Labor & Employment Law Daily Transgender corrections officer avoids dismissal of gender bias claim
Friday, March 25, 2016

Transgender corrections officer avoids dismissal of gender bias claim

By Joy P. Waltemath, J.D. Refusing to dismiss a gender discrimination claim filed by a transgender corrections officer, a federal district court in Arizona found that allegations of repeated disparaging remarks about his gender, as well as supervisory comments that his gender was offensive, that he was not safe working in the department, and that they would not respond to emergency calls from him stated sufficiently severe and pervasive harassment. Claims that his coworkers had informed prison inmates of his transgender status and that his supervisors also failed to investigate or take corrective action sufficiently alleged an adverse employment action and disparate treatment. But his retaliation claim (based on alleged employer actions after he filed an EEOC charge) was not administratively exhausted (Doe v. State of Arizona, March 21, 2016, Campbell, D.). Other workers repeatedly made disparaging remarks about the transgender corrections officer, his complaint alleged; they referred to him as a “he/she,” “it,” and “whatever.” He alleged that his supervisors told him other department officers were offended by his gender, that he was not safe in the department, and that they would not respond to emergency calls from him. His tire was slashed in the employee parking lot. He repeatedly complained to his supervisors about the harassment, but there was no investigation, no discipline for the employees responsible, and no end to the harassment. His EEOC charge complained of sex discrimination, including the transphobic comments about him made by other corrections officers, and also claimed that his coworkers had informed prison inmates of his transitioning status but his supervisors had failed to investigate or take corrective action about this breach of his confidentiality. In his subsequent gender discrimination and retaliation lawsuit, the state moved to dismiss, arguing he had not exhausted administrative remedies and failed to state a claim of sex discrimination. Administrative exhaustion. Although the allegations in the officer’s EEOC charge described a gender discrimination claim adequately, he had not exhausted his retaliation claim. Stating that he is transgender satisfied the “protected status” element; alleging that his supervisors tolerated the harassment and told prison inmates about his transition satisfied the “adverse employment action” and “disparate treatment” elements of a gender discrimination claim. It was unnecessary for him to allege “satisfactory job performance” because he had not lost his job. Retaliation. He acknowledged that his EEOC charge did not contain a retaliation claim but tried to excuse that deficiency because the retaliation allegedly occurred in response to the filing of the charge itself. That did not help him, however, because his retaliation claim was not like or reasonably related to his allegations of gender-identity harassment. His right-to-sue letter made it clear that the EEOC did not actually investigate any retaliation claim; his charge alleged facts related only to his claim of harassment, which occurred months before his charge was filed. Since it had not been exhausted, his retaliation claim was dismissed for lack of jurisdiction. Gender discrimination. The court did not agree with the state’s contention that the corrections officer failed to identify any adverse employment action that he faced because of his gender. Allegations of severe and pervasive harassment by coworkers and supervisors, in fact, were sufficient to state a claim of gender discrimination. And the complaint was sufficiently specific, even though the state said it failed to describe the “specific incidents, dates, and/or actors” relevant to his claim. Specific incidents were described, stressed the court, which did not agree that the officer had to allege specific dates or employee names to state a claim, particularly where he had withheld the names to protect his identity. He also claimed that his supervisors knew of the harassment and refused to investigate these events, enough for the court to infer that the state was alleged to be liable for tolerating the harassment. Moreover, a hostile work environment is a form of disparate treatment, agreed the court, concluding that the officer adequately stated a claim for gender discrimination based on harassment giving rise to a hostile work environment.

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