SUPPLEMENTAL STATEMENT OF INTERESTED PARTIES

Loretta Eure v. The Sage Corporation,

Case No. 14-51311, U.S. Court of Appeals for the Fifth Circuit,

Case No. 5:12-CV-1119, U.S. District Court for the Western District of Texas

The undersigned counsel of record certifies that the following listed persons and entities as described in the fourth sentence of 5th Cir. R. 28.2.1 have an interest in the outcome of this case. These representations are made in order that the judges of this court may evaluate possible disqualification or recusal.

1. U.S. Equal Employment Opportunity Commission

Amicus Curiae

2. P. David Lopez

Carolyn L. Wheeler

Lorraine C. Davis

Anne W. King

Attorneys for Amicus Curiae U.S. Equal Employment Opportunity Commission

s/ Anne W. King___________

Attorney of record for the

Equal Employment

Opportunity Commission

SUPPLEMENTAL STATEMENT OF INTERESTED PARTIES. i

TABLE OF CONTENTS. ii

TABLE OF AUTHORITIES. iii

STATEMENT OF INTEREST. 1

STATEMENT OF THE ISSUE. 1

STATEMENT OF THE CASE. 2

I. Statement of Facts. 2

II. District Court Decision. 8

SUMMARY OF THE ARGUMENT. 10

ARGUMENT. 11

I. Discrimination against transgender persons is cognizable as discrimination because of sex under Title VII. 11

II. Plaintiffs asserting transgender discrimination need not provide specific evidence of gender stereotyping. 16

III. A jury could conclude that Sage discriminated against Eure because of his sex 23

CONCLUSION.. 28

CERTIFICATE OF SERVICE

CERTIFICATE OF COMPLIANCE

ECF CERTIFICATE

TABLE OF AUTHORITIES

Cases

Alvarado v. Tex. Rangers,

492 F.3d 605 (5th Cir. 2007)…………………………………………………26, 27

Barnes v. City of Cincinnati,

401 F.3d 729 (6th Cir. 2005) ……………………………………………………..13

Chavez v. Credit Nation Auto Sales,

49 F. Supp. 3d 1163 (N.D. Ga. 2014) …………………………………………….15

Corley v. La. ex rel. Div. of Admin.,

498 F. App’x 448 (5th Cir. 2012) ………………………………………………...24

Doe v. Dekalb Cnty. Sch. Dist.,

145 F.3d 1441 (11th Cir. 1998) …………………………………………………..24

Doe v. United Consumer Fin. Servs., No. 1:01 CV 1112,

2001 WL 34350174 (N.D. Ohio Nov. 9, 2001)…………………………………...15

EEOC v. Boh Bros. Constr. Co., L.L.C.,

731 F.3d 444 (5th Cir. 2013) ………………………………………..8, 5, 18, 22, 23

Etienne v. Spanish Lake Truck & Casino Plaza, L.L.C.,

778 F.3d 473 (5th Cir. 2015) ……………………………………………………..25

Etsitty v. Utah Transit Auth.,

502 F.3d 1215 (10th Cir. 2007) ………………………………………………13, 21

Finkle v. Howard Cnty.,

12 F. Supp. 3d 780 (D. Md. 2014) ………………………………………………..14

Glenn v. Brumby,

663 F.3d 1312 (11th Cir. 2011) ………………………………………12, 15, 16, 23

Hart v. Lew,

973 F. Supp. 2d 561 (D. Md. 2013) ………………………………………………15

Hinson v. Clinch Cnty., Ga. Bd. of Educ.,

231 F.3d 821 (5th Cir. 2000) ……………………………………………………..24

Jones v. Robinson Prop. Grp., L.P.,

427 F.3d 987 (5th Cir. 2005) ……………………………………………………..25

Kastl v. Maricopa Cnty. Cmty. Coll. Dist.,

325 F. App’x 492 (9th Cir. 2009) ………………………………………………...13

Lopez v. River Oaks Imaging & Diagnostic Grp., Inc.,

542 F. Supp. 2d 653 (S.D. Tex. 2008) ……………………………………………14

McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973) ………………………………………………………...……26

