By: Laura Segal*
June 19, 2014
There is currently no federal protection against workplace harassment that is motivated by an individual’s sexual orientation. However, federal law does prohibit harassment that is based solely on a victim’s nonconformity with gender stereotypes. In many cases, harassment based on both gender nonconformity and sexual orientation is present. Consequently, defense attorneys often claim that a plaintiff is “bootstrapping” a gender-stereotyping claim on what is really lawful harassment primarily motivated by the individual’s sexual orientation and, therefore, the claim should be dismissed. However, if the Employment Non-Discrimination Act (hereinafter “ENDA”) is passed by Congress and signed into law, then harassment based on sexual orientation will be prohibited under federal law. In turn, defense attorneys in gender-stereotyping cases will no longer be able to assert this bootstrapping defense.
II. Background of Gender-Stereotyping
To better understand what a gender-stereotyping claim entails, background on the federal law that prohibits this type of harassment and the Third Circuit’s interpretation of the law is essential. Title VII is the employment discrimination statute that prohibits discrimination “against any individual . . . because of sex.” Acts of workplace sexual harassment that create a "hostile work environment" are considered a form of sex discrimination under this statute. In order to prevail on a hostile work environment claim against an employer in the Third Circuit, a plaintiff must meet the following five requirements: (1) the employee suffered discrimination because of sex; (2) the discrimination was “pervasive and regular;” (3) some negative impact resulted from the discrimination; (4) the conduct would affect a reasonable person in a similar position; and (5) the employer has respondeat superior liability.
III. Gender Stereotyping Caselaw Development
Notably, in 1989, the United States Supreme Court ruled in the landmark case of Price Waterhouse v. Hopkins that harassment based on gender-stereotyping was “because of sex,” and, therefore protected under Title VII. Additionally, this Title VII protection is not limited to harassment by members of the opposite sex.
The Third Circuit established that a Title VII gender-stereotyping claim should survive summary judgment if a reasonable jury could conclude that the plaintiff’s gender nonconformity was a motivating factor for his or her harassment, even if the harassment also targeted the victim’s sexual orientation. For example, in Prowel v. Wise Business Forms, a homosexual male who admittedly talked in a high voice, was very well groomed, sat the way “a women would sit,” and walked in an effeminate manner, was the target of harassment by his co-workers. Acts of harassment directed toward the plaintiff’s inability to conform with gender stereotypes included: a female coworker frequently calling the plaintiff “princess”; other coworkers made comments about his mannerisms (including the way he walked and sat with his legs crossed); calling him derogatory names including “Rosebud” and “faggot”; and leaving a pink-feathered, light up tiara with a pack of lubricant jelly on his nail encoder equipment. Although there was also evidence the plaintiff was harassed due to his sexual orientation, the Third Circuit found that since there was sufficient evidence that a reasonable jury could conclude harassment occurred “because of sex” based on his nonconformity with traditional gender stereotypes, the claim should survive summary judgment.
In Prowel, the defendant unsuccessfully argued that the harassment the plaintiff endured was primarily motivated by his sexual orientation, rather than his inability to conform to gender stereotypes. As previously mentioned, the argument that a plaintiff is trying to “bootstrap” a non-cognizable sexual orientation harassment claim as a cognizable gender-stereotyping harassment claim is common in gender-stereotyping harassment cases. However, these hair-splitting “bootstrapping” arguments would become anachronistic if the currently proposed legislation, ENDA, is passed and signed into law.
IV. ENDA is a Game-Changer
In order to provide basic protections against workplace discrimination on the basis of sexual orientation or gender identity, ENDA's passage is key. This bill closely mirrors existing civil rights laws, such as Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. Specifically, ENDA was first introduced in 1994. Yet, it was not until last year that the U.S. Senate passed ENDA with bipartisan support. Still, ENDA is not law until it is passed by the U.S. House of Representatives—of which there is a very slim chance—and then signed by the President. Nonetheless, ENDA advocacy groups are one step closer to obtaining federal prohibition of workplace harassment based on sexual orientation, and thereby, making the "bootstrapping" argument a vestige of the past.
*Laura Segal is a May 2015 J.D. candidate at Rutgers School of Law—Camden. She may be contacted by email at firstname.lastname@example.org.
 42 U.S.C. § 2000e-2(a)(1) (2012).
 Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65 (1986).
 Kunin v. Sears Roebuck & Co., 175 F.3d 289, 293 (3d Cir. 1999) (citing Andrews v. City of Phila., 895 F.2d 1469, 1482 (3d Cir. 1990)).
 Price Waterhouse v. Hopkins, 490 U.S. 228, 241 (1989).
 See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998).
 See Prowel v. Wise Business Forms, 579 F.3d 285, 290 (3d Cir. 2009).
 Id. at 287.
 Id. at 292.
 Id. at 289.
 Employment Non-Discrimination Act, Issue: Federal Advocacy, HUMAN RIGHTS CAMPAIGN, http://www.hrc.org/laws-and-legislation/federal-legislation/employment-n... (last visited Jun. 14, 2014).
 Employment Non-Discrimination Act: Legislative Timeline, Resources, HUMAN RIGHTS CAMPAIGN, http://www.hrc.org/resources/entry/employment-non-discrimination-act-leg... (last visited Jun. 14 2014).
 Pass ENDA Now, HUMAN RIGHTS CAMPAIGN, http://www.hrc.org/campaigns/employment-non-discrimination-act (last visited May 28, 2014); see also Employment Non-Discrimination Act of 2013, S. 815, 113th Cong. (2013) (passage with 52 Democrats, 10 Republicans, and 2 Independents voting "yea").
 Pass ENDA Now, supra note 14.