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The odd thing about Brian Prowel's lawsuit against his former employer, Wise Business Forms of Butler, is that no one disputes some of its most disturbing claims.

No one's denying that Brian Prowel was treated shabbily by his coworkers for much of his 13 years there. Nobody is defending the homophobic graffiti left for him to see in the men's room. No one is trying to justify cruel taunts, like leaving photos of naked men and a packet of KY jelly at his work station. No one is suggesting that he deserved to receive threatening calls at home -- calls apparently made from a workplace phone number.

No, the arguments at the heart of Prowel v. Wise Business Forms have nothing to do with any of that. Instead, they hinge on questions that might not seem terribly relevant if you were on the other end of such treatment: Was Prowel harassed because he sleeps with men ... or because he doesn't act manly enough? Was he the victim of a form of sex discrimination? Or was he simply the target of an especially crude, vicious homophobia?

Those questions are currently pending before a federal appeals court, which may decide whether Prowel's coworkers were sexist or homophobic. If the court settles on the latter, it will be, strangely enough, a vindication for Prowel's employer.

But more is at stake than Prowel's career. Across the country, women's groups have seized on this case as a test for the rights of workers everywhere -- especially those in fields that have not traditionally been occupied by people of one gender or the other. And Prowel's case has already opened up questions that elected officials across the country are grappling with: Who deserves protection from anti-discrimination statutes? And which workers will have to fend for themselves against hatred in the workplace?

click to enlarge Christina Cann, Sue Frietsche and Tatyana Margolin of the Women's Law Project. Frietsche and Margolin are co-authors of a brief supporting Prowel. - HEATHER MULL
Christina Cann, Sue Frietsche and Tatyana Margolin of the Women's Law Project. Frietsche and Margolin are co-authors of a brief supporting Prowel.

"We are claiming our client is entitled to the same protections as anyone else," says Prowel's attorney, Katie Eyer. "Really, gender nonconformity is what this is about. This is an issue that affects gay people and straight people."

Brian Prowel worked operating a piece of printing equipment called a "Nale encoder" at Wise Business Forms for more than a dozen years. But, as his lawsuit against the employer acknowledges, he wasn't like the firm's other approximately 145 employees. Prowel stood out by engaging in many behaviors -- in his deposition, he mentioned having a high voice, not swearing profusely, have a clean car with a rainbow decal on it, filing his nails and pressing the button on his machine with "pizzazz" -- that seemed, well, not particularly masculine. He also talked with his friends at the plant about his relationships with other men.

In 2003, the suit says, he was told by a coworker, "Listen, faggot, I don't have to put up with this from you." Prowel says he reported the incident and nothing came of it. Around the same time or a little earlier, another coworker floated the nickname "Princess" around the plant. In 2004, Prowel claims in the suit, he overheard another coworker saying "I hate him. They should shoot all the fags." This, too, Prowel says he reported, to no effect. Graffiti in the men's room said he had AIDS and was having sex with other men in the plant.

While Prowel was always out to his friends at work, he tried to keep his sexuality private from the general population there. He says that the poor treatment began after he was "outed" by a man-seeking-man advertisement left on his workstation with a note saying "why don't you give him a call, big boy?" It's unclear precisely when that happened, but most of the specific claims in the suit happen after 2002.

The suit cites internal business documents from Wise saying that Prowel was written up for insubordination in April 2004, after he twice refused to perform a task he said was outside the purview of his job description.

Prowel was terminated from the company Dec. 13, 2004. Wise says Prowel was laid off because of a drop in business -- the suit says that between 2001 and 2006, the company has laid off 44 workers, and hasn't hired anyone else to perform the job Prowel had been doing. But Prowel contends that the company fired him once he began asking coworkers whether they'd testify in a discrimination lawsuit he was thinking of filing.

He filed the case in district court anyway, in February 2006. His lawsuit claimed that he'd been discriminated against in violation of federal equal-opportunity laws and the Pennsylvania Human Relations Act. Prowel, the complaint alleged, had been "harassed due to a perception that he is effeminate [and] does not meet male stereotypes." What's more, the suit alleges, Prowel "was wrongfully terminated from his employment in retaliation for his complaints about such harassment."

