Yes, employers, you can win a transgender discrimination suit

UPDATE (1/15/16): The U.S. Court of Appeals for the Eleventh Circuit reversed this decision yesterday, finding that Ms. Chavez's "mixed-motive" claim can go to a jury. Here is a copy of the Eleventh Circuit decision. Thanks very much to Ms. Chavez's attorney, Jillian Weiss, who alerted us.

A recent decision from a federal court in Georgia provides an excellent illustration about how employers can win summary judgment (dismissal before a jury trial) even in cases as sensitive as those alleging discrimination based on gender identity.

Plaintiff Jennifer Chavez was hired as a mechanic by Credit Nation Auto Sales in Austell, Georgia (a suburb of Atlanta), when she was Luis Chavez, a man. After a little more than a year on the job, then-Mr. Chavez told management that he intended to undergo gender reassignment. (At this point, we will refer to the Plaintiff as “Ms. Chavez.”) According to Ms. Chavez, management and her co-workers were extremely supportive . . . for about two weeks. During that two-week period, Ms. Chavez even sent an email to a reporter from the Atlanta Journal-Constitution, going on and on about how supportive her co-workers had been, “even the crotchety old southern guys who I thought were set in their ways.” Ms. Chavez also said that, after the co-workers were informed, the owner sent an email reminding them of Credit Nation’s policy against harassment.

(We could not find an article about Ms. Chavez in the Journal-Constitution, but we did find some other articles about Ms. Chavez here and here.)

After that two weeks, though, things began to turn sour, according to Ms. Chavez. She was counseled for talking too much with other mechanics about the details of the reassignment process, including breast augmentation surgery, which made the other mechanics feel uncomfortable. She had a couple of heated arguments with one mechanic.

The owner of the company had to counsel Ms. Chavez because she was changing into her dress and high heels and coming back into the garage work area dressed that way before the work day was over. Meanwhile, she was telling co-workers that she had the cell phone number of the vice president, which made the co-workers resentful, and required the VP to give her cell phone number to everyone to stop the talk about favoritism.

There was also the dreaded “restroom issue,” but with a twist: Credit Nation already had a unisex restroom, but it was reserved for customers and office employees. The mechanics had a separate restroom (presumably, a men’s room, although the court’s decision doesn’t say that) because the mechanics were dirty and greasy, and customers and office workers didn’t want dirt or grease in their bathroom. Ms. Chavez wanted to use the "clean" bathroom, even though she was a mechanic. After consulting with counsel, Credit Nation told her that she would have to use the mechanics’ bathroom, just like the other mechanics.

An example of an all-gender restroom sign. (This is not from the Credit Nation facility.)

Does it seem like Ms. Chavez was trying to set up Credit Nation for a wrongful termination lawsuit?

About three months after she "came out” to management and co-workers, Ms. Chavez arrived for work one January morning, clocked in, and went into the garage in her street clothes. It was a cold day, she said, so she got into the back seat of a car to get warm. She fell asleep, and was caught on camera after apparently sleeping in the car for more than two hours – while on the clock. She finally woke up and was allowed to work the rest of the day, but she was ultimately fired for sleeping on the job/time theft. Another employee, who did not have previous write-ups in his file, had previously been terminated for the same reason. Ms. Chavez filed an EEOC charge and sued for sex discrimination based on gender identity.

(Ms. Chavez was terminated in 2009, and at the time the EEOC told her twice that it could not process her charge because Title VII did not apply to gender identity discrimination. That would not happen today, and in this case the court found that Ms. Chavez was entitled to an extended charge-filing period because of the EEOC’s actions.)

Even though the charge was treated as timely, and even though gender identity discrimination is a form of sex discrimination prohibited by Title VII, the court adopted a magistrate’s recommendation and granted summary judgment to Credit Nation based on Ms. Chavez’s “time theft” related to her sleeping on the job. The counselings she had been given were not evidence of prejudice because of her transgender status, the court said, and she had no evidence that sleeping on the job – especially while on the clock - was was not a legitimate ground for discharge. The evidence of the other employee's termination for the same reason appeared to be critical to this part of the court's ruling.

What did Credit Nation do right? A lot.

*Management was supportive and sensitive when first informed about Ms. Chavez’s plan to undergo gender reassignment.

*The owner set the right tone early on by preemptively reminding employees about the policy against harassment.

*Credit Nation accommodated Ms. Chavez's need to take time off for surgery, even though she did not have enough accrued time available.

*Ms. Chavez’s work-related problems – “TMI,”* dressing inappropriately for the work area, getting into arguments with co-workers, and the like – were all legitimate, and it was undisputed that she had slept on the job for two hours while on the clock.

 *"Too Much Information"

*The employer consulted with legal counsel about the restroom issue before making a final decision.

*The employer had good reason, unrelated to Ms. Chavez’s transgender status, for keeping her out of the unisex “clean” bathroom.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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