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Nov. 30 — A male transgender worker fired by General Electric Co. may pursue sex discrimination claims based on his discharge and alleged harassment, a federal court in Kentucky ruled ( Mickens v. Gen. Elec. Co. , 2016 BL 395751, W.D. Ky., No. 16-603, 11/29/16 ).
“This is another important victory for transgender people and strengthens the growing federal court consensus that unequal treatment because a person is transgender is unlawful under federal sex discrimination statutes,” said Shannon Minter, legal director of the National Center for Lesbian Rights in San Francisco.
It is an open issue whether the federal law barring sex discrimination in employment covers discrimination based on a worker’s gender identity. Title VII of the 1964 Civil Rights Act bans sex discrimination, but it doesn’t expressly prohibit bias based on an individual’s gender identity or sexual orientation.
The U.S. Court of Appeals for the Sixth Circuit, which includes Kentucky within its jurisdiction, has ruled transgender workers can pursue Title VII sex bias claims if an employer discriminated based on their failure to conform with gender stereotypes.
Five other federal appeals courts also have allowed sex bias claims by transgender individuals based on the gender stereotyping theory, Minter told Bloomberg BNA Nov. 30.
Former GE employee Mykel Mickens plausibly alleged that the company permitted his colleagues to harass him and that it ultimately fired him because he didn’t conform to gender stereotypes about how someone born female should look and act, the district court said Nov. 29.
Among other things, Mickens claimed GE prevented him from using the men’s bathroom, consistent with his gender identity, and then disciplined him for absences caused by his need to use a more distant restroom.
GE fired Mickens from his appliance factory job for alleged attendance issues in June 2016.
At least some of Mickens’ absences resulted from job-related stress and ailments caused by the bathroom restrictions placed on him, said Shannon R. Fauver, the Louisville attorney who represents him.
The company doesn't comment on employee matters or pending litigation, said a spokesperson for GE Appliances, which operated the Kentucky plant where Mickens worked.
GE Appliances embraces diversity and supports employee organizations such as its lesbian, gay, bisexual and transgender group, the spokesperson told Bloomberg BNA Nov. 30.
The U.S. Supreme Court this term will hearGloucester County School Board v. G.G., which involves whether the Department of Education properly interpreted Title IX of the Education Amendments of 1972 to require public schools to let transgender students use the bathrooms consistent with their gender identities.
A federal appeals court in Chicago Nov. 30 heard oral argument on whether Title VII prohibits bias based on sexual orientation as part of the law’s ban on sex discrimination, without the need to show bias based on gender stereotyping. (See related article in this issue.)
Two other federal appeals courts will hear arguments regarding Title VII’s application to sexual orientation bias in the next few months.
“These cases may have implications for employers in the Title VII context,” Judge Joseph H. McKinley Jr. wrote for the district court in Kentucky.
But it is clear that Mickens “sufficiently alleges facts to support discrimination or disparate treatment” based on gender non-conformity or sex stereotyping, the court said.
Mickens, who is black, also may pursue race discrimination claims under Title VII and Kentucky’s civil rights law, the court said.
Mickens alleged GE failed to address a co-worker’s alleged harassment toward him even though it disciplined that same worker when he harassed a white, female employee.
Mickens’s supervisor, after learning of his transgender status, reprimanded him for workplace conduct the supervisor let slide when other employees did the same thing, he alleged.
When Mickens reported the harassment, GE management allegedly told him there was nothing it could do.
Mickens plausibly alleged bias based both on race and sex, the court concluded.
Attorneys representing General Electric didn’t respond to Bloomberg BNA’s Nov. 30 request for comment.
Dinsmore & Shohl LLP represented General Electric.
To contact the reporter on this story: Kevin McGowan in Washington at firstname.lastname@example.org
Text of the opinion is available at http://www.bloomberglaw.com/public/document/Mickens_v_Gen_Elec_Co_No_316CV00603JHM_2016_BL_395751_WD_Ky_Nov_2.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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