Mitchell v. Axcan Scandipharm, Inc., No. Civ.A. 05-243,

2006 WL 456173 (W.D. Pa. Feb. 17, 2006) ……………………………………...15

Myers v. Cuyahoga Cnty.,

182 F. App’x 510 (6th Cir. 2006) ………………………………………………...13

Nichols v. Azteca Restaurant Enters., Inc.,

256 F.3d 864 (9th Cir. 2001) …………………………………………………22, 23

Oncale v. Sundowner Offshore Oil Servs., Inc.,

523 U.S. 75 (1998) ………………………………………………………...……..18

Price Waterhouse v. Hopkins,

490 U.S. 228 (1989) ……………………………………………………8, 11-12, 18

Rosa v. Park W. Bank & Trust Co.,

214 F.3d 213 (1st Cir. 2000) ……………………………………………………...13

Schroer v. Billington,

525 F. Supp. 2d 58 (D.D.C. 2007) ………………………………………………..19

Schroer v. Billington,

577 F. Supp. 2d 293 (D.D.C. 2008) ………………………………14, 19-20, 21, 22

Schwenk v. Hartford,

204 F.3d 1187 (9th Cir. 2000) ……………………………………………13, 17, 20

Smith v. City of Salem,

378 F.3d 566 (6th Cir. 2004) ……………………………………………..15, 16, 18

Sommers v. Budget Mktg., Inc.,

667 F.2d 748 (8th Cir. 1982) ……………………………………………………..17

Thompson v. City of Waco,

764 F.3d 500 (5th Cir. 2014) ……………………………………………………..24

Tronetti v. TLC HealthNet Lakeshore Hosp., No. 03-cv-375E(SC),

2003 WL 22757935 (W.D.N.Y. Sept. 26, 2003) …………………………………15

Ulane v. E. Airlines,

742 F.2d 1081 (7th Cir. 1984) ……………………………………………………17

Willis v. Cleco Corp.,

749 F.3d 314 (5th Cir. 2014) …………………………………………………26, 27

Young v. City of Houston,

906 F.2d 177 (5th Cir. 1990) ……………………………………………………..25

Statutes

42 U.S.C. §§ 2000e et seq.………………………………………………………....1

42 U.S.C. § 2000e-2(a)(1) ………………………………………………………..11

Administrative Materials

Lusardi v. McHugh, Appeal No. 0120133395

(EEOC Apr. 1, 2015) ………………………………………………………..........16

Macy v. Holder, Appeal No. 0120120812,

2012 WL 1435995 (EEOC Apr. 20, 2012) ………………………….........16, 17, 23

STATEMENT OF INTEREST

The U.S. Equal Employment Opportunity Commission (“EEOC” or “Commission”) is the primary agency charged by Congress with administering, interpreting, and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This appeal raises the issue of whether disparate treatment of an employee because he is transgender is discrimination “because of … sex” under Title VII. The district court concluded that individuals alleging discrimination based on transgender status must provide additional evidence of gender stereotyping, which conflicts with the Commission’s view of Title VII. This appeal also raises further questions relating to the merits of Appellant’s Title VII claim. Because these issues are important to the effective enforcement of Title VII, the Commission respectfully offers its views to the Court. See Fed R. App. P. 29(a).

STATEMENT OF THE ISSUE

Whether a reasonable jury could determine that Appellee Sage Corporation discriminated against Appellant Lorenzo (Loretta) Eure because he is transgender.

STATEMENT OF THE CASE

I. Statement of Facts [1]

Appellant Lorenzo Eure, formerly known as Loretta Eure, was an instructor at Appellee Sage Corporation’s (“Sage”) San Antonio, Texas truck driving school, beginning around December 2010. ROA.326; ROA.664 (RE.T5) (Eure Dep. 43:11-19; Eure Decl. ¶ 2). He was paid on an hourly basis, and his responsibilities included conducting classroom training and providing on-the-road training in truck driving. ROA.326 (Eure Dep. 43:16-25). Eure worked part time, about 26 to 28 hours a week, but he was told he would soon receive additional hours when the San Antonio school launched expanded services for Sanjel, Inc., a long-time client of Sage. ROA.239; ROA.326-27 (Campanian Aff. ¶ 6; Eure Dep. 43:20-44:11).

Eure is transgender: his gender identity (male) is different from the sex assigned to him at birth (female). ROA.665 (RE.T5) (Eure Decl. ¶ 4). When Eure worked at Sage, he presented as a male and he had taken steps towards transitioning from female to male (including a hysterectomy, mastectomy, and testosterone therapy) before starting at Sage. ROA.309-10; ROA.355; ROA.392; ROA.665 (RE.T5) (Eure Dep. 26:3-27:9; 72:13-24; Eure Dep. Ex. 1; Eure Decl. ¶ 4). Eure was known as “Loretta Eure” when he worked at Sage and later changed his name to “Lorenzo Eure.” ROA.288-89 (Eure Dep. 5:8-6:2).

Margie Brandon, Eure’s supervisor, was School Director for Sage’s San Antonio school, beginning in May 2010. ROA.670 (RE.T7) (Brandon Decl. ¶ 1). Brandon interviewed Eure for the instructor position and recommended hiring him. ROA.460-62; ROA.568 (Brandon Dep. 42:16-44:9; 150:11-20). Sage’s Safety Manager approved Eure’s hire based on a background check and a Department of Transportation assessment. ROA.569; ROA.671 (RE.T7) (Brandon Dep. 151:1-25; Brandon Decl. ¶ 3).

In March 2011, Sage’s Carmella Campanian visited the San Antonio school in conjunction with Sage’s expansion of driver training services for the Sanjel company. ROA.239 (Campanian Aff. ¶ 6). Campanian introduced herself to the San Antonio school staff as Sage’s co-founder and Vice President. ROA.496; ROA.667 (RE.T6); ROA.670 (RE.T7) (Brandon Dep. 78:10-15; Solis Decl. ¶ 4; Brandon Decl. ¶ 2). Campanian, who is located in Montana, served as the National Project Director in charge of the Sanjel driver training program. ROA.238-39 (Campanian Aff. ¶¶ 2, 6). Sage has provided driver training services to Sanjel since 1994, and in June 2010 Sage entered into an expanded contract with Sanjel, which included launching driver training for Sanjel at the San Antonio school. ROA.239 (Campanian Aff. ¶¶ 6-7) (describing “multi-million dollar expansion”). Before Campanian’s visit, Brandon spoke to Campanian by phone on one occasion, and found her “pushy” and “abrasive” to a degree that made Brandon “uncomfortable.” ROA.487-93 (Brandon Dep. 69:22-75:1). Brandon reported her impression of Campanian to her own supervisor, Barbara Blake. ROA.488 (Brandon Dep. 70:8-14). Blake acknowledged that Campanian “is very difficult to work with,” but warned Brandon, “You’re on your own on that one.” ROA.488 (Brandon Dep. 70:8-14).

