Monthly Archives: August 2009

Victory for Victims of Sex Discrimination Based on Gender Stereotyping—Even if They’re Gay

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.

The Prowel case involved a western Pennsylvania employee who was continuously harassed and finally terminated from his factory job.  The record showed that Mr. Prowel did not conform to male gender stereotypes, and that much of the harassment he endured from his coworkers focused on his effeminacy; some of the harassment, however, focused on his perceived homosexuality.  The trial court dismissed Mr. Prowel’s Title VII sex discrimination claim, holding that homosexuality is not a protected classification under federal anti-discrimination laws, and that Mr. Prowel’s sex discrimination claim was in reality nothing but an artfully-pled sexual orientation claim in disguise.

On appeal, the Women’s Law Project and Legal Momentum submitted a brief (PDF) on behalf of 21 organizations representing women in non-traditional employment, which argued that if sex discrimination claims fail anytime the record also contains evidence of sexual orientation discrimination, Title VII would be eviscerated as to the very women who are most victimized in the workplace:  women in nontraditional employment.  Our brief surveyed the developing law in this field in this and the other circuits, showing that the district court erred by adopting reasoning that could seriously weaken Title VII and remove an entire class of people from its protection against sex discrimination.

A three-judge panel of the 3d circuit, made up of Judges Fisher, Chagares and Hardiman, vacated the district court judgment dismissing the plaintiff’s complaint and remanded the case for further proceedings.  The court, however, affirmed the dismissal of Mr. Prowel’s religious discrimination claim, concluding that this claim was just an artful way of pleading sexual orientation discrimination, against which there is presently no legal protection.

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.’”

Congratulations to Brian Prowel and to his counsel, Katie Eyer, Corey Davis and Tim O’Brien.

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Filed under Employment, Equality

Celebrating Suffrage, But There’s More to Be Done

This week, we celebrated Women’s Equality Day which marked the 89th anniversary of the passage of the 19th Amendment to the U.S. Constitution, extending the right to vote to include women.

Suffragists worked—and worked hard—for over seven decades to fight for women’s voting rights. They picketed the White House, silently holding signs that read “Mr. President, how long will women wait for liberty?” and “We shall fight for the things which we have always carried nearest our hearts–for democracy, for the right of those who submit to authority to have a voice in their own governments,” a quote from a speech that Woodrow Wilson had given himself.

President Wilson ignored the picketers, who were assaulted, both physically and verbally, and were arrested by the police on minor charges. To advocate for their cause, the women went on hunger strikes and were subjected to sleep deprivation in jail. Some were given worm-infested bread to eat while imprisoned, or force fed through a tube if they were on a hunger strike. They endured brutal beatings by police officers until public opinion turned and the president finally came forward to support women’s suffrage.

Too often, the struggle for women’s voting rights is framed as something that was “given” to women or something that suffragists vaguely “fought” for, without an examination or acknowledgement of the bravery and courage these women had in facing such obstacles. Today, we say thank you to those women, who stood strong in the face of true adversity to help ensure that their daughters and granddaughters would live in a more equal world.

And we do live in a more equal world, but there is still work to be done. Fundamental rights are constantly under attack, like the right to control your reproductive life. Or the right not to be evicted, fired or harassed simply because you’re lesbian, gay, bisexual or transgender. Or the right to play sports and receive equal treatment and opportunity as your male peers. Or the right to be free from violence in your own home. Or the right to make the same wages as your male colleague who does the same work as you.

These rights will not just be “given” to us; we will have to continue working hard for many years, like our foremothers did, to win them. Will you help us?

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Filed under Equality

Letter to the Editor: Sexual Assault Charges Against Ben Roethlisberger

The western Pennsylvania office of the Women’s Law Project, along with Pittsburgh Action Against Rape, sent the following letter to the editor of the Pittsburgh Post-Gazette regarding the paper’s treatment of the sexual assault charges against Steelers quarterback Ben Roethlisberger. The Post-Gazette did not print the letter, so we are reproducing it here in its entirety.

To the Editor:

First let’s state the obvious:  neither we nor Gene Collier know what, if anything, happened in Nevada involving Ben Roethlisberger (“Steelers now have plenty to overcome”).  It is reckless and unfair to try to guess based on untrue stereotypes about sexual assault.

