Employment Discrimination Lawyers Best Answer: What if I am harassed for acting too feminine/masculine? What do I do if my co-workers tease me for being based on gender identity? What do I do if my employer terminates me for acting too much like a girl?
Unfortunately, sometimes employees are teased by co-workers. While it’s not very nice, can such teasing be illegal? When it is based on nonconformity to gender stereotypes, it can. Sexual orientation is not yet recognized as a protected class by federal law or the law of Ohio. As such, a homosexual individual in Ohio has no legal recourse for discrimination based on sexual orientation. However, an employee may bring a claim against an employer for discrimination for nonconforming to gender stereotypes.
Title VII of the Civil Rights Act of 1964 states, “[i]t shall be an unlawful employment practice for an employer . . . to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of . . . [his] . . . sex . . . .” The Ohio Revised Code is similar. Under these statutes, discrimination and harassment based on sex is a violation of law. In Caparais v. Ford Motor Company, an Ohio federal court judge recently reaffirmed that teasing can be a basis for civil liability when it is based on gender stereotypes.
Robert Caparanis, filed a claim against his former employer, Ford Motor Company for hostile work environment because of sex, discrimination, and retaliation. Robert worked on the assembly line at Ford. Most of his co-workers were masculine men, and Robert just did not fit in. He did not drink, do drugs, or swear around women. While his co-workers enjoyed hunting and fishing, Robert preferred golf, a sport one defendant called a “sissy’s game.” He wore clothes that “look[ed] like what girls would wear.” His co-workers said he “did the queerest things,” such as putting a fake baby under his apron while pretending to be pregnant.
Robert’s co-workers consistently teased him. One sent him two text messages with inappropriate homosexual jokes. They also make teasing comments about him being a homosexual. Once they put a male personal ad, Victoria Secret catalogues, and women’s fashion magazines in Robert’s work area. Robert filed several complaints with his superior and labor relations. The complaints were never properly addressed. After one complaint, his supervisor responded by telling him it’s not his problem.
Robert was eventually terminated for putting a black bottle of urine in a barrel of dirty gloves. Sure, this is pretty odd behavior, but it’s not clear whether it warrants termination considering that Ford had no rule for such behavior, and another employee urinated on company property without being terminated. Robert argued it was pretext, and he was actually terminated for sex discrimination and retaliation for complaining.
Ford tried to have Robert’s claim dismissed for failure to state a claim. The judge denied this request. The judge held that Robert presented enough facts for a jury to be able to determine that he was discriminated against because of sex, harassed because of sex, and ultimately terminated because he did not conform to the typical male stereotype.
Ford also tried to avoid liability by claiming that it could not be held accountable for the acts of Robert’s co-workers. The judge rejected this argument:
Though Ford is correct that it is not automatically vicariously liable under Title VII for sexual harassment by Defendants Kemplin and Hescox (since neither of them were supervisors with the ability to take tangible employment actions), that fact is irrelevant here; Ford can still be held liable for a hostile work environment. Where an employer knows or should have known of the harassment in the work place and fails to take appropriate remedial action, the employer is liable for harassment done by co-workers.
To be successful on such a claim, a plaintiff needs to show that he or she fails to act or identify with his or her gender; that others in the workplace can observe any nonconformities; and plaintiff was treated differently or harassed because he or she did not conform with gender stereotypes or retaliated against for reporting this differential treatment.
In a similar case, Jason Koran brought a claim after being terminated from the Ohio Bell Telephone Company. Jason was a homosexual who was married to his lover. Jason took his husband’s last name. Taking a husband’s last name generally considered a feminine practice, so Jason was perceived to be not in conformity with masculine stereotypes. One of Jason’s superiors, who opposed same-sex marriages, refused to call him by his married name and took a series of adverse actions against him. The judge permitted the claim to go forward because Jason presented sufficient evidence to show that he conspicuously did not conform to gender stereotypes.
While the law has yet to recognize sexual orientation as a protected class, homosexual individuals may have a claim for discrimination if they can show it was because they do not act in conformity with gender stereotypes. If you feel that your employer is discriminating against you based on nonconformity to your gender stereotype, you may have a legal claim. To find out if you have a legal claim for sex discrimination, your best option is to call the right attorney at 866-797-6040 to schedule a free and confidential consultation. At the Spitz law firm, you will meet with a sex discrimination attorney, who will be able to tell you what your legal rights are and the best way to protect them.
The materials available at the top of this page and at this gender discrimination, sexual harassment, and employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking “what should I do …”, “I’m being sexually harassed …” “my supervisor grabbed my…”, “my boss is touching…” or “how do I …”, your best course is to contact an Ohio sexual harassment attorney/hostile work environment lawyer to obtain advice with respect to sexual harrassment/hostile work environment questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this employment law website are the opinions of the individual lawyer and may not reflect the opinions of the Spitz law firm, Brian Spitz, or any individual attorney.