What is the difference between sexual orientation discrimination and gender stereotyping?

by on September 3, 2009  •  In Employment law, ENDA

For most people, much of the time, the association between homosexuality and gender nonconformity is pretty strong, common sense, a no-brainer.  Professor Jeffrey Hirsch (Tennessee Law) noted on the Workplace Law blog that he, like the author of the Wall Street Journal Law Blog, was puzzled by a new Third Circuit decision that drew a sharp line between the two, when in reality the difference is often fuzzy. As the WSJ phrased it:

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.

But if you keep up with Title VII law, the latest ruling is simply another in what is becoming a long line of courts that allow gay (or trans) plaintiffs to assert a claim for discrimination based on sex – which of course is covered by Title VII – when the adverse action turned on the individual's failure to adhere to gendered standards of conduct and appearance.

In Prowel v. Wise Business Forms, Inc., 2009 WL 2634646, the Third Circuit reversed the trial court's dismissal of the gay plaintiff's sex discrimination claim on the ground that Title VII does not cover sexual orientation discrimination.  The facts showed that he had been verbally harassed at work over a significant period of time, including having been repeatedly called "rosebud," "princess" and "fag." The Court of Appeals reasoned that the plaintiff had

adduced evidence of harassment based on gender stereotypes…[I]t is possible that the harassment of Prowel was because of his sexual orientation, not his effeminacy. Nevertheless, this does not vitiate the possibility that Prowel was also harassed for his failure to conform to gender stereotypes…Because both scenarios are possible, the case presents a question of fact for the jury…

Yes, the reasoning is tortured, even silly, but that's the result of there being no explicit prohibition against discrimination based on sexual orientation. A lot of time, energy and money get wasted in cases like Prowel's – of which there are many – because litigants and judges have to weave their way through this logical maze.  The increasing willingness of courts to let these cases proceed to trial is another signal to Congress that it might as well pass ENDA – just make the law what it obviously should be and allow this kind of dispute to be resolved much more efficiently.


One Response to What is the difference between sexual orientation discrimination and gender stereotyping?

  1. Katherine Franke September 4, 2009 at 10:29 AM

    Nan – excellent question. I plan on posing it to my students when I teach the case this fall (don’t tell them!). Of course gender and sexual orientation discrimination ought to be understood as overlapping but not coextensive forms of bias in the workplace, but the problems of proof are impossible to unravel (see my recent post on the case: link to blogs.law.columbia.edu.

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