Sometimes it’s easy to lose the forest for the trees.
Last night, after uploading the recording of yesterday’s CDC Face Mask Zoom to The Employer Handbook YouTube Channel, I read this recent Fifth Circuit opinion. It involves a transgender employee suing a former employer for sex discrimination based on gender identity (Title VII – Sex) and disability discrimination (ADA).
The plaintiff worked for the defendant for a few years. During the first half of 2016, a supervisor allegedly made demeaning and inappropriate comments about the plaintiff’s transgender status. The plaintiff complained to HR, and the company allegedly retaliated by reducing the plaintiff’s hours.
(This subsequent retaliation claim ended up being time-barred).
In September 2017, the plaintiff stopped coming to work to undergo some medical procedures. The defendant provided the plaintiff with three months of unpaid leave, which it then extended a few more months. But it denied a further extension of leave in March 2018 and fired the plaintiff the following month.
Can a plaintiff prevail on discrimination claims without alleging less favorable treatment than similarly situated employees outside of the plaintiff’s protected class?
First, let’s dispense with another claim that the plaintiff did not appear to allege. An indefinite leave of absence is never a reasonable accommodation under the ADA. Therefore, any failure-to-accommodate claim would have failed.
So, we’re left with straight-up disparate treatment.
Under Bostock v. Clayton County, the Supreme Court concluded that gender identity bias is a form of sex discrimination under Title VII. But those facts and allegations were quite different and I think you can see we’re going with this. So, I’ll let the Fifth Circuit make the point for me.
[The plaintiff] alleges transgender discrimination under Title VII. But [the plaintiff] does not allege facts sufficient to support an inference of transgender discrimination—that is, that [the defendant] would have behaved differently toward an employee with a different gender identity. So we are left with this: An employer discharged a sales employee who happens to be transgender—but who took six months of leave, and then sought further leave for the indefinite future. That is not discrimination—that is ordinary business practice.
Yes, most times, it is just business.