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Trial by Jury

A jury has yet to hear Brian Prowel's lawsuit alleging gay-baiting and discrimination at his former workplace. But thanks to a federal appeals court ruling, equal-rights advocates say, he has already secured an important victory. 

Prowel sued his former employer, Wise Business Forms of Butler, in 2006. The suit contends that, as an effeminate gay man, Prowel suffered years of harassment by coworkers who called him derogatory names like "Rosebud," and who left nasty graffiti about him in the bathroom. When Prowel complained about the treatment, his lawsuit contends, he was fired. Such treatment, the lawsuit says, violates federal prohibitions on discrimination on the basis of sex: Unlike most plaintiffs in such cases, Prowel is a man, but claims that he was harassed for not being "masculine" enough.  

Wise contends that Prowel was laid off due to a slowdown in work at the plant. And initially, U.S. District Court Judge Terrence McVerry threw out the case. McVerry ruled that while Prowel may have suffered, his torment didn't count as sex discrimination. McVerry ruled that any harassment would have stemmed from Prowel's homosexuality. And federal law doesn't cover "discrimination on the basis of sexual orientation," McVerry wrote. 

But on Aug. 28, a three-judge panel in the U.S. Third Circuit Court of Appeals reversed McVerry's ruling. 

"As long as the employee -- regardless of his or her sexual orientation -- marshals sufficient evidence such that a reasonable jury could conclude that harassment or discrimination occurred 'because of sex,' the case is not appropriate for summary judgment," reads the opinion of Thomas M. Hardiman, D. Michael Fisher and Michael A. Chagares.

For Prowel, the ruling is no guarantee of victory: Saying a case shouldn't be thrown out is a long way from saying it should succeed. But his attorney and civil-rights advocates say it is a real step forward in freeing workers from conforming to gender roles.

"It means that LGBT people haven't been carved out from the protection of our federal employment discrimination laws, and that's very good news," says Sue Frietsche, senior staff attorney at the Women's Law Project. The Project was one of more than 20 women's-rights and LGBT-rights groups that signed on as an intervener to the case. 

"It's an important victory for women's rights -- women in non-traditional employment often suffer victimization based on their failure to conform to traditional gender stereotypes. Often it's accompanied by harassment based on their real or perceived sexual orientation."

"It's really a signal for LGBT litigants," says Katie Eyer, who represented Prowel in the appeal. "A lot of prior courts have recognized in theory they can bring gender stereotyping claims."  

The date for Prowel's jury trial has not been set. Wise is free to appeal the court's decision, but Eyer says she considers that unlikely. Jeff Straub, general manager for Wise, declined to comment for this story.

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