Brandon testified that Campanian expressed animosity towards Eure soon after her arrival at the San Antonio school, on March 29. ROA.494-96; ROA.671 (RE.T7) (Brandon Dep. 76:5-78:9; Brandon Decl. ¶ 3). Campanian was looking outside the Sage office when she exclaimed, “What the hell is that? What the hell is that out there?” ROA.494; ROA.671 (RE.T7) (Brandon Dep. 76:5-19; Brandon Decl. ¶ 3). Brandon realized that Campanian was referring to Eure, who was working with a student on a truck. ROA.494-95; ROA.671 (RE.T7) (Brandon Dep. 76:20-77:1; Brandon Decl. ¶ 3). Brandon responded that it was Loretta Eure, a Sage instructor. ROA.494-95 (Brandon Dep. 76:20-77:1). Campanian declared, “We don’t hire cross-genders in this company,” and asked who made the decision to employ Eure, inquiring, “[W]ho the hell hired that?” and querying whether Brandon herself hired Eure. ROA.495; ROA.671 (RE.T7) (Brandon Dep. 77:2-18; Brandon Decl. ¶ 3). Brandon responded that Eure was qualified for the instructor position and explained that Sage’s safety department approved the hire. ROA.495; ROA.671 (RE.T7) (Brandon Dep. 77:5-8; Brandon Decl. ¶ 3).

Campanian indicated that Brandon would face consequences for employing Eure, asserting, “[W]e will deal with you seriously for hiring that.” ROA.495; ROA.671 (RE.T7) (Brandon Dep. 77:2-10; Brandon Decl. ¶ 3). Maria Solis, Brandon’s administrative assistant, witnessed this exchange and confirmed Brandon’s account. ROA.667-68 (RE.T6) (Solis Decl. ¶¶ 5, 7, 9). Afterwards, Brandon called Blake, her supervisor, to report Campanian’s comments about Eure. ROA.499-500 (Brandon Dep. 81:20-82:8).

On March 30, Campanian continued berating Brandon, repeating the admonishment that, “[W]e’re going to deal with you seriously for hiring” Eure, and emphasizing that, “I told you yesterday we don’t hire cross-genders.” ROA.507-08 (Brandon Dep. 89:17-90:4). Brandon asked how Campanian planned to “deal with” her, and Campanian responded, “I haven’t made the decision yet. I have to talk to [Sage President Gregg] Aversa. He’s still traveling, and I can’t get a hold [of] him.” ROA.508 (Brandon Dep. 90:5-10).

After this conversation, Campanian made some phone calls; Brandon assumed that she spoke with Aversa, and Campanian acknowledged speaking to Aversa that day. ROA.247; ROA.508 (Campanian Aff. ¶ 26; Brandon Dep. 90:11-12). Then, Campanian called Solis, Brandon’s administrative assistant, into Brandon’s office and told Brandon and Solis to sit down. ROA.508; ROA.668 (RE.T6); ROA.671-72 (RE.T7) (Brandon Dep. 90:11-14; Solis Decl. ¶ 13; Brandon Decl. ¶ 5). Campanian asked Brandon her salary, and Brandon—shocked that Campanian had raised a highly personal question in front of Solis—did not immediately respond. ROA.508; ROA.668 (RE.T6); ROA.671-72 (RE.T7) (Brandon Dep. 90:15-21; Solis Decl. ¶ 13; Brandon Decl. ¶ 5). Campanian then announced, “[O]ur decision to deal with you seriously is to cut your pay in half.” ROA.508; ROA.668 (RE.T6); ROA.671-72 (RE.T7) (Brandon Dep. 90:23-25; Solis Decl. ¶ 13; Brandon Decl. ¶ 5). Brandon protested that cutting her pay would be illegal. ROA.509; ROA.668 (RE.T6); ROA.671-72 (RE.T7) (Brandon Dep. 91:1-6; Solis Decl. ¶ 13; Brandon Decl. ¶ 5).

Also on March 30, Campanian created a schedule for the San Antonio school instructors that incorporated the Sanjel students. ROA.512-13; ROA.672 (RE.T7) (Brandon Dep. 94:22-95:22; Brandon Decl. ¶ 6). Brandon reviewed this schedule and told Campanian there was a mistake: Campanian failed to include Eure on the schedule. ROA.513; ROA.672 (RE.T7) (Brandon Dep. 95:3-10; Brandon Decl. ¶ 6). Campanian retorted, “Are you stupid? … I’m not putting her on the schedule. Those Sanjel people, they’ll eat her up alive.” ROA.513 (Brandon Dep. 95:11-14). Brandon asked Campanian if she was firing Eure. ROA.513 (Brandon Dep. 95:15). Campanian said no, but clarified, “We’re just not going to give her any hours. Just won’t put her on the schedule.” ROA.513 (Brandon Dep. 95:15-18). Then, Campanian asked Brandon whether she understood the consequences she faced for hiring Eure. ROA.672 (RE.T7) (Brandon Decl. ¶ 2). When Eure saw the schedule, he asked Brandon why he was excluded from the schedule and whether he had been fired. ROA.513-14 (Brandon Dep. 95:23-96:5).

