Can employers legally favor transgender employees over cisgender employees?

The words “cisgender” or “non-transgender” employee appear nowhere in Title VII of the Civil Rights Act of 1964, the federal workplace law that outlaws gender discrimination. But, according to a Pennsylvania federal judge, “that does not preclude the possibility that discrimination against both a cisgender male and cisgender female may be independent Title VII violations.”

I’ll explain why.

In October 2019, the Supreme Court decided Bostock v. Clayton County. In Bostock, the Court concluded that Title VII prohibits an employer from discriminating against someone merely because they are gay or transgender. The Supreme Court made clear that “[f]or an employer to discriminate against employees for being . . . transgender, the employer must intentionally discriminate against individual men and women in part because of sex.” And “[b]y discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today.”

So, why wouldn’t the reverse be true? That is, by disfavoring a cisgender person, the employer is discriminating against them “because they continue to identify as the same sex identified as birth.”

In the Pennsylvania decision I read last night, the plaintiff, a cisgender male, alleged that his employer later hired two transgender employees. The plaintiff further claimed that he complained to his manager about unequal treatment, including instances in which his transgender coworkers arrived late and kept the store open past regular operating hours. But, rather than discipline these employees, the manager promoted one of them. A few months later, the employer fired the plaintiff and another cisgender (female) coworker. The plaintiff claimed that they were the only two cisgender employees working at the same store location. Thus, after the terminations, only transgender employees worked there.

Except, argued the defendant, since the plaintiff alleged that the defendant simultaneously fired a cisgender male and female, he “fails to show how similarly situated employees outside of his protected status as a male were treated more favorably.”

Not so fast.

Bostock refutes this argument: “An employer musters no better a defense by responding that it is equally happy to fire male and female employees who are homosexual or transgender…[T]he law makes each instance of discriminating against an individual employee because of that individual’s sex an independent violation of Title VII.” It follows then that “[f]or an employer to discriminate against employees for being [cisgender], the employer must intentionally discriminate against individual men and women in part because of sex.”

“If anything,” noted the court, firing two cisgender employees together “bolsters” the plaintiff’s argument.

Therefore, if his allegations are true, the cisgender plaintiff would have a viable claim under Title VII for gender discrimination.