One of the greatest rock songs of all time, in my humble opinion, is “Lola” by the Kinks:
“Well, I'm not the world's most physical guy,
But when she squeezed me tight she nearly broke my spine…”
While the song is funny (at least I think it is, although in our politically correct world, who knows), workplace issues presented by transgender people are obviously quite serious. When Joe on the shop floor makes the transition to Josephine, she understandably may be quite sensitive about her new status. Some of her co-workers likely harbor certain prejudices or preconceptions. And while we like to think that we’re an advanced, tolerant society, put this all together, and you have a volatile mix just waiting for the spark (and a potential EPLI claim).
Consider the recent 11th Circuit decision in Chavez v. Credit Nation Auto Sales, LLC. Chavez was an auto mechanic who had worked at Credit Nation for a year and a half. Chavez decided to go through gender transition. Initially, her boss (Torchia) was accommodating, and even allowed Chavez an additional week of unaccrued vacation time to recover after one of her surgeries. Chavez, in fact, wrote a letter to the local newspaper praising her employer’s support for her gender transition. But things rapidly went downhill from there.
About a month after the letter, Torchia met with Chavez and told Chavez that he was very nervous about the gender transition and the “possible ramifications.” Torchia stated that he thought the “new” Chavez could “negatively impact his business.” He also told Chavez not to wear a dress when traveling back and forth to work. Meanwhile, a Vice-President with the company, Weston, told Chavez that she needed to “tone it down” and not talk about her gender transition in the shop. Management also told Chavez that she couldn’t use a unisex customer bathroom that other female employees were permitted to use. (As those of us who handle insurance or employment matters know: At this point, having said these less-than-intelligent things, Credit Nation’s management had virtually guaranteed that the company could never fire Chavez without a potential lawsuit.)
Ultimately, Credit Nation fired Chavez, after she fell asleep for 40 minutes inside a customer’s car while working on it. (Credit Nation had also fired hired another employee for a similar offense.) And, this being America, Chavez then visited her friendly neighborhood plaintiff’s attorney.
I think most people would agree that falling asleep on a shop floor for 40 minutes is a legitimate reason for termination. The question, though, given the history of discussions between Chavez and management, was whether Chavez’s transgender-ism was a motivating factor in the firing.
The Court held that there was enough evidence to allow a jury to decide the issue, citing 42 U.S.C. §2000e-2, which reads: “[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” (Emphasis mine.) While Credit Nation argued that Chavez needed to prove that the reasons given for her firing were mere “pretext,” the Court rejected that position, writing: “McDonnell Douglas [the Supreme Court decision analyzing the rules for determining “pretext”] is one route, but not the only available avenue in sex discrimination cases.”
An interesting thing about this case is that upper management, not the line workers, created the problem. Chavez’s shop foreman, in fact, told Chavez: “I know for a fact you were run out of Credit Nation.” The problem here is that management was not clear and consistent in its values. Torchia initially supported Chavez, but then became wobbly and made unfortunate statements about his discomfort with Chavez’s transition.
In general, though, this is a very tough situation for management, because employees are certainly going to notice when a coworker changes gender, and management can’t police every dumb or hurtful comment. One thing is sure: Managers need to know that they are not to discuss, or comment upon, an employee’s protected status. If they violate that rule, the employee will always suspect that an adverse employment action was based on improper motivation. And then you’d better have adequate EPLI (but, of course, insurance is a topic for our other blog).
- Gene Killian