Mr. Collier opines about the “highly problematic distance of some 371 days between the alleged rape and the formal filing of a civil lawsuit.”  In fact, it is extremely common for sexual assault survivors to delay or avoid making a criminal complaint or taking legal action against their attackers. They may be too traumatized to deal with the assault, fear that no one will support them, or realize that they will be subjected to vicious public attacks on their character or motives.

Mr. Collier can’t believe that Mr. Roethlisberger could have assaulted the plaintiff because he’s “polite, practiced at the art of overarching humility,” and “young women are magnetized to him in clumps, so it doesn’t exactly follow that he would have to coerce one.”  But rape is not about sex. It is about power and control. Highly successful and polite men can commit sexual assault.

Let’s not fall back on damaging and dangerous myths about sexual assault and make it even harder than it already is for sexual assault victims to come forward.

Susan Frietsche, Senior Staff Attorney, Women’s Law Project

Laura Randolph, Executive Director, Pittsburgh Action Against Rape

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Filed under Rape, Sports

Women’s Rights in the Spotlight

This week the New York Times Magazine focuses on “Saving the World’s Women.” An essay by Nicholas D. Kristof and Sheryl WuDunn, titled “The Women’s Crusade,” is at the center of an issue that explores women’s causes around the world.

Kristof and WuDunn make a strong case for the need to focus international efforts on helping women:

Yet if the injustices that women in poor countries suffer are of paramount importance, in an economic and geopolitical sense the opportunity they represent is even greater. “Women hold up half the sky,” in the words of a Chinese saying, yet that’s mostly an aspiration: in a large slice of the world, girls are uneducated and women marginalized, and it’s not an accident that those same countries are disproportionately mired in poverty and riven by fundamentalism and chaos.

Reinforcing this message, UK Prime Minister Gordon Brown and Liberian President Ellen Johnson Sirleaf have co-authored an article for the Huffington Post, “Taking Women’s Rights Seriously.” Both leaders put forth concrete goals and promises, including Brown’s renewed commitment to addressing women’s issues through the United Nations:

The UN has a leading role, yet its response has been too fragmented and has lacked coherence. In 2006 a High Level Panel recommended a new, powerful agency that could empower women throughout the world.

…It must be urgently established with strong, high-level leadership to support national efforts and strengthen co-ordination of the UN’s collective resolve to improve the lives of girls and women.

As evidence of Britain’s commitment we will at least double the UK’s core funding for the UN’s work on women’s equality through this new body, once established. We will also work tirelessly over the next three weeks to help make the agency a reality by the end of this current session of the General Assembly.

Both the New York Times Magazine and the article by Brown and Sirleaf reference an upcoming book by Kristof and WuDunn, “Half the Sky: Turning Oppression into Opportunity for Women Worldwide.”

We may be about to see a dramatic change in the level of attention paid to vital women’s issues around the world. As girls and women around the world struggle to get the medical care, education, political rights, protection, and respect that they deserve, let us hope that we do see this change. It would not come a moment too soon.

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Filed under Education, Equality, Girls, Government, The New York Times, Women's health

Guttmacher Details State Legislative Trends at Midyear

Recently, the Guttmacher Institute released its analysis of state legislative trends at the midway point of 2009. According to the Institute, “875 measures related to reproductive health were introduced in the 50 states and DC, and a total of 33 laws were enacted in 27 states.”

So far in 2009, Guttmacher has noticed three trends in legislation at the state level. The first is an emphasis on comprehensive sex education. After gains in three state legislatures this year, 17 states now promote comprehensive sex education in schools. While this is still a long way from where it should be, it is encouraging progress.

Guttmacher notes that state budgets have come under intense scrutiny this year, and money spent on reproductive health is inevitably under the microscope as well. The results of state actions on this money have been a mixed bag so far this year:

In California, Iowa and Minnesota reproductive health advocates appear to have been able to deflect proposed spending reductions, while in Massachusetts, Michigan, Montana and Washington programs are likely to be cut substantially.

