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Transgender protections finding a haven under federal law

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More courts are ruling transgender employees are protected under Title VII of the Civil Rights Act of 1964 and other federal laws, regardless of a jury verdict earlier this month in a U.S. Equal Employment Opportunity Commission case that held an employee’s transgender status was not a motivating factor in her discharge.

Factual questions about a fired employee’s credibility were likely behind the May 18 jury verdict in U.S. Employment Opportunity Commission v. Rent-A-Center East Inc., which found that Plano, Texas-based Rent-A-Center had not fired Megan Kerr because she is transgender, experts say.

Recent court decisions, though, have largely ruled that transgender people are protected from discrimination under federal law, according to experts.

They point to, among other court rulings, last week’s federal court decision in Virginia in Gavin Grimm v. Gloucester County School Board, which refused to dismiss litigation involving a transgender student’s bathroom use, and held he is protected by Title IX of the Education Amendments Act of 1972. 

The EEOC filed suit against Rent-A-Center in July 2016 charging the company fired Ms. Kerr on a pretext because it disapproved of her transition to female from male. The company said she was terminated because of her unauthorized use of a company truck for personal use.

The judge in the case, Colin S. Bruce, held in a September 2017 ruling denying Rent-A-Center’s summary judgment motion seeking dismissal of the case that “a reasonable factfinder could conclude that Kerr’s sex, specifically, her transgender status, caused her discharge.” But it also said her “credibility has been called into question by her changing accounts of why she was using the company vehicle.”

An EEOC spokeswoman had no comment.

Rent-A-Center attorney Stephanie Quincy, a partner with Quarles & Brady L.L.P. in Phoenix, said of the Kerr verdict: “I’m disappointed that this is the case the EEOC chose to bring” on this issue.

“We certainly support their goals protecting the rights of transgender people in the workplace,” but “the facts just were not there in this case,” she said. “I really wish the EEOC had chosen a better set of facts to bring such a case.”

“There were pretty significant differences in testimony about why (Ms. Kerr) was terminated,” said Jillian Weiss, a New York-based solo attorney, who represents LGBT people.

“The jury resolved the credibility question in favor of the employer,” she said. “It’s a signal that transgender people now get to be treated like any other employee” and “juries have a right to believe them or not, and I think that’s as fair a result as can be hoped for.”

The ruling’s significance is that “you win some and you lose some,” she said.

Anthony B. Haller, a partner with Blank Rome L.L.P. in Philadelphia, said, however, that testimony in the case included a former store manager’s assertion that a district manager had been seeking a pretext to fire Ms. Kerr.

“It’s reasonable to ask the question as to whether or not the jury was more predisposed to adopt the employer’s reasoning in the circumstance of this type of case, involving transgender discrimination, than perhaps some other form of discrimination,” he said.

The 6th U.S. Circuit Court of Appeals in Cincinnati ruled in favor of a transgender former funeral home worker on March 7 in Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes Inc., and some believe the issue will eventually be considered by the U.S. Supreme Court.

Experts also point to an April 4 ruling by the U.S. District Court in Houston that held Title VII protects transgender people, although the plaintiff still lost the case.

The case, Nicole C. Wittmer v. Phillips 66 Co., involved the Houston-based company’s withdrawal of a job offer to an applicant who then charged it was because she is transgender. The company said the withdrawal was because of a discrepancy in the employment history she had provided.

In its April 4 ruling granting Phillips summary judgment, the court said while Ms. Wittmer is protected under Title VII, she had not proven she was denied the job because she is transgender.

Discussing the transgender student bathroom case, Lisa A. Linsky, a partner with McDermott, Will & Emery L.L.P. in New York, said it is significant because it sends the message that transgender students “are entitled to the same types of civil liberties and protections under the constitution as gender-conforming students.”

“The trend is definitely in the direction” of protecting gender identity, sexual orientation and transgender, which, “connecting the dots,” is sexual stereotyping, said Eric B. Meyer, a partner with FisherBroyles L.L.P. in Cherry Hill, New Jersey.

Despite some change in approach by other federal agencies under the Trump administration, the EEOC has apparently not backstepped from pursuing transgender and other discrimination cases, experts say.

“There’s no indication that I’ve ever seen that the EEOC is pulling back from its position regarding protection to transgender people from discrimination,” said Ms. Weiss.