While Prowel himself has been advised by his attorney not to speak to the press while his case is pending, he said in a statement issued by the Center for Lesbian and Gay Civil Rights, "All I've ever wanted was to be able to do my job, without being subjected to harassment. My sexual orientation, sex and religious beliefs have nothing to do with my ability to be a good worker, and they should not be a free license for my coworkers and supervisors to treat me in the way that they did. I repeatedly asked Wise to help solve this problem, and instead they terminated me."

In the suit, general manager of the Butler plant Jeff Straub -- who did not respond to requests for comment for this story -- said that there was insufficient work to keep three Nale encoders busy, as much of the result of their work is now available online. In his deposition, Straub said that when it became clear that one of the three Nale encoders would have to go, he chose Prowel for the chopping block based on his "relative degree of cooperation, willingness to perform other tasks, interest in future advancement opportunities, productivity, and cost of three operators." He also cited Prowel's frequent complaints about not being paid enough, despite being the highest-paid of the three Nale encoders.

The argument at the heart of Prowel's suit sounds simple. His coworkers wouldn't have thought twice about his "effeminate" behavior if he'd actually been a woman. But Prowel was bullied for the very same behavior, just because he was a man. That, the suit contends, runs afoul of state and federal laws requiring that employers ensure male and female employees are treated equally.

Prowel's suit says that Wise's defense is "rife with innuendo that gay employees who seek the protections of Title VII must 'really' be seeking to hoodwink the courts into affording sexual orientation discrimination protections. Defendant repeatedly asks this Court to make unsupported factual assumptions about what this case is 'really' about, and to adopt legal standards that would carve gay plaintiffs out of Title VII's otherwise applicable protections. In fact, gay plaintiffs – like their heterosexual counterparts – are entitled to the full protections of Title VII."

Prowel's argument resonated across the country. It is the mirror image of complaints by female workers in fields like construction and policing -- women who say they are harassed for being too masculine.

click to enlarge Stephen Glassman, chair of the Pennsylvania Human Relations Commission - HEATHER MULL
Stephen Glassman, chair of the Pennsylvania Human Relations Commission

"We're hopeful to see the outcome of this case come out in favor of Brian," Kelly Kupcak, director for policy of Cleveland-based Hard Hatted Women, an advocacy group for women in trade and technical careers which has signed on to a brief filed in support of Prowel. "It will demonstrate that people are looking more closely at the types of discrimination that occur on the job."

But such concerns did not sway federal district Judge Terrence McVerry, who presided over the initial hearing on Prowel's claims. In a September 2007 ruling, McVerry acknowledged that "the conduct which Prowel apparently suffered at the hands of his coworkers was reprehensible." Nevertheless, McVerry found in favor of Wise.

Prowel had been harassed, McVerry said, because he was gay. And while McVerry didn't endorse homophobic behavior, he ruled that the law didn't prohibit it. Federal anti-discrimination laws don't cover "discrimination on the basis of sexual orientation," he wrote. "The Court must give effect to this Congressional intent."

State law doesn't bar anti-gay bigotry either. And while some municipalities, including Pittsburgh, do prohibit such discrimination, Butler isn't one of them.

Citing other court cases, McVerry's ruling acknowledged that "stereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality." But he argued that if Prowel wanted to prove that "gender, rather than his sexual orientation, as the cause of the discrimination," Prowel would have to "show that a lesbian woman who exhibited unusually masculine behaviors would not have been subject to harassment."

Prowel appealed McVerry's ruling, which was met with a storm of criticism. Sue Frietsche, of the Women's Law Project, says Prowel "didn't bring a sexual-orientation case. He couldn't." Not in Butler County, anyway. And while he "was subjected to a mixture of anti-gay discrimination and sex discrimination," one shouldn't be a smokescreen for the other.

Stephen Glassman, chair of the state's Human Relations Commission, called McVerry's ruling a "roadmap as to how to discriminate. The court very sadly described a path to use to avoid prosecuting on one category by using another."

Glassman acknowledges that state law is silent on anti-gay discrimination. But, he says, "It is not sexual orientation that is the basis for most discrimination. Hair or makeup or gestures or style ... that is the issue. Anyone who's not rigidly conforming is subject to bias."

Gillian Thomas, senior staff attorney at Legal Momentum (formerly NOW Legal Defense and Education Fund), and co-author of the brief supporting Prowel, says that while Prowel "happened to be homosexual, it's irrelevant. There are plenty of effeminate straight men out there." But her main concern is with female employees: "It's essential to gender equality that women are permitted a wide range of behaviors and identities without being penalized."

