Employment Law - Title VII - Third Circuit Issues Split Decision in Case Involving Gay Man's Harassment Claims

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EMPLOYMENT LAW--TITLE VII--THIRD CIRCUIT ISSUES SPLIT DECISION IN CASE INVOLVING GAY MAN'S HARASSMENT CLAIMS.--Prowel v. Wise Business Forms, Inc., No. 07-3997, 2009 U.S. App. LEXIS 19350 (3d Cir. Aug. 28, 2009).

The provisions against employment discrimination contained within Title VII of the Civil Rights Act of 1964, (1) although broad themselves, are greatly limited in scope by the statute's application to only five protected classes. (2) Although there has been much litigation regarding the breadth of each individual class, (3) the proper treatment of claims alleging discrimination because of overlapping characteristics remains unclear. Recently, in Prowel v. Wise Business Forms, Inc., (4) the Third Circuit held that it is a question of fact, to be decided by a jury, whether a male employee suffered harassment because of his sexual orientation or because of his effeminacy; (5) only the latter would constitute a form of impermissible gender stereotyping under Title VII. However, the court rejected the plaintiff's second claim--that he suffered discrimination as a result of religious harassment--because the alleged religious discrimination was based solely on his sexual orientation, an unprotected category under Title VII. (6) Together, the claims provided the circuit with an opportunity to demonstrate how an allegation of discrimination based on both impermissible and permissible motivating factors should be treated under the law. Rather than reach the same result for the two claims, however, the court split its decision, ostensibly basing the distinction on the strength of the nexus between the protected and unprotected statuses. The reasoning behind the holdings is incoherent, as it produced an inconsistent method of disposing of cases based on more than one characteristic. The court's obvious difficulty in dealing with identity-based claims created a dubious precedent for handling similar issues in the future.

Brian Prowel began working at Wise Business Forms in 1991. (7) Prowel alleged that during the course of his employment, until his termination in December 2004, he suffered numerous incidents of harassment at the hands of his coworkers. (8) A self-described "effeminate man," (9) Prowel alleged that his coworkers mocked his mannerisms and appearance--for instance, by giving him derogatory nicknames, leaving a packet of lubricant and a tiara at his workspace, and vandalizing the bathroom with graffiti about AIDS and about Prowel's engaging in sexual acts with other men at the plant. (10) In addition, Prowel complained of harassment that was religious in tone, including "the Human Resources manager telling other employees that Prowel did not fit in with the good Christian values of the company" and coworkers' leaving prayer notes and religious materials at his work station that stated that Prowel would "burn in hell." (11) As a result of this harassment, as well as the management's inconsistent responses to it, (12) Prowel became increasingly dissatisfied with his work and began contemplating a lawsuit against the company, a consideration he discussed with other employees. (13) On December 13, 2004, Wise management informed Prowel that it was terminating his employment for lack of work. (14) After exhausting the Equal Employment Opportunity Commission's avenues for redress, Prowel sued Wise in the United States District Court for the Western District of Pennsylvania, requesting relief under Title VII and the Pennsylvania Human Relations Act. (15) He argued that he had been the subject of "harassment and wrongful termination because of sex and religion and concomitant retaliation." (16)

The district court granted summary judgment in favor of Wise. (17) First, the court considered Price Waterhouse v. Hopkins, (18) in which the Supreme Court held that employees who failed to conform to prevailing gender stereotypes could bring sex discrimination claims. (19) The court also acknowledged that the Third Circuit had previously stated, in dicta in Bibby v. …