lack of work.”

Prowel filed a Title VII suit under the gender stereotyping claim as well as a religious discrimination claim that framed the abuse as stemming from his failure to conform with his co-workers' religious beliefs. The district court granted summary judgment to Wise on both claims. They were just sexual orientation claims dressed up as stereotyping claims, the court said, and sexual orientation claims are not allowed under Title VII.

On appeal, the 3rd Circuit affirmed the tossing of the religion claim because his only failure to conform “was by virtue of his status as a gay man.” But it took a closer look at the stereotyping charge, concluding that harassment based on Prowel's sexual orientation “does not vitiate the possibility” that gender stereotyping didn't come into play as well.

“The pattern you see in most of the prior cases is courts accepting the legal principle that gays can bring gender stereotyping claims. And yet relatively few of them have succeeded,” says Katie Eyer, a Salmanson Goldshaw associate who represented Prowel for Equality Advocates. “In prior cases, the courts took it upon themselves to say, 'Well, I think this case is really about sexual orientation, so I'm not going to send it to the jury.'”

The 3rd Circuit in Prowel, however, looked to see whether there was more than one way a jury could interpret the evidence, recognizing that where it's ambiguous as to whether the discrimination is based on sexual orientation or gender stereotypes, the court must send the case to the jury.

Maria Greco Danaher, a partner at Ogletree Deakins, predicts that Judge Thomas Hardiman's “thoughtful” analysis in Prowel will catch on. “We haven't seen this yet in other circuits, but it's certainly rationale we'll be seeing more in the future,” she says.

Work in Progress

Although Prowel involved a man, the case is a victory for women as well. Pioneering women in nontraditional trades such as construction, or in upper-level management, often face sex discrimination similar to what Prowel faced–where he was “too effeminate,” they might be considered too “masculine.”

“We organized [the amici brief] in a short period of time and didn't need to do a lot of explaining to these women's organizations about why this case involving a man pertained directly to them … and I'm very gratified that the women's movement is so strongly behind the passage of ENDA,” says Frietsche, who calls the bill's passage inevitable.

Eyer says the absurdity of her client's predicament drives home the case for an express statute prohibiting sexual orientation discrimination–Wise won summary judgment in the district court despite the fact it hadn't denied Prowel had been harassed and discriminated against.

“Prowel shows the courts are open to looking at these issues from a broader perspective than in the past,” Danaher says. “I don't know if it will have any direct effect on ENDA, but it's certainly an indication that there is more of a willingness to look at these situations from a more practical aspect.”