Title VII of the Civil Rights Act of 1964 does not protect persons on the basis of sexual orientation.  However, a small number of federal courts have allowed Title VII suits by gay or lesbian employees brought under a theory of gender stereotyping.  These claims contend that Title VII protects employees from discrimination or harassment based on their failure to adhere to society accepted gender norms.

Last month, the Third Circuit Court of Appeals reversed summary judgment for an employer on a gender stereotype claim.  In Prowel v. Wise Business Forms, Inc., the plaintiff was a gay employee who alleged that he was subjected to an unrelenting stream of slurs and other harassment from male and female co-workers.  He was selected for layoff and sued alleging sex discrimination under Title VII.

The district court dismissed the claim, finding that the plaintiff was alleging sexual orientation discrimination.  In its reversal, the Third Circuit determined that the nature of the complaint was not that clear.  While admitting that the line between harassment based on sexual orientation and gender stereotyping is difficult to distinguish, the court found sufficient allegations of gender issues to allow the claim to go to a jury for trial.

These facts related to the plaintiff’s admitted demeanor.  He described himself as having a high voice and an effeminate walking style.  He talked about art, music, design and décor, which he claimed enraged his blue collar male co-workers.  The Third Circuit found these allegations to be sufficient evidence that his treatment at work was due to his failure to adhere to gender stereotypes as much as it was his sexual orientation.

If taken to its logical end, this decision provides Title VII protections to stereotypical “gay” behavior, while providing no coverage for homosexual workers who exhibit less flamboyant characteristics.  Absent changes to Title VII to cover sexual orientation, plaintiffs can be expected to continue to use the gender stereotype theory to bootstrap discrimination and harassment claims.