While not expressly dealing with this question, the Eastern District court of Pennsylvania (which includes Philadelphia) has addressed the effect of perceived homosexuality on a claim of sexual harassment. Asking your co-worker about his/her sexual orientation could be construed as implicating a homosexual perception of that co-worker’s sexual orientation because it questions that co-worker’s presumed heterosexuality. Onacle v. Sundwoner Offshore Services, Inc., 118 S.Ct. 998, 1002-03 (1998) (the Supreme Court asserts this presumption by explaining the relative ease and acceptability of assuming an opposite sex harassment scenario is implicitly based on sex). Asking about your co-workers’ sexual orientations in and of itself is not enough to create liability for sexual harassment. However, the allegation of the existence of a perception of homosexuality based on your questioning will overcome a motion to dismiss in a wider sexual harassment claim because it adequately asserts that an unwelcomed harassment’s motivation was sex-based.
Sexual harassment is a form of sex discrimination which the U.S. Supreme Court has extended to same sex scenarios where the harassee is harassed for not complying with gender stereotypes. Price Waterhouse v. Hopkins, 109 S.Ct. 1775, 1790-91 (1989). This has become one of three bases the 3rd circuit now recognizes for successful sexual harassment claims (“1) alleged harasser sexually desired the plaintiff 2) alleged harasser was expressing general hostility to one gender in the workplace 3) the alleged harasser was punishing the plaintiff for not complying with gender stereotypes”). Bibbly v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 262-63 (3rd Cir. 2001). The Third Circuit has denied the application of Title VII claims based on sexual orientation because congress has only established that Title VII protects individuals from discrimination based on race, sex, and national origin. Id. 261. However, the Supreme Court explained in Price, that harassment based on gender-nonconformity, demonstrated by the harassee’s outward physical behavior in the work-place, is discrimination based on sex. Price, 109 S.Ct. 1775, 1782; Vickers v. Fairfield Medical Center, 453 F.3d 757, 763 (6th Cir. 2006).
While arguments have been unsuccessfully made that one’s sexual orientation is a stereotype attached to gender (i.e. arguing it is a stereotype that men are attracted to women) courts have refused to allow such a broad interpretation of Price to maintain the differentiation between harassment based on sex (which Title VII does allow) and harassment based on sexual orientation (which Title VII does not expressly allow or disallow). Vickers, 453 F.3d 757, 763. However, the Eastern District has made clear that an allegation that the harasser perceived the harassee as gay or lesbian can overcome a motion to dismiss because such an allegation implicates the potential for there having been gender non-conforming behavior. E.E.O.C. v. Turkey Hill Dairy, Inc., 2007 WL 2407095 at 4-5 (E.D. Pa. Aug. 8, 2007). While potentially a fallacy because it assumes all gay men and women are gender non-conforming, this clarifies what might be permissible and impermissible conduct. In E.E.O.C. v. Turkey Hill Dairy, the plaintiff, who denied being gay, had faced 17 months of daily harassment and had eventually been fired, alleged sufficient facts to claim the harasser sexually desired him (the defendant had blown kisses at him and had whistled flirtatiously at him) and that the defendant was punishing the plaintiff for not complying to gender stereotypes (the defendant had called him a whore and a bitch). Id. 2-4. In addition to having found that these facts were sufficient to overcome a motion to dismiss, the court went on to say that alleging harassment for perceived homosexuality was also sufficient to overcome a motion to dismiss. Id. 4. This was because, “[such allegations] can also be construed to support a claim based on [a plaintiff] not conforming to gender stereotypes.” Id. Perceived homosexuality can imply the possibility of the existence of other behavior that is non-gender conforming.