Documentary evidence corroborates Brandon’s account that Campanian reduced Eure’s hours. One version of the instructor schedule for April 4 through April 10 reflects that Eure was scheduled to work six shifts, while a second version of that week’s schedule omits all of Eure’s shifts. Compare ROA.414 with ROA.415. Also, one version of the instructor schedule for March 28 through April 3 reflects possible shifts for Eure on March 31 and April 3, while a second version of that week’s schedule allots those shifts to another instructor. Compare ROA.412 with ROA.413.

Sage acknowledged that Campanian created an instructor schedule and reduced Eure’s hours but provided a different explanation of Eure’s exclusion from the schedule. Campanian claimed that, on March 31, she scheduled a meeting for the next morning (April 1) to determine instructors’ availability for the following week. ROA.249-50 (Campanian Aff. ¶ 29). According to Campanian, Eure had called Campanian earlier on March 31 to report that he had the stomach flu. ROA.249 (Campanian Aff. ¶ 28). Campanian claimed that she tried to contact Eure at home the afternoon of March 31 to apprise him of the instructors’ meeting, but could not reach him. ROA.249-50 (Campanian Aff. ¶ 29). Campanian asserted that she posted the schedule for the following week late on April 1, and that she excluded Eure from the schedule because she could not confirm his availability. ROA.249-50 (Campanian Aff. ¶ 29).

Both Brandon and Eure resigned as a result of Campanian’s conduct. Brandon did not return to work on March 31 and submitted a formal resignation to Sage President Aversa, while Eure resigned on April 4. ROA.343-44; ROA.520-22 (Eure Dep. 60:22-61:1; Brandon Dep. 102:19-104:20).

II. District Court Decision

The district court granted summary judgment to Sage on Eure’s sex discrimination claim on the rationale that Eure could not show that Sage discriminated against him “because of … sex.” The parties’ summary judgment briefing had not even raised this issue, see ROA.844 n.7 (RE.T4), but the district court found it dispositive.

The district court acknowledged that, under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), “[i]t is well established that ‘a plaintiff can satisfy Title VII’s because-of-sex requirement with evidence of a plaintiff’s perceived failure to conform to traditional gender stereotypes.’” ROA.840 (RE.T4) (quoting EEOC v. Boh Bros. Constr. Co., L.L.C., 731 F.3d 444, 454 (5th Cir. 2013) (en banc)). The district court further recognized that transgender plaintiffs have successfully relied on Price Waterhouse to bring sex discrimination claims under Title VII. ROA.842 (RE.T4).

However, the district court concluded that Eure was required to provide additional evidence of gender stereotyping to bring a Title VII claim. ROA.842 (RE.T4). The district court asserted that courts applying Price Waterhouse “have generally required evidence of gendered statements or acts that target a plaintiff’s conformance with traditional conceptions of masculinity or femininity.” ROA.841 (RE.T4). Along the same lines, the district court stated that “courts have been reluctant to extend the sex stereotyping theory to cover circumstances where the plaintiff is discriminated against because [of] the plaintiff’s status as a transgender man or woman, without any additional evidence related to gender stereotype non-conformity.” ROA.842 (RE.T4).

In this case, the district court asserted, “[a]ll of the testimony that Eure has presented related to Campanian’s animus couches Campanian’s alleged discrimination in terms specifically related to Eure’s status as a transgender person, not in terms related to [Eure’s] conformance with gender stereotypes.” ROA.844 (RE.T4). The district court viewed Eure’s evidence as consisting of two items: 1) Brandon’s testimony that Campanian asked “What is that and who hired that?” when she saw Eure; and 2) Brandon’s testimony that Campanian asked whether she (Brandon) understood the consequences for hiring a “cross-gender.” ROA.844 (RE.T4). The district court held that, “[b]ecause Eure has failed to present evidence showing that the discrimination was motivated by her [Eure’s] failure to act as a stereotypical woman would, Eure has not presented a cognizable gender stereotyping claim and cannot succeed in showing that the discrimination … claim that she [Eure] presents is ‘because of sex’ as Title VII requires.” ROA.845 (RE.T4).

Having resolved Eure’s sex discrimination claim on that basis, the district court did not reach the merits of his claim. However, the district court determined that Campanian’s reduction of Eure’s hours—and Eure’s corresponding reduction in income—could be a materially adverse action for Eure’s retaliation claim (which is not at issue in this appeal). ROA.850-52 (RE.T4).