Since the passage of the federal Civil Rights Act of 1964, it's been illegal to discriminate against men or women just because they are men or women. Title VII of the act makes it illegal for an employer to offer unequal "terms, conditions or privileges or employment" on the basis of race, color, religion, sex or national origin.

The act provided sweeping protections, among them the establishment of the federal Equal Employment Opportunity Commission. But it did nothing to prevent discrimination on the basis of sexual orientation: Gays and lesbians are not among the "protected classes" named in the bill.

With federal law silent on protecting gays and lesbians, preventing discrimination falls to state and local governments. But protections are spotty and piecemeal. Sexual minorities are protected from discrimination in 20 states, but Pennsylvania isn't among them. Pittsburgh and 13 other municipalities in the state do provide those protections, but only within their municipal boundaries.

Nor are there uniform protections on the basis of gender identification -- the gender you consider yourself to be, as opposed to the gender of the person you sleep with or the genetic gender you were born with. Pittsburgh is among the rare exceptions that do offer such protections. But few Pennsylvania municipalities prevent discrimination against transgender people, let alone against women who act "too manly" ... or men who don't act "manly enough."

Where legislators have been slow to act, judges have had to step in. The best-known example is Price Waterhouse v. Hopkins, a noted U.S. Supreme Court decision from 1989. Ann Hopkins was denied promotion, despite an apparently exemplary job performance, because supervisors felt she acted "macho," used foul language and "overcompensated for being a woman." Hopkins' sexual orientation was never an issue in the case. But according to court records, Hopkins was told by a partner in the firm that it would help her career if she would "walk more femininely, talk more femininely, dress more femininely, [and] wear make-up."

click to enlarge County councilor Amanda Green - HEATHER MULL
County councilor Amanda Green

In its ruling, the Supreme Court ruled that "we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group."

Or are we?

Much of McVerry's ruling against Prowel was based on a case that originated in Philadelphia. There, a federal appeals court held that John Bibby failed to prove that his employer, a Coca-Cola bottling plant, had discriminated against him on the basis of sex.

Bibby alleged a pattern of ill treatment: gay-bashing graffiti, unfair discipline, a coworker accosting him in a locker room and screaming "everybody knows you're a faggot." But in 2001, the Third Circuit Court of Appeals found that Bibby had suffered only because of his sexual orientation: Bibby, the judges found, had done nothing to show that "he was harassed because he failed to comply with societal stereotypes ... or that as a man he was treated differently than female co-workers. His claim was, pure and simple, that he was discriminated against because of his sexual orientation."

Bibby's attorneys argued that the court's ruling would put an extra burden on gay and lesbian employees: Unlike straight employees, they would be required to "prove that their harassers were not motivated by anti-gay animus." The court rejected that assertion, arguing that if a plaintiff can prove discrimination on the basis of sex, "the sexual orientation of the plaintiff is irrelevant."

In practice, though, things may not work out quite that neatly. Intolerant supervisors or coworkers often blur the lines between sexual identity and sexual orientation: They may assume that if a female employee acts "too masculine," she may not have sex with men. As Eyer puts it, workers who don't conform to traditional gender roles will not only hear "comments targeting a person because they aren't feminine or masculine enough, but often they're called faggot or dyke [as well]." And those slurs, she says, can conceal sex discrimination by making it look like anti-gay discrimination -- especially if the employee happens to actually be gay.

In Prowel's case, then, each side is accusing the other of trying to redefine the nature of the harassment. Wise accuses Prowel of trying to turn a case of legal, if unpalatable, anti-gay discrimination into a case of gender discrimination. Prowel accuses his employer of doing the opposite: trying to conceal gender-based discrimination against Prowel by claiming he incurred it by being gay.

As a result, some of the legal wrangling has focused on when, exactly, the harassment began -- and if Prowel's coworkers knew he was gay at the time it happened. Wise "admitted there was terrible harassment of your client," federal appeals judge Thomas Hardiman noted during an Oct. 1 hearing, over which he presided with Michael A. Chagares and D. Michael Fisher. But, Hardiman said, the treatment "was visited upon him not when he began acting effeminate, but after he was out."

"There is no chronology established as to when the offensive gendered harassment began," countered Eyer.

