An individual who’s discriminated in opposition to for not being transgender can have a legitimate declare underneath Title VII for “intercourse” (actually, gender identification) discrimination.

In McCreary v. Grownup World, Inc., a cisgender male sued after he was fired, for allegedly bogus causes, from his place as a clerk/cleaner at an grownup novelty retailer in, of all locations, Quakertown, Pennsylvania. (A cisgender individual is one who identities as a member of their organic intercourse.) He claimed that his transgender co-workers had been handled extra favorably. The shop requested the court docket to dismiss his lawsuit proper out of the beginning gate.

However a federal decide refused to dismiss the lawsuit. That doesn’t imply that the plaintiff will win, but it surely does imply that his lawsuit stays alive.

To dismiss a lawsuit at this very early stage, the court docket has to imagine that the whole lot alleged by the plaintiff is true. (If the lawsuit will not be dismissed, the defendant could have the possibility to develop and current proof supporting its aspect of the story.)

So the next is what’s been alleged by the plaintiff:

In accordance with the plaintiff’s lawsuit, the shop’s district supervisor employed two transgender workers when the plaintiff was already working there. The plaintiff complained to the supervisor that the 2 transgender workers incessantly confirmed up late and saved the shop open previous its closing time. Not solely did the supervisor refuse to do something about it, however he additionally promoted one of many transgender workers to retailer supervisor – over the pinnacle of the plaintiff.

Then, a few months earlier than the plaintiff’s termination, a buyer complained about one other co-worker – a cisgender feminine. Regardless that the plaintiff was a witness to the encounter and defended his co-worker, the district supervisor instantly wrote her up.

Not lengthy afterward, the district supervisor “abruptly” fired the plaintiff for placing a drape over a fireplace exit and protecting a tip jar on the counter. He additionally accused the plaintiff of stealing. The district supervisor fired the feminine coworker the identical day, and a month earlier, he had fired the one different cisgender worker within the retailer (a male). Because of these firings, one hundred pc of the remaining employees was (had been?) transgender.

On the drape over the hearth exit, the plaintiff stated he did that solely as a result of the hearth exit had a window to the skin and he didn’t need children to have the ability to see inside. Additionally, he’d by no means been advised that he couldn’t put a drape over the hearth exit. The plaintiff denied stealing from the shop. He admitted to the tip jar however stated nobody had ever advised him that tip jars weren’t allowed.

When the plaintiff contacted the corporate’s Human Sources and Payroll departments about his termination, they advised him they didn’t know he had been terminated.

Er . . . “fascinating” arguments from Grownup World 

In arguing that the lawsuit needs to be dismissed, the shop stated that the plaintiff’s “protected standing” was male and the truth that his feminine co-worker was fired on the identical day confirmed that the plaintiff was not discriminated in opposition to as a result of he was a man. Additionally, that cisgender individuals are not a protected class underneath Title VII.

The shop additionally argued that placing a drape over a fireplace exit or placing a tip jar on the counter had been impartial, non-sex-based causes for termination.

However the plaintiff cited Bostock v. Clayton County, the 2020 Supreme Court docket choice that acknowledged for the primary time that discrimination based mostly on sexual orientation and gender identification had been prohibited by Title VII. 

And the court docket discovered that Title VII post-Bostock protects not solely transgender folks from gender identification discrimination but in addition “reverse discrimination” in opposition to cisgender folks.

In my view, that stands to motive. In spite of everything, white folks can sue for race discrimination underneath Title VII, and males can sue for old school intercourse discrimination. Why ought to sexual orientation and gender identification be any completely different?

Then the court docket stated that the plaintiff had alleged sufficient in his lawsuit to maintain his Title VII declare alive:

Plaintiff alleges that he complained to Defendant that Plaintiff’s transgender co-workers “incessantly arrived late to work and saved the shop open previous the working hours,” and but that Defendant by no means disciplined them. On the contrary, one co-worker was promoted on a quicker timeline than Plaintiff. In contrast, Plaintiff was allegedly terminated – with out warning – for a first-time infraction. Likewise, Defendant instantly disciplined [the female co-worker] casting doubt on the validity of the underlying buyer criticism.

And there was additionally the truth that, after the terminations, the shop’s employees was completely made up of transgender employees.

“[A]llegations that an employer impermissibly favors transgender workers over each equally located cisgender males and equally located cisgender females” is sufficient to create an inference of discrimination. And there was no indication that equally located transgender workers had been handled the identical because the plaintiff or his cisgender co-workers.

Once more, the court docket’s choice means solely that the case will transfer ahead. It doesn’t essentially imply that the plaintiff will win. And, whatever the consequence, I critically doubt that we are going to be seeing a flood of reverse gender identification discrimination lawsuits.

That stated, goose, meet gander.

Picture Credit score: Portrait of William Penn (1644-1718), founding father of the Province of Pennsylvania, from Wikimedia Commons (public area). Geese and ganders from Adobe Inventory.