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Federal court on transgender hiring discrimination

A recent case out of the United States Court of Appeals for the Eighth Circuit, which hears cases out of Minnesota, highlights some interesting issues for cases alleging discrimination based on sexual orientation and gender stereotypes.

An applicant who was born female but self-identified as a man used his female name to apply for a job. He showed up at the interview wearing men's clothing, with his breasts bound and his hair cut short. The interviewer decided he was not a good candidate and he was told the company was not hiring.

He sued, claiming that he had been discriminated against on the basis of gender and sexual orientation. He said that his appearance at the interview did not conform with stereotypes about women should dress.

The Minnesota Human Rights Act protects employees in the state from discrimination based on multiple factors, including sexual orientation. Under the law, sexual orientation includes "having or being perceived as having a self-image or identity not traditionally associated with one's biological maleness or femaleness."

Title VII of the federal Civil Rights Act forbids discrimination on the basis of gender stereotyping, which was claimed in this case. However, federal law is silent about workplace protections for people based strictly on their sexual orientation.

The company disagreed with his claims, saying that their decision was based on qualifications. They argued that the interviewer did not even know the applicant was transgender, and that they didn't consider a woman dressing in men's clothing to be countering gender stereotypes.

The court sided with the employer, holding that it is not uncommon for women to wear men's clothing. The fact that the applicant wore men's clothing and had short hair was not enough to make a presumption that they knew his sexual orientation.

If you have been discriminated against on the basis of your gender consider speaking with an employment law attorney.

Source: Business Management Daily, "There's just no guessing about cross-dressing; Focus hiring on qualifications, not appearance," Jan. 7, 2013

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