Title VII of the Civil Rights Act does not protect employees from discrimination based on sexual orientation. But guess what? According to the Third Circuit Court of Appeals, which covers employment discrimination claims in the State of New Jersey, the law does cover gender stereotyping because of an individual's effeminacy. An effeminate gay man who claimed he was discriminated against on the basis that he did not conform to a typical male stereotype at his workplace will now have his case heard by a jury.
In September 2007, a Federal Judge dismissed a male employee's claims. The Judge stated that the behavior the employee complained of was "reprehensible,", but he was not discriminated because of his gender but because of his sexual preference.
The United States Court of Appeals reversed and wrote that it is for a jury to decide if the employee was discriminated against "because of sex." This case is now binding on claims brought in the State of New Jersey under federal employment laws.
The Court of Appeals relied on a 1989 case in which the Supreme Court held that sex discrimination laws protect women who fail to conform to a traditionally feminine demeanor and appearance.
The lawyer representing the employee in this case alleged that he was often called "Rosebud" and "Princess". The employment lawyer also alleged that other co-workers left personal lubricant on his workstation. The employment lawyer also alleged that the employee was harassed for walking effeminately and talking with a high voice.
The Appellate court wrote that it is possible that the harassment the employee alleges was because of his sexual orientation, not his effeminacy . . nevertheless, this does not vitiate the possibility that the employee was also harassed for his failure to conform to gender stereotypes."
The employment lawyer that argued the employee's case was quoted as stating that in the past district courts often dismissed these types of complaint at summary judgment.
The case will now go back to the district court and a trial date will be set.
