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Is Transgender Discrimination Covered by Title VII?

By Aditi Mukherji, JD on September 19, 2013 | Last updated on March 21, 2019

Under Title VII of the Civil Rights Act of 1964, an employer cannot discriminate against -- or refuse to hire -- an individual based on his or her sex. That includes a prohibition against gender stereotyping.

Recently, a South Dakota woman's transgender discrimination settlement joined a growing trend of cases that say transgender discrimination is applicable to Title VII.

But does the settlement jibe with the Eighth Circuit's precedent?

Transgender Discrimination Settlement

Cori McCreery, 29, was fired in 2010 after telling her employer at Don's Valley Market in Rapid City, S.D. that she would be transitioning from a man to a woman. The EEOC and Lambda Legal filed a complaint against the supermarket on behalf of McCreery, alleging a Title VII violation.

A fairly epic settlement was reached. In addition to McCreery receiving $50,000, the settlement agreement requires McCreery's former employer to:

  • Obtain professional anti-discrimination training annually for all of its employees;
  • Implement and distribute an anti-discrimination policy to all employees;
  • Report all future complaints of discrimination to the EEOC; and
  • Provide McCreery with a letter of apology and a neutral letter of reference.

Eighth Circuit Ruling: No Title VII Protection

In contrast to the South Dakota settlement, the Eighth Circuit last year rejected a transgendered job applicant's Title VII appeal. Gage Hunter, who was born Jessica Axt, presented in one interview with UPS as a female (and got a job offer) and in an unrelated interview presented as male (and didn't get a job offer).

Hunter filed a lawsuit, claiming sex and sexual orientation discrimination but lost at the district court level. The Eighth Circuit Court of Appeals affirmed the lower court's ruling.

In that case from Minnesota, the appeals panel ruled Hunter failed to establish a prima facie case of discrimination because there was no evidence that the UPS interviewer knew Hunter was transgendered, or perceived him as transgendered and discriminated against him on that basis.

Instead, the court ruled UPS had objective, non-discriminatory reasons for denying Hunter the job (namely, that he provided unsatisfactory interview responses).

Case-By-Case Basis

As with most employment discrimination lawsuits, it seems the success of a transgender discrimination lawsuit in the Eighth Circuit will hinge on the facts of the particular case.

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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