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Harassment based on nonconformance with gender stereotypes

January 23rd, 2014  |  Kathy Kapusta

We all know the mantra: “It shall be an unlawful employment practice for an employer … to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Although it does not protect against bias based on sexual orientation, several courts have held that this language prohibits discrimination against an employee because the employee does not conform to traditional gender norms. For example, assertive behavior on the part of a woman might be judged more critically because aggressive conduct is commonly viewed as a masculine characteristic or a female might be penalized for her “unladylike” language.

Two recent court decisions should serve as reminders that while sexual orientation is not a protected class under Title VII, discrimination on the basis of an employee’s failure to conform to expected gender stereotypes may land an employer in court.

Manly-men don’t play golf

In the first case, a Ford assembly line employee did not fit in with the stereotypical male worker on a plant assembly line. Unlike other workers, he did not drink, do drugs, or swear around women. In addition to being passionate about golf — a sport one group leader repeatedly called a “sissy’s game” — he did not engage in activities traditionally considered to be “manly” like hunting or fishing. And, he wore clothes that looked “like what girls would wear.”

Harassment. The employee contended that he faced harassment, discrimination, and ultimately termination because his coworkers perceived that he failed to conform to the male stereotype.  They told him that he “did the queerest things” and asked why he couldn’t “just work and be like normal people.” Beginning in early 2010, the employee alleged that he was the victim of coworker sexual harassment. For instance, his group leader purportedly sent him two text messages. The first stated: “Found the candy you like for Valentines. But can’t remember if you like white or dark chocolate.” A picture of two chocolate cake pops shaped like penises was attached. The second contained a graphic depicting Elmer Fudd sodomizing Bugs Bunny. Another group leader gave him a five gallon container of Vaseline, telling him “Cappy you need this Vaseline for your ass since you take cock there all the time.”

On another occasion, his coworkers allegedly put grease and dirt on his chair; when he sat in the mixture and stained his pants, they kept track of votes on the substance’s identity with a whiteboard delineating the options of “dirt, grease or cum.” In addition, one of the group leaders would walk past the employee simulating “sucking a cock.” On another occasion, when denied an emergency bathroom break, he urinated in his pants. His group leader then told other workers that the employee “was like a little baby” and “pissed [his] pants.” Sometime after this incident, he was placed on a “no work available” list. He was ultimately terminated in December 2010 when his supervisor noticed that he had a black bag with a bottle full of urine. The employee had carried it into the plant because he urinated during his commute and did not want it to freeze.

Hostile work environment because of sex. The employee sued Ford and the two group leaders alleging that they harassed and discriminated against him on the basis of sex, retaliated against him by firing him, and caused him emotional distress. Noting that a plaintiff hoping to succeed on a claim of sex stereotyping must show that he fails to act and/or identify with his or her gender, a federal district court in Ohio pointed out that the Sixth Circuit has recognized that this theory of sex stereotyping will succeed “where gender non-conformance is demonstrable through the plaintiff’s appearance or behavior.”

Here, there was evidence supporting the conclusion that both his appearance and behavior put him outside of a “manly-man stereotype,” the norm in the world of Ford’s Ohio assembly plant production line. Not only did he wear feminine clothing, while dressed in his work apron, he pretended to be pregnant and to rock a fake baby. He also contended that his past career in management and his practice of keeping detailed notes about his activities at work also comprised behavior that placed him outside of the expected male norm at the Ford plant. He further asserted that the group leaders and other coworkers harassed him repeatedly, called him “queer,” and inundated him with sexual comments, gestures, and pranks.

Though Ford argued that the majority of the alleged behavior was “indisputably asexual” and “objectively harmless,” the court disagreed. When taken as a whole, the evidence could support a finding that the defendants’ actions created a hostile work environment. The vulgar acts mimed toward the employee; threats made while he faced harassment about needing Vaseline for anal sex; crude text messages; catalogues of women’s clothing and lingerie left for him; and a sexually-explicit wooden box that could be interpreted to suggest he should give (or gave) fellatio in the area near his workspace all could support the conclusion that the work environment was hostile or abusive.

