Can Employers Discriminate Against Employees Based On Their Transgender Identity?

Having represented employees for decades, our labor lawyers in Sumter County, Florida know that recent decisions from the United States Supreme Court rarely curtail the power of employers or expand the rights of employees. The Court’s decision in Bostock v. Clayton County, Georgia, 590 U.S. 644 (2020) is a notable exception to the Court’s customary pro-employer jurisprudence. In that case, the Court addressed whether employers can lawfully fire employees simply for being homosexual or transgender. In resolving that issue, the Court was required to determine whether discrimination on the basis of sexual orientation or transgender status is a form sex discrimination prohibited by Title VII of the Civil Rights Act of 1964 (“Title VII”).

The Bostock Court ruled that discrimination against employees on the basis of sexual orientation or transgender status constitutes unlawful discrimination on the basis of sex in violation of Title VII. The Bostock Court’s ruling reversed decades of federal court decisions holding that Title VII provides no protection to employees based on their sexual orientation or transgender status. Indeed, just three years before the Court’s decision in Bostock, the Eleventh Circuit Court of Appeals in Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017) held that Title VII does not prohibit discrimination on the basis of sexual orientation.

In this article, our labor lawyers in Sumer County, Florida explain how the decision in Dawes v. State of Kansas,  Case No. 2;23-cv-02005 (9th Cir. 2024) illustrates the protection afforded to employees by Bostock.

Transgender Discrimination Lawsuit

In that case, an individual named Dawes brought an employment discrimination lawsuit against his former employer, the State of Kansas (the “State”). Dawes claims that the State discriminatorily fired him in violation of Title VII because he identifies as transgender.

Dawes worked as a Public Service Administrator as a civilian employee for the Kansas Highway Patrol (“KHP”). Dawes disclosed to three employees that he identified as transgender. Dawes also initiated a meeting with the Human Resources Director to discuss transitioning from a male identity to a female identity at work. The Human Resources Director contacted Dawes’ immediate supervisor, Jones, and other supervisory staff to hold a meeting regarding the necessary measures to accommodate Dawes’ requested transition.

On June 6, 2022, Dawes sent an email to a female co-worker describing his pleasure at her wearing heels and “expressing her femininity.” Interpreting Dawes’ email as sexual harassment, the co-worker sent Dawe’s email to a supervisor, Jones. The next day, Jones had the Professional Standard Unit initiate an administrative investigation into Dawes’ alleged harassment. That same day, the employee in charge of the investigation, DiLoreto, hand-delivered two letters advising Dawes of the investigation and warning him that failure to cooperate could subject him to disciplinary action. On June 9, DiLoreto mailed a letter to Dawes which instructed him to appear for an interview on June 13. The letter informed Dawes that he could bring an attorney to the interview.

Employer Ultimatum

On June 13, Dawes arrived for the interview without counsel. Before the interview began, DiLoreto provided Dawes with a Garrity/Lefkowitz Warning (the “Warning”). The Warning stated: “if you refuse to testify or to answer question relating to the performance of your official duties or fitness for duty, you will be subject to discipline which could result in your dismissal from the Kansas Highway Patrol.” DiLoreto notified Dawes that he needed to sign the Warning before the interview and emphasized that not signing the Warning would result in discipline.

Dawes claimed that he was not comfortable signing the Warning without an attorney present. When asked whether he was prepared to do the interview that day, Dawes repeatedly responded, “I can’t.” Dawes then asked how to proceed with the investigation process and requested having an attorney present during further meetings. Dawes also claimed that he was willing to cooperate once he had counsel. In response, DiLoreto emphasized that Dawes was not guaranteed another interview. Verbally accepting this fact, Dawes nevertheless maintained that he would not sign the Warning without counsel present. Shortly after, DiLoreto terminated the interview.

DiLoreto informed Jones that Dawes refused to participate in the interview. On June 14, Dawes called PSU and requested another interview. Although Jones considered terminating Dawes immediately, he scheduled another interview to take place on June 16. When asked during his deposition why he allowed this second interview, Jones claimed that he wanted to “give Dawes that grace to come in and allow him to come in and participate.” The June 16 interview proceeded without incident as Dawes cooperated fully and answered all questions. The PSU ultimately concluded that Dawes’ email to the co-worker violated KHP policies. Dawes, however, did not receive any discipline for his actions occurring on June 6, 2022.

Despite the investigation’s conclusion, Jones determined that Dawes’ refusal to sign the Warning on June 14 warranted termination. On July 7, the KHP fired Dawes, stating “the reason for the dismissal is your refusal to answer questions during an interview with the Professional Standards Unit on June 13, 2022.”

During his deposition, Jones asserted that the sole reason for Dawes’ termination was his refusal to answer questions on June 13, 2022. When asked what discipline Dawes would have received had the investigation run its normal course, Jones admitted that he would not have terminated Dawes. Jones also confirmed that the three-day delay caused by Dawes’ interview occurring on June 16 instead of June 13 did not impede the investigation.

Evidence Of Transgender Discrimination

The State filed a motion with the trial court seeking dismissal of Dawes’ transgender discrimination claim. The trial court denied the State’s motion for dismissal and ruled that Dawes was entitled to proceed to a jury trial on the issue whether he was fired because of his transgender status in violation of Title VII.

In denying the State’s motion for dismissal, the trial court focused on the “contradictory circumstances surrounding [Dawes’] termination.” The trial court observed that Dawes “clearly indicated during his first interview” that “he wanted to cooperate in the investigation with counsel present.” “Although [Dawes] initially refused to sign the Warning during the June 13 interview,” the trial court noted, “he also requested the opportunity for another interviewed.” The State, “specifically Jones, agreed.” “Thus, any difficulty in the investigation caused by [Dawes] refusal to participate on June 13,” the trial court reasoned, “would have resolved itself during [Dawes] subsequent interview on June 16.” Moreover, the trial court pointed out, “Dawes answered all questions and fully cooperated with the investigation—just not on June 13.” “To claim that [Dawes’] failure to answer questions or cooperate in the interview process was the reason for his termination,” the trial court determined, “when he cured that failure three days later is somewhat illogical.” “Rather,” the trial court pointed out, “once [Dawes] participate in that second interview, any practical basis for his termination based on his refusal to participate in the first interview dissipated.”

Based on this evidence, the trial court concluded that a jury could find that proffered reason for Dawes’ termination was a pretext and that the real reason was Dawes’ transgender identity.

Sumter County, FL Labor Lawyers

Based in Ocala, Florida and representing workers throughout Florida, our labor lawyers in Sumter County, Florida have fought for the rights of employees for more than twenty years. If you have experienced workplace discrimination or have questions about your employee rights, please contact our office for a free consultation with our labor lawyers in Sumter County, Florida. Our employee rights law firm takes employment discrimination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery, and our attorney’s fees come solely from the monetary award that you recover.