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Transgender applicant, denied job after indicating birth sex on form, advances sex-stereotyping claim

By Kathleen Kapusta, J.D.

To deny the availability of a sex-stereotyping claim to a transgender individual would be to exclude that person from the Title VII protections laid out in Price Waterhouse, a federal court in Colorado observed, finding the EEOC plausibly alleged facts suggesting sex-based consideration played a role in a company’s decision not to hire a transgender job applicant. Although the court refused to dismiss the EEOC and intervening applicant’s Title VII sex-stereotyping claims, it would not weigh in on whether they plausibly alleged a claim of discrimination because of sex under Title VII (EEOC v. A&E Tire, Inc., September 5, 2018, Jackson, R.).

Meet the new manager. One day after the company posted an online ad for a manager, the applicant applied for the job. During his subsequent interview, he wore traditional male clothing and a goatee, and he and the interviewer, a company manager, got along well, connecting over their Midwestern roots. The manager purportedly told the applicant he had the job if he could pass a drug test and a criminal background check. During a tour of the facility, he even introduced the applicant as the new manager to any employees they met along the way.

I see you checked female. Before he left the facility, the applicant filled out a screening consent form authoring the background check. In the form, he provided his birth name, which is typically associated with the female sex, and checked a box indicating his sex was female. After he left the facility, he received a phone call from the manager, who purportedly said “I see on your drug test that you checked female.” When the applicant confirmed this, the manager allegedly said “Oh, that’s all I need” and hung up. A little less than a month later, the applicant learned that the position had been given to someone else.

Sex stereotyping and sex discrimination claims. He then filed a charge with the EEOC and after an unsuccessful conciliation attempt, the agency sued the company on the applicant’s behalf alleging sex discrimination in violation of Title VII. The applicant subsequently intervened in the lawsuit. Arguing that he was not a member of a protected class, the company moved to dismiss for failure to state a claim. The EEOC and applicant, however, contended that he experienced discrimination because his appearance—that of a stereotypical male—did not conform to social expectations of a person with his birth sex, female. They also asserted that Title VII’s prohibitions of discrimination “because of . . . sex” protect transgender individuals categorically.

Sex-stereotyping. In Price Waterhouse, the Supreme Court held that an employer cannot evaluate employees by “assuming or insisting that they matched the stereotype associated with their group,” the court here observed, noting that since Price Waterhouse, courts have recognized employment discrimination claims of transgender individuals as sex-stereotyping discrimination protected under Title VII. Subsequently, the Tenth Circuit, in its 2007 Etsitty v. Utah Transit Authority decision, held that although transgender individuals may not claim protection under Title VII solely based on their status as a transgender individual, Title VII protections can nonetheless extend to transgender individuals who are the subject of adverse employment decisions where their identity as male or female is improperly taken into account.

Not sole rationale for decision. Although the company argued that the EEOC and applicant did not put forward factual allegations supporting a sex-stereotyping discrimination claim, the court pointed out that Price Waterhouse rejected an approach whereby the plaintiff would need to show the employment decision was made “solely because of” the plaintiff’s sex or make the plaintiff identify the precise role legitimate and illegitimate motivations played in an employer’s decision. Here, the EEOC and applicant alleged that the manager and applicant got along well in the interview and the applicant was offered the job contingent on pre-employment testing. After he left, they alleged, the manager called him, asked about the background check form indicating his sex was female, and then ended the call when the applicant confirmed this. The company, they claimed, then accepted an application from a different applicant, interviewed this other applicant, and hired him.

One follow-up question about “sex.” The EEOC and applicant alleged that the manager asked one follow-up question between the informal employment offer and the decision not to hire the applicant, and this question concerned his sex, the court observed, finding these alleged facts permitted a reasonable inference that his traits, behavior, or appearance at the interview, which did not conform to the stereotypical expectations of the sex he indicated on his background check form, affected the manager’s decision. While the company contended that the logical connection between the manager’s “innocent inquiry” and the conclusion that this inquiry played a role in the hiring decision was “nothing more than surmise,” the court explained that “at the motion to dismiss stage, plaintiffs have stated a plausible claim, and defendant will have ample opportunity to contest the motivations underlying the inquiry.”

Not about harassment. And while the company also argued that the EEOC and applicant’s factual allegations were bare, the issue in Title VII, said the court, is whether the employment decision was based on sex, not how much harassment the plaintiff experienced. “While the second question may be useful in proving the first, it’s not dispositive here.” As to the company’s assertion that the applicant only alleged he is a transgender man to support his claim, the court found that in resolving this motion, it “need not ignore common sense.” The applicant did not conform to the sex-based expectations of a person born a woman; the interviewer wouldn’t have called him in confusion about the sex he indicated on his background check form if he did. Perhaps, said the court, the manager did not take the applicant’s gender nonconformance into account when deciding not to hire him but, at the motion to dismiss stage, the EEOC and applicant stated a plausible claim.