The Eleventh Circuit Wants Employers to Take Transgender Discrimination Seriously

A recent decision out of the Eleventh Circuit Court of Appeals, the federal appeals court that covers the states of Georgia, Alabama, and Florida, is a wake-up call to employers about the issue of discrimination of a transgender employee. The case, Chavez v. Credit Nation Auto Sales, LLC, --- Fed.Appx. ---- (2016), involves a transgender auto mechanic who was terminated for sleeping on the job, in violation of the company’s rules. The mechanic admitted sleeping on the job.   That set of facts would appear to present a good case for summary judgment in favor of the employer because it looks like the employer had a legitimate, nondiscriminatory reason for the discharge decision. The lower court seemed to think so, because it did grant summary judgment in favor of the employer.

On appeal, however, the Eleventh Circuit looked beyond the stated reason for discharge and took into consideration the facts and circumstances that occurred before the discharge decision. Thus, the Eleventh Circuit noted that the employee had never been disciplined until after she announced her gender transition to her employer. After that announcement, the Court noted that the employee presented evidence that she was subjected to heightened scrutiny at work and that the company did not follow its own progressive discipline policy in terminating her employment. The Court noted that the employee also offered evidence that the company’s upper management had made comments about other employees being uncomfortable with her transition, and that the employee might negatively impact the business. The company also told the mechanic that she could not wear a dress to and from work after the transition was complete. Based on all the evidence presented by the plaintiff, the Eleventh Circuit held that there were triable issues of facts as to whether the employer was motivated by a discriminatory intent and whether gender was a ”motivating factor” in the employee’s termination. Now this case can proceed to a jury trial.

What are the lessons to be learned from this decision? First: an employer must be consistent in the application of disciplinary rules, both among all employees, and toward a single employee throughout his or her employment. Second: Title VII’s prohibition of discrimination “on the basis of sex” encompasses a prohibition of discrimination—and harassment—against transgendered persons. Whether company management is comfortable with the idea of a transgendered employee or not, the reality is that an employer covered by Title VII (which means it has 15 or more employees) cannot discriminate against an employee because he or she is transgendered, nor may the company tolerate harassment of such an employee.