8th Circuit Rejects Transgender Discrimination Claim Under Title VII

No, it's not quite what you may think from reading the headline.  Although the 8th Circuit did affirm a grant of summary judgment to the employer in a case in which a job applicant alleged discrimination based on gender identity in violation of Title VII's ban on sex discrimination in employment, it was not because the Circuit sharply departed from the growing body of precedent accepting such claims.  Rather, the court found in Hunter v. United Parcel Service, 2012 Westlaw 4052503 (September 17, 2012), that the plaintiff failed to show that the employer denied the job due to the applicant's gender identity or sexual orientation.  (There was a supplementary state law sexual orientation discrimination claim that was also rejected as part of the summary judgment in this case.)

District Judge Catherine D. Perry (Chief Judge of the U.S. District Court for Minnesota) joined with two 8th Circuit judges to make up the 3-judge panel, and wrote the opinion for the court.  "Gage Hunter was born female, but has identified as male since he was a child," she wrote.  Hunter first applied to UPS in 2006, presenting as female and using the birth name of Jessica Axt.  Hunter was offered a job, but ended up declining it to accept employment elsewhere.  Hunter applied against in 2008, still under the name Jessica Axt, but by then had begun to dress and groom as male.  Hunter had not yet begun hormone therapy to transition, however.  Hunter was receiving social security disability benefits at that time, based on a diagnosis of psychological disorder that precluded full-time work.  The position for which Hunter applied was a part-timer package handler position.

Hunter was actually solicited to apply, as UPS regularly contacts previous job applicants when they have new openings.  Hunter showed up for a tour of the facility and an interview, and after some confusion about the on-line application form, was finally scheduled for an interview on April 23, 2008.  As described by Judge Perry: "Trendle interviewed Hunter for eight minutes.  In addition to the binder used to bind his breasts, Hunter wore clothing he had purchased from the men's department: a brown long sleeved, button down shirt, brown pants, and dress shoes.  Hunter also had a short haircut."  During the interview, Hunter said he could only work part time due to his social security disability award, and that he was not interested in the health benefits associated with the job because he was already receiving social security disability benefits. 

At the end of the interview, Trendle told Hunter that UPS was not then hiring.  Trendle "coded Hunter's application as 'poor interview answers."" The reason given to Hunter for not hiring him was that UPS was not hiring, but evidence showed that the actually did hire several other individuals during the relevant period of time.  Trendle's deposition testimony indicated that Hunter's job history was "problematic," involving jobs of short duration and quitting a package handler job at rival FedEx.  The court pointed out that evidence in the record showed that others hired by UPS during that period had just as "problematic" job histories as Hunter.

In the absence of direct evidence of discriminatory intent, it was Hunter's burden to allege facts supporting a prima facie case of intentional sex discrimination based on the McDonnell Douglas v. Green framework approved by the Supreme Court early in the history of Title VII.  As described by Judge Perry, this would involve alleging facts to show that "(1) he is a member of a protected class; (2) he applied and was qualified for a job for which the employer was seeking applicants; (3) he was rejected; and (4) after he was rejected, UPS continued to seek applicants with Hunter's qualifications." The district court found that Hunter failed at the very first step, "because there was no evidence that Trendle knew Hunter was transgendered or perceived his as transgendered and discriminated against him on that basis," and the court of appeals agreed.

Because the case was brought as a disparate treatment case, the plaintiff's burden would be to show that the employer intentionally discriminated on a ground prohibited by Title VII.  The court accepts the growning body of precedent that discriminate due to the applicant's gender non-conformity is a form of sex discrimination, but points out that for intentional discrimination to be established, the plaintiff must show that the employer perceived him to be gender non-conforming. 

"In some cases," wrote Perry, "the claimant's protected status is obvious and it is reasonable to assume the employer was aware of such status, for example, if a woman is nine months pregnant with a protruding stomach she makes no attempt to conceal, awareness can be presumed" in a pregnancy discrimination case.  "But here the evidence does not show that it was obvious that Hunter was born female and attempting to deviate from his traditional gender stereotypes.  In cases of discrimination based on a protected status that is not necessarily obvious, as is sometimes the case with religion or national origin, the employee must show that the employer was sufficiently aware of the employee's status to have been capable of discriminating based on it."

The court pointed out that Hunter had not begun any surgical procedures, had any facial hair, or told Trendle that he "identified as male or transgendered," or that anything Trendle said indicated awareness that Hunter's gender identity was different from that suggested by the name under which he was applying, Jennifer.  "Many fashion trends have called for women to wear short haircuts, men's clothes, or men's shoes," wrote the judge.  "To hang a rule of law on fashions that may change with the times would create an unworkable rule.  Although there is no particular type of evidence that is required to establish a prima facie case of gender or sexual orientation discrimination, some evidence that Trendle was aware of Hunter's protected status was required."

Furthermore, the court found, even if Hunter had been able to plead a prima facie case, which under McDonnell Douglas would create a presumption of discriminatory intent, the employer had adequately rebutted this presumption by the reasons it gave for not offering Hunter a job.  "UPS contends both that Hunter gave poor interview responses and that he had a poor job history," wrote Perry.  This would be enough to place the burden on Hunter of establishing that these reasons were pretextual.  The court was unwilling to infer pretext based on the various holes that Hunter was able to poke in Trendle's testimony, and found that Hunter had not raised a genuine issue of material fact on the issue of pretext that might have defeated the summary judgment motion. 

This part of the court's decision is a bit difficult to follow logically.  Even though none of the individual points that Hunter raised might by themselves be sufficient to support a conclusion that UPS was intentionally discriminating against Hunter, taken together they do suggest a pattern, but the court was unwilling to connect those dots. Hunter had shown that Trendle lied when telling Hunter that UPS was not hiring for the position in question, that UPS had hired other people with similarly poor job histories or even no job history, and that the hiring process appeared to be mostly subjective and thus open to manipulation, but the court found that none of those factors, individually considered, would necessary support a conclusion of intentional discrimination.

"UPS stated legitimate non-discriminatory reasons for not hiring Hunter," wrote Judge Perry, "and Hunter failed to show that a genuine issue of fact exists as to whether those reasons were pretextual.  Summary judgment was appropriate."

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