A recent case alleging gender and race discrimination out of Kentucky has some interesting facts. A black transgender male alleges he was harassed and treated differently than white, non-transgender employees. Specifically, he alleges that he was not allowed to use a men’s restroom close to his work station. While that might seem insignificant, it was the fact that he was then reprimanded and ultimately terminated for returning late from restroom breaks because of the distance he had to walk to use a restroom. He asserts that the discrimination was based on the fact that he did not conform to the gender stereotype of what a biological female should look and act like.
Claims against GE Appliances
The transgender employee brought these claims against his employer, GE Appliances. He also claimed that the company failed to respond to his complaints of harassment by a co-worker. However, they addressed complaints of harassment made by a white female employee. He claims that, after his supervisor found out he was transgender, he began receiving reprimands for issues that other employees did not.
Claims of harassment were allowed to proceed
Despite the fact that this employee did not present very specific allegations regarding the number of times he was verbally harassed or the specific comments that were made, he did allege that he was harassed by several employees, including his direct supervisor. From that, the court was willing to infer sufficient frequency to allow the harassment claim to proceed.
Transgender claims were also allowed to proceed
GE argued, of course, that Title VII did not protect against discrimination based on transgender status. However, the court cited Price Waterhouse v. Hopkins where the court held that gender discrimination under Title VII can extend to circumstances where an employee fails to conform to stereotypical gender norms. Simply because the label transgender or transsexual is involved is “not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.”
Sexual orientation and gender identity are not the same
Some people are confused about the difference between discrimination based on sexual orientation and gender identity. In the legal arena, sexual orientation refers to whether or not an individual is homosexual, heterosexual or bisexual. In other words, your sexual preference – gay, straight or bisexual. However, not everyone who is transgender is homosexual. There are many transgender individuals who consider themselves straight. For example, a transgender woman may have male partners. Essentially, transgender discrimination often has little to do with sexual orientation.
For transgender employees who believe they have been the victim of workplace discrimination, especially those who live in a state that does not have a specific law protecting them from such discrimination, it is very important to consult with an employment law attorney who is familiar with this area of the law, and can suggest possible theories to pursue, based on your situation.
If you feel you have been the victim of discrimination or retaliation, or if you have any questions regarding your employment rights, please contact Michel Allen & Sinor , either online or by calling us at (205) 265-1880.