Pretext. Ford claimed that it had a legitimate reason for firing the employee: he brought the bottle of urine into the plant and placed it in a barrel of gloves and he had a company owned keyboard in his locker. The employee, however, claimed that he properly disposed of the urine in the bathroom. Moreover, there was evidence that the gloves, which were supposedly soaked in urine, were never tested. In addition, while there was no evidence as to whether the gloves were intended to be recycled or thrown out, there was other garbage in the barrel, including food. Nor, the court pointed out, was there any rule against bringing a bottle of urine into the workplace or disposing of it in the bathroom. Finally, there was evidence that another employee who had urinated on company property was suspended, not discharged. As to the keyboard, there was no evidence that it was actually company-owned. Observing that the employee presented sufficient evidence of pretext, the court found that the defendants were not entitled to summary judgment as to this claim.

Liability. The court also rejected Ford’s assertion that it was not responsible for the coworkers’ harassment because it had no notice of their conduct. Here, there was evidence that the employee reported the conduct on more than one occasion. Not only did he tell his supervisor that he was scared of his coworkers’ actions, he also told him his coworkers were subjecting him to sexual innuendo, ridicule, and harassment. Thus, the employee was allowed to proceed to trial on his claim that he was discriminated against because he did not conform to (or was perceived as not conforming to) the stereotypical expectations and images of masculinity. Ford was also denied its motion for summary judgment on the employee’s retaliation claim related to sex discrimination as well as his intentional infliction of emotional distress claim.

How women should look and act

Three weeks later, a federal district court in Pennsylvania found that an openly gay female officer, who alleged that her female supervisor harassed her because her outward exhibition of sexual conduct did not conform to how a woman should look in the workplace or act in her private life, stated a plausible claim of a sexually hostile work environment.

Harassment. The officer began working for the Philadelphia Prison System (PPS) in July 2001, eventually rising to the rank of correctional sergeant. She began to receive harassing comments from her female supervisor, allegedly focusing on her perceived lack of femininity, outward signs that she had engaged in sexual conduct, and her sexual orientation. For instance, on one occasion, the supervisor thought the employee had recently had sex due to her disheveled hair and a mark on her neck, which the supervisor believed was a “passion mark.” The supervisor then shared her observations with other supervisors and coworkers, pointing out her “passion mark” to a captain and loudly asking if her hair was “messed up” because she “was getting some before she came to work.”

Several weeks later, the supervisor began to scream at her in front of coworkers and other supervisors. During the rant, she referenced the officer’s sexual preferences in a threatening manner. The supervisor also encouraged coworkers and subordinates to ignore and disobey the employee’s orders and gave her a negative performance review. When she complained to a superior, she was told “if you don’t like it, you can leave.”

Although the employee filed an EEOC charge alleging gender bias and a hostile work environment, PPS investigated and found the employee’s allegations against her supervisor to be unfounded. The supervisor then increased her harassment, allegedly telling the employee that she “could be messed with and nothing will happen.” The employee was subsequently transferred to a different facility with poorer conditions, fewer responsibilities, and fewer hours.

Non-conformance with gender stereotype. Denying dismissal of the employee’s HWE claim, the court first rejected the employer’s contention that she failed to show the alleged harassment was based on sex. Although sexual orientation is not a protected class under Title VII, discrimination on the basis of an employee’s failure to conform to expected gender stereotypes is sex discrimination, the court stated. Here, the employee sufficiently alleged that her supervisor discriminated against her on the basis of her failure to conform to expected gender stereotypes.

Specifically, the supervisor’s alleged harassment focused on her appearance — the signs of sexual conduct that the supervisor believed she exhibited. Thus, while the supervisor made harassing comments throughout 2011 and 2012 to other supervisors and coworkers, she did not make similar comments about women who conformed to her expectations of a female. Because the employee contended she was harassed due to her outwardly sexual conduct, which did not meet her supervisor’s expectation of how a woman should look in the workplace or act in her private life, she sufficiently alleged that she suffered discrimination based on sex. The mere possibility that the harassment was instead motivated by her sexual orientation did not warrant dismissal at this stage of the litigation, the court stated.

State laws. While sexual orientation is not a protected class under Title VII, sexual harassment is not acceptable conduct. Workplace harassment can lead to financial liability for an employer, cause loss of productivity in the workplace, and lead to poor employee morale. Therefore, employers should do everything possible to prevent harassment from occurring. It is also important to keep in mind that many states have either included a prohibition on employment discrimination because of sexual orientation in their fair employment practices laws or have passed separate laws. Some state laws cover employers with as few as one employee. In addition, state tort actions may also be used to redress adverse action based on sexual orientation.