Employee who was told she ‘dresses like a dyke’ advances sex stereotyping claim

By Joy Waltemath

By Lorene D. Park, J.D.

Refusing to dismiss Title VII and state-law sex discrimination claims brought based on a gender-stereotyping theory, a federal court in Pennsylvania found that she sufficiently alleged discrimination “because of sex” by claiming that her supervisor spent a year disparaging her appearance, telling her she dresses like a “dyke,” having her roll up her sleeve to show her “lesbian tattoo,” and telling others the employee is gay. The fact that the employee identifies as heterosexual did nothing to weaken the plausibility of her claim. The court also denied the employer’s motion as to the employee’s retaliation claim, which was based on her alleged constructive discharge (Ellingsworth v. Hartford Fire Ins. Co., March 22, 2017, Stengel, L.).

Harassed, perceived as gay. The employee was hired as an insurance customer service rep in 2012 and worked under a female supervisor who allegedly harassed her because of the way she dressed, her appearance, and her perceived sexual orientation. Though she is married to a man, the supervisor allegedly told the employee and her coworkers that the employee “dresses like a dyke” and has a “lesbian tattoo.” The supervisor also allegedly called her stupid, made fun of her clothing, and went so far as to tell other workers the employee is lesbian. The coworkers began to believe she is gay and she felt compelled to explain repeatedly that she is not a lesbian. As a result, her pre-existing depression and anxiety worsened.

Stereotyping and “because of sex” discrimination. Refusing to dismiss the employee’s subsequent Title VII discrimination claim, the court reviewed applicable Supreme Court and other authority and noted that there is “an increasingly broad view of Title VII’s ‘because of sex’ language” and that Title VII prohibits discrimination based on “employers’ subjectively held gender stereotypes.”

Here, the complaint presented a plausible claim that the employee was discriminated against “because of sex.” It clearly showed she did not fit her employer’s view of what it means to be a woman. Even though she identifies as heterosexual, she was repeatedly called “dyke” because of how she dressed and looked, was ridiculed for what her supervisor called a “lesbian tattoo,” and was put into a position of having to explain her sexuality to coworkers. This is precisely the sort of gender stereotyping prohibited by Title VII and Price Waterhouse, explained the court, and the fact that the employee is not gay did nothing to weaken the plausibility of her claim.

Retaliation claim also proceeds. The court also refused to dismiss the employee’s retaliation claim. Although the employer argued that she never engaged in protected activity because she complained of sexual orientation discrimination and that is not prohibited by Title VII, it was sufficient that she complained of mistreatment and harassment, which the court already held constituted gender stereotyping. Furthermore, the employee adequately alleged that she was constructively discharged due to intolerable conduct, which constituted an adverse employment action. And rounding out her retaliation claim, she sufficiently pleaded a causal connection. Even though her constructive discharge occurred approximately 10 months after her complaint, the same alleged harasser continued to supervise her and the workplace hostility continued during the intervening period. She was also threatened with termination during this period.

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