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See id at 575 sex stereotyping based on a persons

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Unformatted text preview: nough to encompass such a theory. The Supreme Court in Price Waterhouse focused principally on characteristics that were readily demonstrable in the workplace, such as the plaintiff's manner of walking and talking at work, as well as her work attire and her hairstyle. See id. at 235, 109 S.Ct. 1775. Later cases applying Price Waterhouse have interpreted it as applying where gender non-conformance is demonstrable through the plaintiff's appearance or behavior. See, e.g., Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Cir.2005) (stating that an individual may have a viable Title VII discrimination claim where the employer acted out of animus toward his or her "exhibition of behavior considered to be stereotypically inappropriate for their gender") (emphasis added); id. at 221 ("Generally speaking, one can fail to conform to gender stereotypes in two ways: (1) through behavior or (2) through appearance."); Smith, 378 F.3d at 573 (Price Waterhouse was concerned with protecting women "who failed to conform to social expectations concerning how a woman should look and behave"); Jespersen v. Harrah's Operating Co., 392 F.3d 1076, 1082 (9th Cir.2004); Weinstock v. Columbia Univ., 224 F.3d 33, 57 (2d Cir.2000). By contrast, the gender non-conforming behavior which Vickers claims supports his theory of sex stereotyping is not behavior observed at work or affecting his job performance. Vickers has made no argument that his appearance or mannerisms on the job were perceived as gender non-conforming in some way and provided the basis for the harassment he experienced. Rather, the harassment of which Vickers complains is more properly viewed as harassment based on Vickers' perceived homosexuality, rather than based on gender non-conformity. In considering Vickers' sex stereotyping argument, the Second Circuit's recent opinion in Dawson v. Bumble & Bumble, 398 F.3d at 211, is instructive. In Dawson, a female former employee of a hair salon and self-described lesbian attempted to bring a sex discrimination claim against her employer after she was terminated based on alleged gender stereotyping. Id. at 218. The plaintiff in that case complai...
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