SO, HOW DID WE GET HERE?

You ever step back and notice how really big changes sort of sneak up on you.  They kind of happen around the edges.  You know what I mean.  One day you are running around a happy fit 225lbs and all of a sudden you look in the mirror and without really doing anything differently you’re walking around at 290lbs! (Hey, that’s my story and I’m sticking too it, did I really eat that many cheesburgers?).  Or worse yet, your 16 years old and you think 40 is old and you wake up one morning and to find out you are 50.  What the heck happened?  Where did all the time go? 

 

Well, sometimes the law works that way too.  Title VII (the Federal law that governs employment discrimination) does not protect against harassment or discrimination based on sexual orientation.  Congress knows this, they wrote the law and they have repeatedly rejected attempts to amend Title VII to add sexual orientation to the list of protected categories.  No matter your personal feelings on the issue, that is the law, sexual orientation is not protected.   Or is it?

 

First, in 1989, we had Price Waterhouse v. Hopkins.  Ann Hopkins was denied a partnership in the accounting firm because she used profanity; was not charming and did not walk, talk or dress in a feminine manner.  A plurality of the Supreme Court (that means a majority agreed on the result but not the reasons for the decision) held “Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”  In short, the Court held you can’t discriminate against a woman because she is not feminine enough.  Ms. Hopkins sexual orientation was not an issue.  And gender stereotyping claims were born. Not a great big change.

 

In 1998 the Supreme Court, in a case called Oncale v. Sundowner held that same sex sexual harassment was actionable regardless of the gender of the victim or the harasser.  Basically, the case held that you can have sexual harassment even if the harasser does not have sexual intentions towards the victim.  The case has been trumpeted as an important gay rights case even though everyone involved was heterosexual.  And same sex sexual harassment was born.  Not a great big change.

 

Now, the 3rd Circuit Court of Appeals, (for those of you who are not legal groupies and don’t follow this stuff, the various federal circuit courts are the step below the Supreme Court) has held that a homosexual man can proceed with a claim of sex discrimination based on his failure to conform to “gender stereotypes.”  Mr. Prowel, the plaintiff in the case testified that he “had a high voice and did not curse; was very well-groomed; wore what others would consider dressy clothes; was neat; filed his nails instead of ripping them off with a utility knife; crossed his legs and has a tendency to shake his foot the way a woman would sit; walked and carried himself in an effeminate manner; drove a clean care; . . . and (my favorite) pushed the buttons on the nale encoder with pizzazz.”  These are his words, not mine. 

 

Now the lower court in this case dismissed Mr. Prowel’s claim holding that it was simply an artfully packaged sexual orientation complaint and that Title VII does not protect sexual orientation.  The appeals court, in what will, if this becomes law in other jurisdictions be a prophetic pronouncement stated:  “As this appeal demonstrates, the line between sexual orientation discrimination and discrimination because of sex can be difficult to draw.”  I’ll say.  No matter your personal feelings on the issue, that is the law, sexual orientation is not protected.   Or is it?  Seems like we found the great big change. 

 

It will be interesting to say the least to see if other circuits will adopt the 3rd circuits’ logic.  Stay tuned, today you are16, tomorrow 50.