SUMMARY OF THE ARGUMENT

In granting summary judgment to Sage on Eure’s disparate treatment claim, the district court incorrectly interpreted the scope of Title VII’s protections against discrimination “because of … sex.” In the Commission’s view, Title VII encompasses discrimination against transgender persons because the statute provides that gender must not play a role in employment decisions. The district court erred in holding that no reasonable jury could find that Sage discriminated against Eure based on his non-conformance with gender stereotypes. The district court also erred in determining that transgender plaintiffs must present additional evidence of gender stereotyping in order to establish a cognizable Title VII claim. Gender stereotypes inherently drive discrimination against transgender persons, so it is not necessary to identify specific evidence of stereotyping.

Here, the record presents genuine issues of fact as to whether Sage discriminated against Eure “because of … sex.” A jury could reasonably infer that Campanian reduced Eure’s work hours because he is transgender—or “cross-gender” in Campanian’s words. Or, a jury could determine that Campanian reduced Eure’s hours because she believed he failed to conform with his assigned sex, and preferred that he look and act female rather than present as male.

ARGUMENT

I. Discrimination against transgender persons is cognizable as discrimination because of sex under Title VII.[2]

Title VII makes it unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The Supreme Court has clarified that the phrase “because of … sex” means “that gender must be irrelevant to employment decisions.” Price Waterhouse, 490 U.S. at 240. The plaintiff in Price Waterhouse was a female senior manager who was being considered for partnership in an accounting firm. Id. at 231-32. There was evidence that she was denied partnership because she was considered not feminine enough in dress and behavior. Id. at 235. Her evaluators suggested that she could improve her chances for partnership if she were less “macho” and learned to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Id. The Court held that the evaluation amounted to prohibited sex stereotyping, explaining that “[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Id. at 251 (citations omitted). The court held that Title VII barred not just discrimination because the plaintiff was a woman, but also discrimination based on the employer’s belief that she was not acting like a woman. Id. at 250-51.

After Price Waterhouse, the courts of appeals have recognized that a transgender plaintiff may state a claim for discrimination because of sex if the defendant’s action was motivated by the plaintiff’s nonconformance with a sex stereotype or norm. See Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011) (stating that “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender”); Smith v. City of Salem, 378 F.3d 566, 572-73 (6th Cir. 2004) (holding that an adverse action taken because of transgender plaintiff’s failure to conform to sex stereotypes concerning how a man or woman should look and behave constitutes unlawful gender discrimination); Schwenk v. Hartford, 204 F.3d 1187, 1201-02 (9th Cir. 2000) (concluding that a transsexual prisoner had stated a viable sex discrimination claim under the Gender Motivated Violence Act because “[t]he evidence offered … show[s] that [the assault was] motivated, at least in part, by Schwenk’s gender—in this case, by her assumption of a feminine rather than a typically masculine appearance or demeanor” and noting that its analysis was equally applicable to claims brought under Title VII);[3] but see Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1222-24 (10th Cir. 2007) (declining to adopt a per se rule that transgender discrimination always amounts to sex discrimination “at this point in time and with the record and arguments before this court,” but not reaching whether Title VII protects “transsexuals who act and appear as a member of the opposite sex”).

Additionally, numerous district courts, including one from within the Fifth Circuit, have concluded that transgender discrimination is cognizable under Title VII. See, e.g., Finkle v. Howard Cnty., 12 F. Supp. 3d 780, 788 (D. Md. 2014) (holding that an officer’s claim that she was discriminated against because of her transgender status was a “cognizable claim of sex discrimination”); Schroer v. Billington, 577 F. Supp. 2d 293, 305-06 (D.D.C. 2008) (“While I would therefore conclude that Schroer is entitled to judgment based on a Price Waterhouse-type claim for sex stereotyping, I also conclude that she is entitled to judgment based on the language of the statute itself.”); Lopez v. River Oaks Imaging & Diagnostic Grp., Inc., 542 F. Supp. 2d 653, 659-61 (S.D. Tex. 2008) (“Title VII and Price Waterhouse … do not make any distinction between a transgendered litigant who fails to conform to traditional gender stereotypes and an ‘effeminate’ male or ‘macho’ female who, while not necessarily believing himself or herself to be of the opposite gender, nonetheless is perceived by others to be in nonconformity with traditional gender stereotypes.”).[4]

Likewise, the Fifth Circuit, outside the transgender discrimination context, has recognized that “a plaintiff can satisfy Title VII’s because-of-sex requirement with evidence of a plaintiff’s perceived failure to conform to traditional gender stereotypes.” Boh Bros., 731 F.3d at 454 (same-sex harassment case). In reaching its holding, the en banc court relied in part on two transgender discrimination cases, Smith, 378 F.3d at 573, and Glenn, 663 F.3d at 1316. See Boh Bros., 731 F.3d at 454 n.4.

