Reverse gender identity discrimination? Yes, it’s a thing.: Employment & Labor Insider

A person who is discriminated against for not being transgender can have a valid claim under Title VII for “sex” (really, gender identity) discrimination.

In McCreary v. Adult World, Inc., a cisgender male sued after he was fired, for allegedly bogus reasons, from his position as a clerk/cleaner at an adult novelty store in, of all places, Quakertown, Pennsylvania. (A cisgender person is one who identities as a member of their biological sex.) He claimed that his transgender co-workers were treated more favorably. The store asked the court to dismiss his lawsuit right out of the starting gate.

But a federal judge refused to dismiss the lawsuit. That doesn’t mean that the plaintiff will win, but it does mean that his lawsuit stays alive.

To dismiss a lawsuit at this very early stage, the court has to assume that everything alleged by the plaintiff is true. (If the lawsuit is not dismissed, the defendant will have the chance to develop and present evidence supporting its side of the story.)

So the following is what’s been alleged by the plaintiff:

According to the plaintiff’s lawsuit, the store’s district manager hired two transgender employees when the plaintiff was already working there. The plaintiff complained to the manager that the two transgender employees frequently showed up late and kept the store open past its closing time. Not only did the manager refuse to do anything about it, but he also promoted one of the transgender employees to store manager – over the head of the plaintiff.

Then, a couple of months before the plaintiff’s termination, a customer complained about another co-worker – a cisgender female. Even though the plaintiff was a witness to the encounter and defended his co-worker, the district manager immediately wrote her up.

Not long afterward, the district manager “abruptly” fired the plaintiff for putting a drape over a fire exit and keeping a tip jar on the counter. He also accused the plaintiff of stealing. The district manager fired the female coworker the same day, and a month earlier, he had fired the only other cisgender employee in the store (a male). As a result of these firings, 100 percent of the remaining staff was (were?) transgender.

On the drape over the fire exit, the plaintiff said he did that only because the fire exit had a window to the outside and he didn’t want kids to be able to see inside. Also, he’d never been told that he couldn’t put a drape over the fire exit. The plaintiff denied stealing from the store. He admitted to the tip jar but said no one had ever told him that tip jars were not allowed.

When the plaintiff contacted the company’s Human Resources and Payroll departments about his termination, they told him they did not know he had been terminated.

Er . . . “interesting” arguments from Adult World 

In arguing that the lawsuit should be dismissed, the store said that the plaintiff’s “protected status” was male and the fact that his female co-worker was fired on the same day showed that the plaintiff was not discriminated against because he was a guy. Also, that cisgender people are not a protected class under Title VII.

The store also argued that putting a drape over a fire exit or putting a tip jar on the counter were neutral, non-sex-based reasons for termination.

But the plaintiff cited Bostock v. Clayton County, the 2020 Supreme Court decision that recognized for the first time that discrimination based on sexual orientation and gender identity were prohibited by Title VII. 

And the court found that Title VII post-Bostock protects not only transgender people from gender identity discrimination but also “reverse discrimination” against cisgender people.

In my opinion, that stands to reason. After all, white people can sue for race discrimination under Title VII, and men can sue for old-fashioned sex discrimination. Why should sexual orientation and gender identity be any different?

Then the court said that the plaintiff had alleged enough in his lawsuit to keep his Title VII claim alive:

Plaintiff alleges that he complained to Defendant that Plaintiff’s transgender co-workers “frequently arrived late to work and kept the store open past the operating hours,” and yet that Defendant never disciplined them. To the contrary, one co-worker was promoted on a faster timeline than Plaintiff. By contrast, Plaintiff was allegedly terminated – without warning – for a first-time infraction. Likewise, Defendant immediately disciplined [the female co-worker] casting doubt on the validity of the underlying customer complaint.

And there was also the fact that, after the terminations, the store’s staff was entirely made up of transgender workers.

“[A]llegations that an employer impermissibly favors transgender employees over both similarly situated cisgender males and similarly situated cisgender females” is enough to create an inference of discrimination. And there was no indication that similarly situated transgender employees were treated the same as the plaintiff or his cisgender co-workers.

Again, the court’s decision means only that the case will move forward. It does not necessarily mean that the plaintiff will win. And, regardless of the outcome, I seriously doubt that we will be seeing a flood of reverse gender identity discrimination lawsuits.

That said, goose, meet gander.

Image Credit: Portrait of William Penn (1644-1718), founder of the Province of Pennsylvania, from Wikimedia Commons (public domain). Geese and ganders from Adobe Stock.