And finally, anti-choice activists are still trying to get “fetal personhood” laws on the books in several states. Guttmacher notes:

Abortion opponents have used two distinct strategies to establish fetal personhood this year. The first is patterned after a ballot initiative defeated in Colorado in November 2008 that would have amended the state constitution to confer personhood on a fetus at the moment of conception, setting the stage to ban abortion and even most contraception. Legislators introduced similar measures in six states this year; although none was enacted, bills were approved by one legislative chamber in Montana and North Dakota. The second approach builds on a 2005 South Dakota law that requires a provider to inform a woman, as part of state-mandated abortion counseling, that the procedure “will terminate the life of a whole, separate, unique, living human being.” Legislators in four states introduced similar measures this year, and one new law was enacted in North Dakota.

While it’s encouraging that legislatures are rejecting attempts to define personhood at the moment of conception, it’s disheartening that women in North and South Dakota are subjected to such biased, inaccurate counseling when seeking abortion services. Thanks to the Guttmacher Institute for keeping an eye on trends in reproductive health legislation.

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Filed under Abortion, Contraception, Government, Reproductive Rights, Women's health

American Public Still Overwhelmingly Pro-choice, Despite Earlier Reports

A recent Gallup poll reveals that the majority of Americans – 78% – believe that abortion should be legal. The percentage of people living in the United States who think abortion should be illegal in all circumstances is only 18%, smaller than the percentage of those who think it should be legal in all circumstances (21%) or under certain circumstances (57%).

This news doesn’t surprise pro-choice advocates, who already know that most Americans believe that the decision to have an abortion should be left up to the woman, with consultation from a doctor. And this is consistent with the public’s opinion on the issue over the past twenty years. However, a May poll from Gallup showed that 51% of Americans considered themselves “pro-life,” compared to 42% who said they were pro-choice. As Gallup explains:

Those surveys were conducted in the wake of considerable news coverage over the University of Notre Dame’s decision to invite President Barack Obama to deliver the 2009 commencement address, an event that may have raised Americans’ awareness of Obama’s pro-choice views.

It may also have to do with people defining the term “pro-life” differently. Many people who would not have an abortion themselves but believe that the choice should not be taken away from other women call themselves “pro-life.” In any event, these poll numbers indicate that the majority of Americans still generally believe that the decision whether to have an abortion should be left up to a woman in consultation with her doctor – a very heartening thought.

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Filed under Abortion, Reproductive Rights, Women's health

In Iraq, Female Soldiers Prove Old Assumptions Wrong

The New York Times series “Women at Arms” explores the expanding role of women in the military and the extent to which, especially in Iraq, women have become indispensible in all types of operations, showing along the way that they are up to all the same challenges as men.

The article “GI Jane Quietly Breaks the Combat Barrier” introduced the series. Through interviews and review of statistics, the article tells the story of female soldiers in Iraq who have taken on increasingly dangerous jobs because they were needed there. The women have excelled in those jobs. As the article explains:

Women are barred from joining combat branches like the infantry, armor, Special Forces and most field artillery units and from doing support jobs while living with those smaller units. Women can lead some male troops into combat as officers, but they cannot serve with them in battle.

Yet, over and over, in Iraq and Afghanistan, Army commanders have resorted to bureaucratic trickery when they needed more soldiers for crucial jobs, like bomb disposal and intelligence. On paper, for instance, women have been “attached” to a combat unit rather than “assigned.”

Even some staunch feminists have long been inclined to accept military restrictions on female soldiers’ careers. Whether this is because of the widely held, deeply ingrained beliefs that women are simply not suited for war the way men are, or because their pacifism informs their opposition to any sort of combat, the New York Times articles make it clear that women can and do excel at any army job.

Another article, “Living and Fighting Amongst Men, and Fitting In,” addresses – and allays – the other concern about women in the military, namely that their presence would be too much of a disruption for the fighting men. The article quotes Brigadier General Heidi V. Brown, who says, “There was a lot of debate over where women should be. Here we are six years later, and you don’t hear about it. You shouldn’t hear about it.”

Both articles are fascinating and worth reading in full, and we eagerly await the next installment. Their message is strong and unmistakable: there is no reason to restrict the role of women in the military.


Filed under Equality, Government, Military