Sunday, September 23, 2007

Why do we need ENDA?

Why Do We Need ENDA?
Here's another example...

Arthur Leonard

OK, you've been discharged by your employer, you're a gay man, you've suffered years of teasing, name-calling, pranks, and the like from fellow-employees, and you figure it's time for payback through a lawsuit. Problem: you live in Western Pennsylvania, a state with no law forbidding sexual orientation discrimination, and you were not employed in a municipality with a gay rights law either. What to do? Well, if you can credibly allege that your co-workers were inspired by your "effeminate mannerisms and appearance," perhaps you can use that new-fangled theory that's gained credence in many federal courts, that discrimination motivated by hostile reaction to the plaintiff's gender non-conformity, can be conceptualized as sex discrimination under Title VII of the federal Civil Rights Act.
Sounds good, right? Well, somehow it didn't work for Brian Prowel, who suffered adverse summary judgment at the hands of U.S. District Judge Terrence F. McVerry on September 13 in Prowel v. Wise Business Forms, Inc., 2007 WL 2702664 (W.D.Pa.). McVerry picked up on the rather constricted 3rd Circuit caselaw on this, expressed in Bibby v. Philadelphia Coca-Cola Bottling Co., 260 F.3d 257 (3rd Cir. 2001), which had very similar facts to those alleged by Prowel. The 3rd Circuit was notably sympathetic to the plaintiff, and Judge McVerry makes sure to state in his conclusion that "the conduct Prowel apparently suffered at the hands of his co-workers was reprehensible," but McVerry rubs home the point more than once: Congress has not yet voted to ban sexual orientation discrimination, and as far as McVerry is concerned, that ends the question, since it seemed clear to him, based on the pleadings, that Prowel was attempting to bootstrap a sexual orientation claim under Title VII by arguing that he was being persecuted because of his effeminate manner, a theory that doesn't do well in the 3rd Circuit as a result of Bibby. (Based on the factual allegations, I think this claim would have most likely survived summary judgment in the 9th Circuit, and maybe several others.)
In particular, Judge McVerry, pointing out that Title VII is, after all, about discrimination, concluded that Prowel fell short in alleging the necessary facts to show that he was treated differently from other employees because he is a man. Not enough, said McVerry, for Prowel to allege that a woman with the same mannerisms would not have been treated as he was. Oh, no, in McVerry's view the appropriate "comparator" would be a butch lesbian. In other words, in order to state a claim here, Prowel would have to show that gender-non-conforming men are treated differently in that workplace from gender non-conforming women, otherwise he hasn't really alleged sex discrimination.
Under this theory, of course, one comes back to square one and the need for ENDA. Although some federal courts have been open to an expansive precedential reading of the plurality opinion in the Price Waterhouse case on sex stereotyping, by no means all are willing to follow down that path, and it is past time for federal statutory protection to be express. An overwhelming majority of the public tells public opinion pollsters that gay people should not have to suffer employment discrimination, and it's time for Congress to get with the program. Reports are that the House of Representatives may pass ENDA during this session, but there are few hopes that enough Senate Republicans will break ranks to provide the necessary 60 votes to conclude debate in the Senate, even were the bill to get through the committee process. And, of course, there is the likelihood that the resident of the White House would veto it, on the ground that folks like Prowel are not entitled to "special rights."
September 22, 2007 in Legal Issues

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