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Transgendered Job Applicant Loses Title VII Appeal

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By Robyn Hagan Cain on September 20, 2012 10:02 AM

Gage Hunter was born female, but has identified as male since childhood.

In 2006, Hunter applied for a job at UPS under his birth name, Jessica Axt, and presenting as female. Hunter was offered a position, but turned it down.

In 2008, Hunter applied to be a UPS package handler, a popular position due to the great benefits. (Less than 20 percent of package handler applicants are hired.) Hunter didn't get an offer.

Hunter, who had once again applied as Jessica Axt, presented as male during the 2008 interview: Though he had not undergone gender reassignment surgical procedures, he had a short haircut, and wore men's clothing and a "binder" to bind his breasts. At the end of the interview, an individual entered the room and whispered something in interviewer's ear; the interviewer then told Hunter that UPS was not hiring, and coded Hunter's application as "poor interview answers."

Hunter sued UPS under Title VII, claiming the company discriminated against him based on his gender and sexual orientation.

Under Title VII, an employer cannot discriminate against -- or refuse to hire -- an individual based on his or her sex. That includes a prohibition against gender stereotyping. The Minnesota Human Rights Act explicitly forbids employment discrimination based on sexual orientation. Under the state's laws, sexual orientation includes non-traditional gender self-identification.

Hunter's primary argument on appeal was that UPS discriminated against him based on his non-conformity to gender stereotypes or his being perceived as transgendered. The district court found that Hunter failed to establish a prima facie case of discrimination because there was no evidence that UPS interviewer knew Hunter was transgendered, or perceived him as transgendered and discriminated against him on that basis. The Eighth Circuit agreed.

The appellate court found that the most compelling evidence to support Hunter's transgendered discrimination theory was his apparel, but the Eighth Circuit noted, "To hang a rule of law on fashions that may change with the times would create an unworkable rule."

The interviewer's lie was similarly insufficient evidence to create a genuine issue of material fact in this case. When an employer's stated reason for not hiring an applicant or firing an employee is false, an inference of discrimination may potentially be created, but here the false reason was not noted on any of the internal UPS documents. (Furthermore, UPS never argued that it rejected Hunter because it was not hiring.)

Finally, the court reasoned that, even if a jury could find that interviewer inferred that Hunter was transgendered or gender non-conforming at the time of the interview, UPS provided a legitimate non-discriminatory reason -- poor interview responses -- for not hiring Hunter.

When an employer relies, in part, on objective criteria, the use of subjective considerations does not give rise to an inference of discrimination in the Eighth Circuit. If your client's past or prospective employer can point to objective criteria in an employment decision, it will be harder for you to prove your Title VII discrimination case.

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