II. Plaintiffs asserting transgender discrimination need not provide specific evidence of gender stereotyping.

Plaintiffs alleging that their employers discriminated against them because they are transgender need not provide specific evidence of gender stereotyping because “consideration of gender stereotypes will inherently be part of what drives discrimination against a transgendered individual.” Macy v. Holder, Appeal No. 0120120812, 2012 WL 1435995, at *8 (EEOC Apr. 20, 2012); see also Lusardi v. McHugh, Appeal No. 0120133395, at *11 n.6 (EEOC Apr. 1, 2015) (explaining that “Macy [] held that discrimination on the basis of transgender status is per se sex discrimination” and found “that a plaintiff need not have specific evidence of gender stereotyping”). As the Eleventh Circuit has emphasized, “[a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. [T]he very acts that define transgender people as transgender are those that contradict stereotypes of gender-appropriate appearance and behavior.” Glenn, 663 F.3d at 1316 (citations omitted) (second alteration in original). And, as the Sixth Circuit explained, discriminating against an individual because of his or her transgender status inherently entails sex-based considerations. See Smith, 378 F.3d at 574-75 (“[D]iscrimination against a plaintiff who is transsexual—and therefore fails to act and/or identify with his or gender—is no different from the discrimination directed against Ann Hopkins in Price Waterhouse, who, in sex-stereotypical terms, did not act like a woman.”). Therefore, “[w]hen an employer discriminates against someone because the person is transgender, the employer has engaged in disparate treatment ‘related to the sex of the victim.’” Macy, 2012 WL 1435995, at *7 (quoting Schwenk, 204 F.3d at 1202).

In this case, the district court erred in holding that plaintiffs who allege transgender discrimination are required to provide specific evidence of gender stereotyping. The district court maintained, “[C]ourts have been reluctant to extend the sex stereotyping theory to cover circumstances where the plaintiff is discriminated against because [of] the plaintiff’s status as a transgender man or woman, without any additional evidence related to gender stereotype non-conformity.” ROA.842 (RE.T4). However, in the Commission’s view, “evidence of gender stereotyping is simply one means of proving sex discrimination” in transgender discrimination claims under Title VII. Macy, 2012 WL 1435995, at *8. Moreover, the opinions on which the district court relied do not squarely illustrate courts’ “reluctan[ce]” to apply Title VII to discrimination based on the plaintiff’s status as a transgender person.

First, the district court relied on two opinions, Ulane v. Eastern Airlines, 742 F.2d 1081 (7th Cir. 1984), and Sommers v. Budget Marketing, Inc., 667 F.2d 748 (8th Cir. 1982), which pre-date Price Waterhouse. The Supreme Court has since rejected the two rationales these courts used to decline to extend protections to transgender individuals—a narrow definition of “sex” and a refusal to expand protections beyond the protected groups originally considered by Congress. To begin, as noted, Price Waterhouse makes clear that Title VII does not simply prohibit discrimination based on biological sex, but also “the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” 490 U.S. at 251 (citations omitted); see also Smith, 378 F.3d at 573 (“[T]he approach in [] Sommers[] and Ulane … has been eviscerated” by Price Waterhouse’s holding that “Title VII’s reference to ‘sex’ encompasses both the biological differences between men and women, and gender discrimination, that is, discrimination based on a failure to conform to stereotypical gender norms.”). Moreover, in Oncale v. Sundowner Offshore Oil Services, Inc., 523 U.S. 75 (1998), in ruling that same-sex harassment is actionable, the Supreme Court explicitly rejected the notion that Title VII only proscribes types of discrimination specifically contemplated by Congress. Id. at 79-80 (explaining that “statutory prohibitions often go beyond the principal evil [they were passed to combat] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed”); see also Boh Bros., 731 F.3d at 454 (same).

Second, the district court cites Schroer v. Billington, Schwenk v. Hartford, and Etsitty v. Utah Transit Authority to support its position, but the court’s reliance on those opinions is misplaced. As described above, Schroer held that a transgender plaintiff was “entitled to judgment based on a Price Waterhouse-type claim for sex stereotyping” and “based on the language of the statute itself”; that is, because discrimination predicated on an individual’s transgender status is “discrimination … because of sex.” 577 F. Supp. 2d at 305-06. The district court quoted the following language from Schroer:

While I agreed with the Sixth Circuit [in Smith v. Salem] that [] transsexuality is not a bar to a sex stereotyping claim, I took the position that ‘such a claim must actually arise from the employee’s appearance or conduct and the employer’s stereotypical perceptions.’ In other words, ‘a Price Waterhouse claim could not be supported by facts showing that [an adverse employment action] resulted solely from [the plaintiff’s] disclosure of her gender dysphoria.’

ROA.843 (RE.T4) (quoting Schroer, 577 F. Supp. 2d at 304 (quoting Schroer v. Billington, 525 F. Supp. 2d 58, 63 (D.D.C. 2007) (emphasis and third and fourth alteration in original)). However, the district court neglected to explain that, in the quoted passage, the Schroer court is describing the position it took in a prior opinion. The Schroer court makes clear that it subsequently changed its position based on “the development of the factual record that is now before me.” 577 F. Supp. 2d at 304. Schroer goes on to conclude, “Ultimately, I do not think it matters for purposes of Title VII liability whether [the employer] withdrew its offer of employment because it perceived Schroer to be an insufficiently masculine man, an insufficiently feminine woman, or an inherently gender-nonconforming transsexual.” Id. at 305. In summary, the district court failed to acknowledge that the Schroer court revised its understanding of Title VII and determined that a transgender plaintiff may state a claim “based on the language of the statute itself.” Id. at 305-06.

