Employment Law Daily Denying transgender extern use of women’s restroom supports failure-to-hire claim
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Tuesday, June 28, 2016

Denying transgender extern use of women’s restroom supports failure-to-hire claim

By Kathleen Kapusta, J.D. Allegations by a transgender woman that during her externship, her supervisor told her she could not use the women’s restroom and refused to allow her to participate in an examination of a female patient because "only females are allowed beyond this point," and that the supervisor told others on the day before she was terminated from the externship that "he-shes . . . and gays will need to answer to Jesus some day" were sufficient to allow her Title VII and NYHRL failure-to-hire claims to survive dismissal. Because the plaintiff, however, was never actually the defendant’s employee, but rather an unpaid extern, her other discrimination claims were dismissed by the federal district court in New York (Carr v. North Shore - Long Island Jewish Health Systems, Inc., June 23, 2016, Seybert, J.). Selected for the externship without an in-person interview, the plaintiff interviewed for a full-time position with the defendant prior to the start of the externship and was told that the successful completion of the program would result in a job offer. After she began her externship, she alleged that her supervisor consistently demeaned her in the presence of others, yelled at her numerous times, screamed "what is wrong with you," and belittled her by making her package dog treats for a pet fair. Use the public restroom. She also claimed she was repeatedly locked out of the bathroom used by female employees and that when she attempted to access it, she heard "chatter" and was subjected to "stares." On one occasion, she alleged, after encountering a locked ladies room, she asked her supervisor why the bathroom was locked and was told "to use the public restroom, and not the restroom designated for the female employees in the unit where she served as an extern." She also claimed that prior to the examination of a female patient, she was "left behind a closed door" and told by her supervisor that "only females were permitted beyond this point." Answer to Jesus. About a month after she started the externship, she alleged that her supervisor asked about her religion and when replied that she belonged to a church that "catered to alternative lifestyles," her supervisor told her Jesus did not recognize such a religion. Later that day, she purportedly overheard her supervisor telling a patient’s mother that her church was "not a religion that is recognized by Jesus and people like her, and the he-shes, . . . and the gays will need to answer to Jesus some day." The following morning, she received an email asking her not to return to the externship. Claiming that it was the defendant’s custom and practice to offer permanent positions to externs upon successful completion of the program, she sued under Title VII and the NYHRL alleging it failed to hire her based on sex and religion. "I’m not sure." The court first rejected the defendant’s contention that the plaintiff’s allegations should be dismissed as "speculative" because she questioned in her final email to the defendant whether or not she was fired because of her gender, stating "was it my Gender, I’m not sure." Whether or not she subjectively believed at the time she was terminated that she was the victim of discrimination was not dispositive with respect to the element of intent, said the court. Failure to hire. As to her allegation that the defendant failed to hire her because of her gender, her second amended complaint provided enough circumstantial evidence of discriminatory intent to allow her claim to survive the defendant’s motion to dismiss. Although much of the alleged conduct lacked a tangible link to a discriminatory purpose, her claims that her supervisor made specific negative comments about her gender on three separate occasions together with the fact that she was terminated the day after the supervisor made her last comments about her gender and religion were sufficient to allow her failure to hire claims to proceed to discovery, said the court, denying the defendant’s motion to dismiss in part.

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