On September 5, 2018, Judge R. Brooke Jackson of the U.S. District Court for the District of Colorado, i.e., Colorado’s federal trial court, ruled against A&E Tire Inc., an employer, when it submitted so-called Rule 12(b)(6) motions to dismiss claims of discrimination filed in a 2017 lawsuit by the EEOC on behalf of a transgender man, Egan Woodward. The U.S. District Court for the District of Colorado is part of the 10th Circuit, which includes Colorado, Utah, New Mexico, Kansas, Oklahoma, and Wyoming. Thus, any potential future appeal from the Colorado federal trial court would land with the 10th Circuit Court of Appeals, with implications for employers in any or all of these states. The order for the case is found under EEOC v. A&E Tire, Inc. (D. Colo. September 5, 2018).
The facts of the case are disputed. In line with rules of civil procedure followed by federal courts, the order states the facts as they are related by the plaintiff and takes them as true for purposes of the motion to dismiss only. Thus, the facts related here may not be the ultimate facts found by a jury if the case were to proceed to trial.
According to the plaintiff, he interviewed for a managerial position with one of the employer’s manager. The interview took 45 minutes and, according to the plaintiff, he was told that he had to pass certain pre-employment testing and the job was his. At the interview, the plaintiff appeared with a goatee and in “male attire,” such that he was not recognized as transgender. The plaintiff alleges that the manager then gave him a tour of the premises and even sought his input into the design of new offices.
When the plaintiff completed a consent form for the background check, he input the “name he was assigned at birth, which is typically associated with the female sex,” and indicated on the form that his sex “was female.” Allegedly, the manager then called Woodward, noted that he identified as female and, upon receiving confirmation, stated, “Oh, that’s all I need,” and hung up the phone. Woodward was not hired for the position.
In the motions to dismiss, the employer argued that the facts did not support claims of sex-stereotyping or transgender discrimination. The court, looking to Supreme Court precedent in the seminal case of Price Waterhouse v. Hopkins (1989), found that the facts, as asserted by the plaintiff, may be seen to show that he was not hired for the position because he did not act in conformity with his indicated sex at birth, i.e., female.
The court declined to decide whether “transgender” status is covered under Title VII of the Civil Rights Act of 1964 (Title VII), especially as doing so would run contrary to binding precedent in the 10th Circuit case of Etsitty v. Utah Transit Authority (10th Cir. 2007).
While this merely means that the case will proceed, i.e., no one has “won,” the decision highlights a risk for employers even in jurisdictions where there is standing precedent indicating that transgender status is not covered under Title VII. In other words, even if transgender status is not covered under federal law as interpreted by an authoritative court, a plaintiff may still argue that he or she was subjected to impermissible “sex-stereotyping” because he or she is male or female, but did not act in conformity with male or female stereotypes. In other words, if a position is denied to an applicant who expresses him- or herself as being of a certain gender, based on the fact that he or she did not appear to act in a way stereotypically associated with his or her gender at birth, this may be “sex-stereotyping” and actionable under Title VII. This reinforces the need for employers to conduct proper training of their hiring authorities to avoid these types of claims.
As for Colorado employers specifically, they should be aware that the Colorado Anti-Discrimination Act covers transgender status and protected individuals, including both applicants and current employees, from discrimination on that basis.