Since 1994, members of every Congress but one have introduced legislation that would protect gay employees under federal anti-discrimination law. Many believe this year's version of the Employee Non-Discrimination Act (ENDA) has a better chance under President Obama, but key backer Rep. Barney Frank, D-Mass., warned supporters the bill still faces obstacles to passage.
But in the meantime, a case out of Pennsylvania could provide a balm for supporters of equality in the workplace. On Aug. 28, a 3rd Circuit panel opened a door for gay plaintiffs in employment discrimination disputes where they have found mixed results in the past. The appellate ruling in Prowel v. Wise Business Forms establishes that claims under Title VII for gender stereotyping can survive summary judgment even if the plaintiff also experienced discrimination based on his or her perceived sexual orientation.
On appeal, the 3rd Circuit affirmed the tossing of the religion claim because his only failure to conform "was by virtue of his status as a gay man." But it took a closer look at the stereotyping charge, concluding that harassment based on Prowel's sexual orientation "does not vitiate the possibility" that gender stereotyping didn't come into play as well.
"The pattern you see in most of the prior cases is courts accepting the legal principle that gays can bring gender stereotyping claims. And yet relatively few of them have succeeded," says Katie Eyer, a Salmanson Goldshaw associate who represented Prowel for Equality Advocates. "In prior cases, the courts took it upon themselves to say, 'Well, I think this case is really about sexual orientation, so I'm not going to send it to the jury.'"