Similarly, the district court quotes language from Schwenk without acknowledging its full context, citing a passage that states, “[w]hat matters, for the purpose of this part of the Price Waterhouse analysis, is that in the mind of the perpetrator the discrimination is related to the sex of the victim: here, for example, the perpetrator’s actions stem from the fact that he believed that the victim was a man who ‘failed to act like’ one.” ROA.842-43 (RE.T4) (quoting Schwenk, 204 F.3d at 1201-02). But, as explained previously, Schwenk held that a prisoner stated a cognizable sex discrimination claim under the Gender Motivated Violence Act by alleging that an assault was “motivated, at least in part, by [her] gender,” that is, “by her assumption of a feminine rather than a typically masculine appearance or demeanor.” 204 F.3d at 1202; see also id. (explaining that the same reasoning applies under Title VII). Schwenk makes clear that discrimination based on a plaintiff’s “assumption of a feminine rather than typically masculine appearance or demeanor” is equivalent to discrimination based on a “belie[f] that [a plaintiff] was a man who ‘failed to act like’ one.” Therefore, Schwenk does not support the district court’s position that a transgender plaintiff must provide “additional evidence related to gender stereotype non-conformity,” ROA.842 (RE.T4), to establish a sex discrimination claim.

Moreover, Etsitty is weak support for the district court’s position. While Etsitty declined to adopt a per se rule that transgender discrimination is discrimination “because of … sex,” the Tenth Circuit acknowledged that other courts had relied on Price Waterhouse to “recognize a cause of action for [] transsexuals claiming protection under Title VII,” although it did not reach that question itself. 502 F.3d at 1223-24. Further, Etsitty relied on decisions rendered before Price Waterhouse and Oncale—including Ulane and Sommers—which, for the reasons discussed above, see supra at 17-18, are no longer viable. See Etisitty, 502 F.3d at 1221.

Additionally, underpinning the Etsitty court’s rejection of a broader per se rule was its interpretation of Title VII as prohibiting discrimination against men or women, but not against individuals who change their sex. See 502 F.3d at 1222 (emphasizing a “traditional binary conception of sex” and “two starkly defined categories of male and female”). The court’s reasoning is flawed, as the Schroer decision highlights that discrimination against someone for changing genders is itself evidence of sex discrimination. 577 F. Supp. 2d at 305-06. Schroer analogized to a religious conversion: an employer that fires an individual for converting from Christianity to Judaism, and that harbors no bias against Christians or Jews but only converts, has discriminated “because of religion.” Id. at 306. The court concluded that “[n]o court would take seriously the notion that ‘converts’ are not covered by the statute. Discrimination ‘because of religion’ easily encompasses discrimination because of a change of religion.” Id. (emphasis in original). It follows that discrimination against transgender individuals—those who have changed their gender expression—“is literally discrimination ‘because of … sex.’” Id. at 302.

The district court also maintained that “courts have generally required evidence of gendered statements or acts that target a plaintiff’s conformance with traditional conceptions of masculinity or femininity.” ROA.841 (RE.T4). To support its assertion, the district court relied on EEOC v. Boh Brothers and Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (9th Cir. 2001), which both involved Title VII claims alleging male employees were harassed because they failed to conform to the harassers’ gender stereotypes. See Boh Brothers, 731 F.3d at 449; Nichols, 256 F.3d at 869. It is certainly accurate that both Boh Brothers and Nichols involved “evidence of gendered statements or acts that target[ed] [the] [employees’] conformance with traditional conceptions of masculinity.” But in those cases, such evidence was integral to demonstrating that harassment occurred “because of … sex.” See Boh Bros., 731 F.3d at 457; Nichols, 256 F.3d at 874. It does not follow from Boh Brothers and Nichols that a transgender individual—who is “defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes,” Glenn, 663 F.3d at 1316—must provide such evidence. Again, “evidence of gender stereotyping is simply one means of proving sex discrimination” in transgender and other sex discrimination claims. Macy, 2012 WL 1435995, at *8.

III. A jury could conclude that Sage discriminated against Eure because of his sex.

The record evidence presents a genuine dispute of fact as to whether Sage discriminated against Eure “because of … sex.” A reasonable jury could infer that Campanian correctly understood that Eure was transgender, given Campanian’s disparagement of “cross-genders” in reference to Eure. ROA.495. Or, a reasonable jury could infer—also based on Campanian’s stated animus towards “cross-genders”—that Campanian perceived Eure as non-conforming with his assigned sex (female), and that Campanian expected or preferred that Eure look and act female, rather than dressing and otherwise presenting as male. See ROA.309-10; ROA.355; ROA.392; ROA.495; ROA.665 (RE.T5).