"After [Prowel] was outed, the harassment began," argued Kurt Miller, attorney for Wise Business Forms. "After he was outed, he was subject to derogatory comments like fag, faggot, princess and rosebud."

This may sound like a strange defense: Your Honor, the plaintiff wouldn't have been treated so terribly if he wasn't queer. But Miller, who declined to comment on the case beyond what was said in court, hammered away at the idea that "Congress did not intend to include sexual orientation as a protected class when it passed Title VII in 1964."

"What Mr. Prowel has attempted to prove is really a sexual orientation claim," Miller maintained. "It's going to open a Pandora's box."

Of course, as the judges pointed out, it doesn't have to be an either/or situation. "All the evidence of sexual orientation [harassment] doesn't mean there wasn't sex discrimination," Hardiman noted.

Many women's groups say that's an essential point.

"Every women's group we talked to understood right away that this was their fight," says Frietsche, of the Women's Law Project. "Hard-hatted women have it very hard. Women in nontraditional fields generally are subject to pervasive, sometimes violent gender discrimination. It takes the form Brian Prowel's took. In these nontraditional fields, it's not uncommon for women workers to be gay-baited."

Frietsche was co-author of a "friend of the court" brief filed on Prowel's behalf. The brief was signed by 21 women's-rights groups, representing women's trade organizations and advocacy agencies from California to Cleveland. (No such briefs have been filed in support of Wise.)

"Women who break into well-paying, historically male-dominated nontraditional occupations, whether in the blue-collar trades or in the professions, commonly encounter the stereotype that they are deviating from assigned gender roles," the brief reads. "Women experiencing sex discrimination involving such gender stereotyping need legal remedies in order to survive and thrive at work." A ruling in Prowel's favor could help shore up those remedies, the brief argues.

Gillian Thomas, of Legal Momentum, says that many of the clients she represents in discrimination suits are in "hypermasculinized" workplaces like heavy construction. Prowel's case is important to them, Thomas says, because it could reaffirm that discrimination on the basis of sexual stereotyping is illegal -- and that it must be teased out from sexual-orientation harassment. Otherwise, Thomas says, "Lesbians who get called dykes are going to be left without a remedy. It puts workers in this weird position."

So cases like Prowel's may come down to questions like this: When his coworkers tormented them, was their bigotry of the legal kind or not? Should we protect the rights of men who file their nails at their desks, but not of men who sleep with other men at home? And is it fair that a gay man could be discriminated against in Butler County, but not a short drive away in Pittsburgh?

On the national, state and local levels, efforts are underway to make discrimination on the basis of sexual orientation illegal. That could offer protection for gender non-conforming workers too, if their real or perceived sexual orientation clouds the issue.

Nationally, there have been attempts at extending Title VII-type protections to gays and lesbians since 1974. So far, those efforts have failed to pay off, but currently, there are two versions of an Employment Non-Discrimination Act (ENDA) before Congress, one of which includes transgender people and one which doesn't.

ENDA version HR 2015 seeks "to prohibit employment discrimination on the basis of sexual orientation or gender identity." Gender identity is later described in the bill as "the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth." HR 3685, however, does not include the "gender identity" piece -- it only protects lesbians, gays and bisexuals, not transgender people -- and was passed by the House of Representatives last November. Both bills make it against the law to discriminate in hiring or compensation decisions.

On the state level, House Bill 1400 has been in the state government committee since last summer. The bill would amend a 1955 act creating the Pennsylvania Human Relations Commission, extending the same protections that bill put forth against discrimination based on "race, color, religious creed, ancestry, age or national origin" to include sexual orientation and gender identity or expression.

The bill had garnered wide support -- at an hours-long hearing in Pittsburgh a year ago, the only objections to the bill were raised by Catholic groups, who feared it would force their adoption agencies to place children with gay families. But while the bill's prime sponsor, state Rep. Dan Frankel (D-Allegheny), says that 78 of his colleagues have signed on as cosponsors, the bill is still controversial to too many legislators.

"Many of them believe they could support it but they feel politically vulnerable," Frankel said at a Trans Town Hall meeting in Oakland on Nov. 13. He says that without legislation like HB 1400, Pennsylvania will be left behind, will cultivate a reputation as a cultural backwater. "There is an inexorable movement toward being tolerant in our country," he says.

One of HB 1400's greatest and most vocal supporters is currently serving as a city council member in Harrisburg, after having been fired -- legally -- from his job for being gay.

