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By Porter Wells
FedEx couldn’t convince a federal judge to dismiss a transgender former employee’s claim that it discriminated against him because of his sexual orientation.
The decision highlights an ongoing judicial conversation on the interrelatedness of sex, gender identity, and sexual orientation. The U.S. Supreme Court declined in December to take up a case questioning whether sexual orientation is protected under Title VII of the 1964 Civil Rights Act. But the First, Second, and Seventh circuits all have opened the door to the interpretation that it is.
Miko Squire, a transgender man who was assigned female at birth and is now married to a woman, sued FedEx under the Maryland Fair Employment Practices Act after he was fired in March 2017. FedEx says it fired Squire because he wouldn’t work extra shifts. The MFEPA bars discrimination against LGBTQ+ workers, but FedEx argued that Squire’s sexual orientation claim should have been dismissed because he hadn’t alleged it on the Equal Employment Opportunity Commission charge that is the foundation of his suit.
When it comes to sex and sexual orientation bias, “no case law definitively states that these terms are either distinct from one another (and thus, must be specifically claimed), or closely related to one another (and thus, do not require separate claims),” Judge Marvin Garbis wrote June 19 for the U.S. District Court for the District of Maryland.
Typically, courts only consider employment discrimination claims that a worker includes in his or her EEOC charge. That’s the very reason FedEx succeeded in getting Squire’s retaliation claim kicked out—he hadn’t flagged it on his charge form. The form doesn’t have a box for sexual orientation bias, however, though it does have a box for sex bias.
The total absence of an opportunity for Squire to claim sexual orientation bias on his EEOC charge, combined with EEOC precedent that considers sexual orientation bias as a form of gender stereotyping, led Garbis to deny FedEx’s motion to dismiss that claim.
“FedEx Freight does not tolerate any form of discrimination and we agree with the Court’s dismissal of plaintiff’s retaliation claim. The ruling on the sexual orientation claim is strictly procedural in nature and we believe plaintiff’s allegations are without substance. FedEx Freight will continue to vigorously defend the lawsuit,” FedEx communications adviser Shannon Davis told Bloomberg Law in a June 20 email.
Attorneys for the parties didn’t immediately respond to Bloomberg Law’s request for comment.
The Heyman Law Firm in Baltimore represents Squire. Kollman Law in Timonium, Md., represents FedEx.
The case is Squire v. FedEx Freight, Inc., 2018 BL 216586, D. Md., No. MJG-17-3597, opinion issued 6/19/18.
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