Discriminating Because of "Pizzazz": Why Discrimination Based on Sexual Orientation Evidences Sexual Discrimination under the Sex-Stereotyping Doctrine of Title VII

By Szwalbnest, Olivia | Texas Journal of Women and the Law, Fall 2010 | Go to article overview

Discriminating Because of "Pizzazz": Why Discrimination Based on Sexual Orientation Evidences Sexual Discrimination under the Sex-Stereotyping Doctrine of Title VII


Szwalbnest, Olivia, Texas Journal of Women and the Law


I. INTRODUCTION ................................................................................... 76

II. DEFINING "BECAUSE OF SEX" UNDER TITLE VII ....................... 79

A. The History of "Because of Sex" Under Title VII ..................... 79

B . The Supreme Court 's Interpretation of "Because of Sex " ........ 80

1. Sex Stereotyping .................................................................. 80

2. Hostile Work Environment .................................................. 82

3. Same-Sex Sexual Harassment ............................................. 83

C. The Lower Courts ' Interpretation of "Because of Sex " and "Bootstrapping" Protection into Title VII ................................ 84

D. Failed Legislative Action ........................................................... 86

III. APPLYING THE SEX-STEREOTYPING CLAIM TO HOMOSEXUAL PLAINTIFFS ....................................................... 88

IV.CASES ADOPTING THE BROAD READING OF TITLE VII ........... 91

A. Centola v. Potter: Sex Stereotyping and the Gay-Male Employee ................................................................................... 91

B. Heller v. Columbia Edgewater Country Club: Sex Stereotyping and the Lesbian-Female Employee ...................... 92

C. Why a Broader Reading Does Not "Bootstrap " Sexual Orientation into Title VII ........................................................... 93

V.RETURNING TO PROWEL V. WISE BUSINESS FORMS, INC. .......... 93

VI.CONCLUSION ...................................................................................... 94

I. INTRODUCTION

Brian Prowel worked as a naie encoder at Wise Business Forms, Inc. for thirteen years before he was terminated from his job for what his employers described as "lack of work."1 Prowel, a self-identified effeminate man, did not fit in with the other naie encoders. His co-workers were those "typically" employed in a "blue-collar" position. When asked about the normal naie encoder at Wise Business Forms, Prowel described his co-workers as

[B]lue jeans, t-shirt, blue collar worker, very rough around the edges. Most of the guys there hunted. Most of the guys there fished. If they drank, they drank beer, they didn't drink gin and tonic. Just you know, all into football, sports, all that kind of stuff, everything I wasn't.2

Prowel was distinguishable from his co-workers. Unlike the other employees, Prowel, "had a high voice, did not curse; was very wellgroomed; wore what others would consider dressy clothes; was neat;... crossed his legs;... and pushed the buttons on the naie encoder with 'pizzazz.'"3 Those who worked with Prowel targeted him because of his effeminate behavior. His co-workers frequently called him "Princess" and "Rosebud."4 Additionally, Prowel's co-workers subjected him to humiliating situations such as placing a pink, light-up, feather tiara with a package of lubricant jelly on his naie encoder.5

In addition to his effeminate behavior, Prowel was a gay man.6 He was "outed" at work when someone anonymously placed a newspaper clipping of a "man-seeking-man" advertisement on his workstation along with a note that read, "Why don't you give him a call, big boy."7 After this incident, he overheard a co-worker say, "I hate him. They should shoot all the fags."8 Because of this harassment, Prowel considered suing the company and informed non-management personnel of his intentions.9 He was fired six months later.10 Prowel then sought legal relief for the persistent harassment and his termination through Title VII under its sexstereotyping doctrine.11

Title VII's sex-stereotyping doctrine was brought about through the Supreme Court's decision in Price Waterhouse v. Hopkins}1 In this case, the Supreme Court held that sex stereotyping constituted evidence of Title VII sex discrimination.13 In an oft-quoted passage, the Court professed ":[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group. …

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