"It comes down to, if a woman wants to date a man but a man can't date a man, one behavior is acceptable and one's not, why? Because of a person's gender?" asks Dan Miller.

Miller was fired from his accounting job in 1990 by Don DeMuth after he was outed denouncing gay-bashing on television. Miller set up his own accounting practice, but in doing so ran afoul of a non-compete clause he signed when he was hired by DeMuth. DeMuth successfully sued him for $145,355. Today, Miller is an elected official and resident of Harrisburg, which prohibits anti-gay discrimination. But his firing took place in Camp Hill, just across a river and outside Harrisburg's protected zone.

"There was no recourse," Miller says.

Even so, Miller says he was lucky. He had family to borrow from and lean on, and a master's degree and certification in his field. Eventually, he was able to establish a thriving business and attain elected office.

Prowel may not have such resources, Miller says, which is one reason Miller applauds the lawsuit. "It takes a lot of courage. After this happened to me and was written about, I got a lot of calls from people who didn't know what do to. It was much more difficult, they were people that maybe worked at a 7-11 or a factory job."

Even if the state measure fails, there are efforts on the local level. In Allegheny County, freshman county Councilor Amanda Green, a labor attorney, introduced legislation in July that would bar discrimination on the basis of gender identity and expression in the county. All but three councilors have signed on as co-sponsors for the measure, which would make county ordinances consistent with Pittsburgh's protections.

"Which class of people do we want to protect next?" she asks. "Sexual orientation is next. Gender expression is second or third. We've seen it with the Title VII legislations -- group by group, we start talking about tolerance."

Her bill is in the government-reform committee, and could presumably be up for a vote after the budget is hammered out.

But not everybody embraces this trend. While they haven't officially weighed in on HB 1400, the Pennsylvania Chamber of Commerce has concerns about bills like it. The agency represents state business, and "[b]ringing in more regulation, more potential litigation doesn't help Pennsylvania in creating a business climate," says Gene Barr, vice president of government and public affairs. Legislating decency, he says, will be excessive and onerous.

"Most employers say, 'You can do the job, I don't care what color you are, what orientation you are,'" Barr says by telephone from Harrisburg. "You don't want to make it tougher for the good people. Pennsylvania has a reputation as a litigious state and we hate to expand that."

Wouldn't it help to have a statewide standard, rather than have standards varying from one community to the next?

"Our society needs regulation in certain cases," Barr acknowledges. But "We've gone too far in a lot of them. Clearly it's unfair to discriminate, but this would set up a new cause of actions. It puts us in a tough boat. There are obviously employers who discriminate improperly, but not a majority."

Employers are no doubt looking askance at another gender-discrimination suit recently filed in Western Pennsylvania. On Oct. 7, local comedian Gab Bonesso filed her own lawsuit against radio station B-94, alleging that Bonesso was denied an on-air position because she wasn't "girly" enough.

Bonesso referred all questions on the case to her attorney, Sam Cordes. Cordes says Bonesso's case and Prowel's have much in common: "This cuts across gender lines because what you're doing is punishing someone because their sex doesn't conform to expectations."

In Bonesso's case, however, the job requires her to conform to expectations -- playing the part of a somewhat ditzy female for radio listeners. Doesn't that give a station the right to seek out some personality types and reject others?

"That's the argument the defendant always makes," says Cordes. "During the '70s, there were a bunch of cases out of the airline industry hiring only women as flight attendants." The argument went that business fliers, who were then primarily men, wanted to look at women. But in any case, Cordes says, the issue is not whether Bonesso actually is the girly ditz personality the radio says they sought, but whether she can play one on the radio.

"Rush Limbaugh used to be a rock DJ," Cordes says. "Does it matter what the personality is? He's playing a role. [Bonesso] can play a girly girl on the air."

But skeptics worry employers will be treading a minefield if the law moves beyond more cut-and-dried categories like race, and begins regulating more abstract concepts like gender identity.

"There are a lot of restrictions on employers already," Barr says. "You can't cover a hundred percent of everything. You're going to have to trust employers to treat their employees right."

Frietsche, though, says that a successful outcome in the Prowel case will protect workers whose employers can't be trusted. "We're hoping the court will affirm the idea that gender stereotyping is illegal, and there are no special rules that exempt gay and lesbian employees."

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