Earlier this year, proponents of a bill to make transgender (or gender identity and expression) a protected category failed in their efforts to get that category covered under the state’s anti-discrimination laws.
A new United States District Court case this week may provide proponents with an example of a case that, in their view, may have come out differently if "transgender" was a protected category. (For a glossary of such terms, check out this post.)
In Yvonne Morales f/k/a Javier Morales v. ATP Health & Beauty Care, Inc. , Judge Thompson granted the employer’s motion for summary judgment this week. In the case, because Title VII does not protect "transgender" employees, the employee claimed that she was harassed because of her gender. According to the court, she used a rarely invoked theory that she was being discriminated against for failure to comply with socially accepted gender roles.
(Admittedly, there is some dispute over the proper pronoun to use; the court uses "she", while the employer uses "he" in its papers.)
Morales made several allegations (caution to readers: these are only allegations not facts): Morales claimed that a shift supervisor regularly screamed at her for “the smallest reasons” and made several inappropriate comments to her.
The Court goes on to summarize some of the other allegations:
Morales states that [the shift supervisor] (1) told her that she had “a big p***y” on a day when she wore tight jeans to work; (2) asked her which of the men with whom the supervisor was standing was most attractive to her; (3) asked her if her ovaries hurt as she was holding her stomach while walking to the restroom; (4) told Morales that “[his] d**is curved” and “if [he sticks] it up [Morales’ a**, [he] will take sh** out of it”; and (5) told Morales that she would not “fool around” with Morales as a female but probably would have done so when she was a boy.
While the court found that some of the above described acts could make Morales fit within the protected category, the court also found she did not produce sufficient evidence "as to whether the harassment she suffered solely on account of her failure to conform to gender stereotypes was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment."
The court’s 34-page decision is obviously more detailed than this and is worth a read for any employer dealing with these issues. Notably, for instance, the court found that the employee had significant attendance issues which eventually warranted her termination. You can also view the employer’s motion for summary judgment papers here, and the brief filed in opposition here.
For employers, this case reminds us that well-documented termination decisions are more likely to be upheld by the court, even in the face of other allegations. But the facts as alleged (and, if believed) portray a work environment that may not have been welcoming to all employees. And so, while the employer has won the case and while the employer’s conduct may not be illegal, it has no doubt spent a significant amount on attorneys fees, time and effort.
Having effective human resource personnel involved and useful supervisor training can help reduce the risk of such suits in the future. And certainly having a better understanding of transgender issues — such as the program described in Nolo’s Employment Law Blog — will help reduce potential issues in the future as well.
Would the outcome in this case be different if gender identity were a protected category? Tough to say because the employer presented a strong case that the employee’s attendance issues were significant. But if the legislature acts next year on such a bill, there will certainly be more cases like this to follow.