La-la-la-la-Lawsuit

Whether fans of the classic Kinks' song Lola or not, Indiana employers should be aware of a recent decision by the U.S. District Court for the Northern District of Indiana proving the truth of the lyric, "Girls will be boys and boys will be girls. It's a mixed up, muddled up, shook up world. . . ."

In Creed v. Family Express Corp., N.D. Ind., No. 3:06cv00465, 8/03/07, a former employee in the process of switching his sexual identity from male to female brought a claim against his employer accusing them of discrimination on the basis of the employee's "transgendered" status. The employee was terminated after he began to change his appearance from masculine to feminine -- wearing nail polish and other cosmetics and styling his hair and eyebrows in a more feminine way – and refused an alleged directive from the employer to dress in a more masculine way while he was at work.

The employee later sued under Title VII of the Civil Rights Act of 1964, claiming that he was the victim of sex discrimination on account of his "transgendered status." In response to the employer's motion to dismiss, the court agreed that transgendered status in and of itself is not protected under Title VII. However, the court noted that "sex stereotyping" can be unlawful under Title VII if an employer takes some adverse action based on the employee's "failure to appear masculine or feminine enough."

In this case the court held that the allegations made by Creed in the complaint suggested that the employer may have "harbored certain stereotypical perceptions of how men should dress" and terminated the employee because of his refusal to conform with those stereotypes. Accordingly, the court refused the employer's request to dismiss the case on its face and held instead that a jury trial was necessary to determine whether the allegations made in the complaint were true or false.

Claims of discrimination or harassment by transgendered employees are still rare, and the theory of "sex stereotyping" is a developing one that bears watching. As a practical matter, employers faced with situations in which "dude looks like a lady" or vice versa should be careful to apply their employment policies in a non-discriminatory manner and to monitor potential harassment of such employees by their co-workers. Failure to do so could result in the type of "Crying Game" faced by the employer in Creed.

Michael Tooley is a partner in Ice Miller's Labor and Employment Group. Mike represents employers in all aspects of labor relations and employment-related matters, including collective bargaining, arbitration, administrative proceedings before the NLRB, EEOC and other federal and state agencies, and employment-related litigation in state and federal courts.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.