Title VII prohibits discrimination based on gender, including decisions involving required adherence to a gender stereotype. In recent years, a number of employees and applicants in various stages of the gender reassignment process have filed discrimination suits alleging gender stereotype discrimination. Earlier this month, the Eight Circuit Court of Appeals rejected one such claim on the basis that the plaintiff never demonstrated that the employer was aware of his transgendered status.
In Hunter v. UPS, Inc., the plaintiff was born a woman, but had begun taking male hormones and was in the pre-operative stages of the gender reassignment process. He applied for a job with UPS using his legal name at that time, Jessica. He appeared at the interview in men's clothes, with a short haircut and wearing a binder to reduce the appearance of female breasts. When rejected for the job, he sued, alleging gender discrimination under Title VII.
The Eighth Circuit affirmed summary judgment for UPS. The court never reached the gender stereotyping issue, concluding that the plaintiff never demonstrated sufficient evidence that UPS knew he was transgendered. The Eighth Circuit noted that appearance alone was not enough to make the employer aware of his protected status. Short haircuts and masculine clothing could also be the sign of a fashion trend or a non-conforming individual.
This same reasoning would be less persuasive in the case of an existing employee as opposed to an applicant who the employer has never met. Presumably, the employer would have adequate knowledge of an existing employee's gender status to be presumed to know when a change was in progress. For confused or uncertain interviewers, however, not inquiring about gender status may be the best course of action.