Sid Steinberg, left, and Dan Thornton, right, of Post & Schell.

Sex discrimination is broader than many realize, extending even to the interplay between an employee's appearance and gender stereotypes. This concept was recently addressed in Bonson v. Hanover Food, No. 1:19-cv-54, 2020 U.S. Dist. LEXIS 56897 (M.D. Pa. Apr. 1, 2020), where the court denied summary judgment after finding that the employee had stated a viable claim for sex discrimination based on gender stereotyping and that numerous factual disputes required a jury's consideration.

Constant Harassment Culminates in Termination

Tyler Bonson worked at Hanover Foods Corp. (Hanover) for nearly a decade, most recently as a freezer operator. During his employment, Bonson allegedly endured near-daily harassment from his supervisors based on their perception that—because he took greater care with his appearance than his coworkers—he must have been homosexual. In particular, Bonson alleged that one of his direct supervisors, Robert Smoyer, as well as Hanover's human resources representative, Page Gaddis, repeatedly referred to, and about, him using various well-known homophobic slurs, as well as more targeted ones like calling him "the freezer fairy."

Since Gaddis was the human resources representative, Bonson felt that he could hardly file an HR complaint, but he purportedly told Gaddis many times to stop insulting him and leave him alone. Both supervisors flatly denied any name calling.

On Sept. 1, 2017, Smoyer allegedly informed Bonson that work on the upcoming Sept. 4 Labor Day holiday was discretionary and that he was not required to come in. Bonson claimed that he responded by telling Smoyer that he would not work Labor Day, but Smoyer and Gaddis denied this. In any case, Bonson did not come to work on Sept. 4. The next day, Gaddis allegedly called Bonson a "faggot" once again and terminated his employment just two hours later. Gaddis explained that his decision was based on Bonson's violation of Hanover's zero-tolerance no-call/no-show policy, which provides for termination after a single failure to show up for work without informing a supervisor.

Bonson then filed suit against Hanover claiming that he was discriminated against on the basis of his gender, subjected to a hostile work environment, and terminated from employment in violation of Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act. He also brought suit against Gaddis personally under the aiding and abetting provision of the PHRA.

Gender Stereotyping Claim Survives

In the context of Hanover's summary-judgment motion, the court looked to whether the record evidence showed that there is "no genuine dispute as to any material fact," Fed. R. Civ. P. 56(a), noting that a dispute is only "genuine" if there is sufficient evidence for a reasonable jury to find in Bonson's favor and that a dispute is only "material" if it could affect the case's outcome.

In order to state a prima facie claim of sex discrimination based on gender stereotyping, Bonson had to show that he is a member of a protected class, is qualified for the position, and suffered an adverse employment action under circumstances giving rise to an inference of discrimination. As the court noted, the U.S. Court of Appeals for the Third Circuit has held that same-sex harassment can constitute "discrimination because of sex" where the employee presents "evidence that the harasser's conduct was motivated by a belief that the victim did not conform to the stereotypes of his or her gender" based on the victim's behaviors, mannerisms, or appearance. See Bibby v. Philadelphia Coca Cola Bottling, 260 F.3d 257, 262-63 (3d Cir. 2001). As in all sex-discrimination cases, the employee must show that the conduct "was not merely tinged with offensive sexual connotations, but actually constituted discrimination because of sex."

Hanover attacked Bonson's prima facie case by arguing that, since Title VII does not cover sexual orientation, he could not show that he was a member of a protected class. While the court acknowledged that the Third Circuit has not recognized a sexual-orientation discrimination cause of action under Title VII—a question on which the circuits have split and which the Supreme Court is now considering in Altitude Express v. Zarda—it reasoned that this did not affect the viability of Bonson's gender-stereotyping claim.

Bonson claimed that Gaddis and Smoyer called him derogatory names and told others he was gay because he had "good hygiene, combed his hair and smelled good"—habits that apparently did not comport with his supervisors' stereotypical views of his gender. Bonson's mother, who also worked at Hanover, testified that the majority of their coworkers were "slobs" who were envious of Bonson's hygiene and looks and that Gaddis used offensive terms, even to her, when speaking about her son.  While it bears mention that Bonson is actually heterosexual, this fact did not affect his perception-based claims or the court's decision. Viewing the record evidence in the light most favorable to Bonson, the court concluded that he had alleged sex-based harassment and discrimination by offering evidence that his supervisors' conduct was motivated by a belief that he did not conform to the stereotypes of his gender.

Continuing the McDonnell Douglas burden-shifting analysis, the court found that Hanover's no-call/no-show policy constituted a legitimate, nondiscriminatory reason for terminating Bonson, thus requiring him to demonstrate that Hanover's policy explanation was a pretext for unlawful discrimination. On this point, Bonson and another Hanover employee both testified that some of their coworkers who were "no call/no shows" were not fired. Based on his Sept. 1 conversation with Smoyer, Bonson also argued that his advance notice to, and permission from, his supervisor prevented the policy from applying. Crediting Bonson on both points, the court found sufficient evidence to create genuine factual disputes as to whether the policy was evenhandedly applied and whether it applied at all to Bonson's situation. Noting further factual disputes as to how Bonson's department was scheduled and what its call-off procedure was, the court concluded that resolving the parties' "distinct factual narratives" required assessments of their credibility—assessments that only a jury can make—and thus denied summary judgment.

Best Practices to Avoid Gender Stereotyping

As this case's outcome makes clear, employers must establish clear and comprehensible policies on employee conduct and then must take care to ensure that their policies are fairly and evenly applied. Here, testimony from Bonson and a coworker raised sufficient questions on these points to defeat summary judgment. It is also worth noting the critical role played by Bonson's mother's testimony: while she is undoubtedly biased in her son's favor, such credibility issues will not prevent a case from reaching a jury. Finally, though the U.S. Supreme Court has not yet resolved whether Title VII's prohibition on sex-based discrimination encompasses sexual orientation, employers should maintain broad anti-harassment policies that cover sexual orientation and gender identity, as harassment based on these characteristics can create viable gender-stereotyping claims under current federal law.

Sid Steinberg is a principal and chair of Post & Schell's employment and employee relations and labor practice groups. Steinberg's practice involves virtually all aspects of employee ­relations, ­including ­litigation experience defending employers against employment discrimination in federal and state courts. He can be reached at [email protected].

Daniel F. Thornton is an associate in the firm's employment and employee relations practice group.