For years, gender equality advocates have argued that Title VII‘s prohibition on sex discrimination in employment also prohibited discrimination on the basis of sexual orientation, because the latter is inherently sex discrimination, since it’s based on preconceived notions of how men and women should act.

The theory has generally been rejected by federal courts, which have refused to incorporate sexual orientation discrimination into Title VII. Worse, a number of courts have used the rejection of the sexual orientation claims as a de facto prohibition on all claims brought by gay plaintiffs, even where the facts clearly showed discrimination on the basis of sex and sexual orientation.

Last week the Third Circuit reversed that trend:

On Friday, the U.S. Court of Appeals for the Third Circuit issued a ruling in Prowel v. Wise Business Forms, 07-3997 (3d Cir. Aug. 28, 2009), which states clearly that a plaintiff can bring a claim of gender stereotyping sex discrimination under Title VII even if there is coexisting evidence of sexual orientation discrimination.  This ruling is an important victory for women’s rights advocates and will have an especially helpful impact on women in nontraditional employment, who frequently suffer not only gender stereotyping discrimination, but also discrimination on the basis of their real or perceived sexual orientation.

In discussing Mr. Prowel’s gender stereotyping discrimination claim, Judge Hardiman writing for the unanimous appeals court panel reasoned:

[The employer] argues persuasively that every case of sexual orientation discrimination cannot translate into a triable case of gender stereotyping discrimination, which would contradict Congress’s decision not to make sexual orientation discrimination cognizable under Title VII.  Nevertheless, [the employer] cannot persuasively argue that because Prowel is homosexual, he is precluded from bringing a gender stereotyping claim.  There is no basis in the statutory or case law to support the notion that an effeminate heterosexual man can bring a gender stereotyping claim while an effeminate homosexual man may not.  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.

Judge Hardiman quoted language from the famous gender stereotyping case of Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (plurality opinion): “We are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for ‘[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’”

The Women’s Law Project here in Philadelphia submitted an amicus brief in the case, available at their blog.

Thus, as a result of the ruling, employers in the Third Circuit can discriminate on the basis of sexual orientation, but not on the basis of gender stereotypes. If anyone out there knows how defendants could ever prove that in court, there’s a couple hundred employment discrimination defense lawyers in Philadelphia just dying to hear from you.