A Pennsylvania employee who admitted having effeminate mannerisms was severely harassed by his co-workers. When he threatened to sue, he said, he was soon terminated “for lack of work.” In court, he charged sex discrimination based on gender stereotyping, religious discrimination, and retaliation.

What happened. “Powell” joined Wise Business Forms at its Butler plant as a machine operator in 1991. After several years of apparently relative peace, he was “outed” when a co-worker left a “man seeking man” personal ad and a note on his machine. From 1997 to 2004, Powell’s co-workers increased their harassment of him dramatically. Notes from purported Christians that he would go to hell, nasty comments about “faggots,” graffiti on the men’s room walls, a pink tiara on his machine, nicknames like Rosebud and Princess—Powell experienced all that and more. He complained to managers several times, who responded by repainting the men’s room but otherwise claimed they didn’t know who was harassing him.

Early in 2004 he considered suing and asked four co-workers if they would testify for him. Instead, they reported him to management. Powell also complained about what he saw as an ever-increasing workload with lower pay than comparable workers earned. After a meeting to air his concerns, Powell was fired. He filed a charge with the Equal Employment Opportunity Commission and then sued. A judge in federal district court dismissed his claims, primarily because Title VII of federal civil rights law does not include sexual orientation as a protected characteristic. Powell appealed to the 3rd Circuit, which covers Delaware, New Jersey, and Pennsylvania.

What the court said. Appellate judges noted immediately that Powell had charged bias based on gender stereotyping, not sexual orientation. He described the other men at his workplace as jeans-wearing guys who curse, hunt, fish, and watch football. Powell said he dresses neatly and prefers art and design to sports. That sounded to judges like a 2001 case (Bibby v. Philadelphia Coca-Cola Bottling Co.), where they ruled that a plaintiff who is harassed based on gender stereotyping can claim sex discrimination. They defeated Powell’s religious bias charge because there was no bias against his religion, but they sent his sex discrimination and retaliation charges back to district court to be heard by a jury. Prowel v. Wise Business Forms, U.S. Court of Appeals for the 3rd Circuit, No. 07-3997 (8/28/09).

Point to remember: BLR recommends that employers adopt codes of conduct that require employees to treat one another with respect, regardless of what is illegal.