To begin, a jury could determine that Eure experienced an adverse employment action. For example, as Brandon testified and Campanian acknowledged, Campanian entirely excluded Eure from the instructor schedule, eliminating his work hours. ROA.249-50; ROA.414-15; ROA.512-13; ROA.672 (RE.T7). The district court also recognized that the record indicated that Campanian reduced Eure’s work hours. ROA.850-52 (RE.T4). Eure was paid by the hour, ROA.326, so the reduction in hours was an adverse employment action that directly affected his compensation. See Thompson v. City of Waco, 764 F.3d 500, 503 (5th Cir. 2014) (“[A]dverse employment actions consist of ‘ultimate employment decisions’ such as … compensat[ion].”); see also Hinson v. Clinch Cnty., Ga. Bd. of Educ., 231 F.3d 821, 829 (5th Cir. 2000) (reduction in pay is adverse) (citing Doe v. Dekalb Cnty. Sch. Dist., 145 F.3d 1441, 1448 (11th Cir. 1998)); Corley v. La. ex rel. Div. of Admin., 498 F. App’x 448, 450 (5th Cir. 2012) (treating “reduction in pay equal to a one-day suspension” as an “ultimate employment decision”). Eure’s removal from the schedule may also be characterized as a “loss of job responsibilities . . . [that is] so significant and material that it rises to the level of an adverse employment action.” Thompson, 764 F.3d at 504.[5]

Eure may rely on direct or circumstantial evidence to show that Campanian discriminated against him by reducing his hours based on his gender-nonconformity. Campanian’s statements maligning transgender individuals—and Eure in particular—provide direct evidence of discrimination because they were “(1) related to the plaintiff’s protected characteristic; (2) proximate in time to the challenged employment decision; (3) made by an individual with authority over the challenged employment decision; and (4) related to the challenged employment decision.” Etienne v. Spanish Lake Truck & Casino Plaza, L.L.C., 778 F.3d 473, 476 (5th Cir. 2015). Here, Campanian’s admonishment to Brandon that “we don’t hire cross-genders in this company” is directly related to Eure’s protected characteristic: his gender. ROA.495. A supposed ban on employing “cross-genders” “prove[s], ‘without inference or presumption, that [gender] was a basis in employment decisions’” at Sage. Etienne, 778 F.3d at 476 (quoting Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 993 (5th Cir. 2005)). The record indicates that Campanian expressed hostility towards Eure and his gender shortly before reducing Eure’s hours. ROA.495; ROA.512-13. Campanian had authority over the decision to reduce Eure’s hours; in fact, she created the schedule that omitted Eure’s hours. ROA.249-50; ROA.512-13. Finally, Campanian’s statements are related to the reduction in Eure’s hours. Campanian expressed hostility to employing transgender individuals, exclaiming, “Who the hell hired that?” and telling Brandon she would “deal with her seriously for hiring that.” ROA.495; ROA.671 (RE.T7). Campanian’s statements made at the time she reduced Eure’s hours reflected this same hostility to employing transgender persons: “We’re just not going to give [Eure] any hours. Just won’t put [Eure] on the schedule.” ROA.513.

Alternatively, Eure may rely on circumstantial evidence under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Under McDonnell Douglas, Eure may create an initial presumption of intentional discrimination by establishing a prima facie case. Alvarado v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir. 2007). On this record, Eure easily satisfies the four prongs of the prima facie case. See Willis v. Cleco Corp., 749 F.3d 314, 320 (5th Cir. 2014). First, for the reasons explained above, see supra at 23, Eure is “a member of a protected group” based on his gender. Willis, 749 F.3d at 320. Second, Eure “was qualified for the [instructor] position”—a fact Sage does not seriously contest. Id. Third, Eure “suffered [an] adverse action”: a reduction in hours and pay. Id. Fourth, by reducing Eure’s hours, Sage “treated [Eure] less favorably than other similarly situated employees outside the protected group … under nearly identical circumstances.” Id. The other San Antonio school instructors held the same position as Eure, and their hours were listed on the same schedule. See, e.g., ROA.412-14.

Assuming Sage meets its burden of articulating a legitimate, nondiscriminatory justification for reducing Eure’s hours, Eure may rebut Sage’s justification in one of two ways. Alvarado, 492 F.3d at 611. First, Eure may show that even if Sage’s explanation were true, discrimination also motivated Sage. Id. Here, given Campanian’s insistence that Sage does not hire “cross-genders,” a jury could determine that Eure’s gender (or non-conformance with gender stereotypes) motivated Campanian’s decision to reduce his hours, regardless of any other justification Sage provides. Second, Eure may establish that Sage’s reason is pretext for discrimination. Id. For example, if Sage asserts that Campanian omitted Eure from the schedule because Eure did not attend the alleged April 1 scheduling meeting, Eure could call that justification into question by pointing out that Campanian only scheduled the meeting the day before (when Eure was not present), and emphasizing that a jury could doubt Campanian’s assumption that Eure was not available to work the following week. At a minimum, Brandon’s and Campanian’s divergent descriptions of how Campanian excluded Eure from the schedule raise a genuine issue of material fact supporting Eure’s pretext argument.

CONCLUSION

For the reasons discussed above, the Commission respectfully urges this Court to reverse the district court’s grant of summary judgment.

Respectfully submitted,

P. DAVID LOPEZ s/ Anne W. King_____

General Counsel ANNE W. KING

Attorney

CAROLYN L. WHEELER U.S. EQUAL EMPLOYMENT

Acting Associate General Counsel OPPORTUNITY COMMISSION

Office of General Counsel

LORRAINE C. DAVIS 131 M St. NE, Fifth Floor

Assistant General Counsel Washington, DC 20507

(202) 663-4699

anne.king@eeoc.gov

[1] Except for the record citations, the Statement of Facts is nearly identical to the Statement of Facts in the EEOC’s amicus brief in Brandon v. The Sage Corporation, No. 14-51320 (5th Cir.).

[2] The EEOC understands the term “transgender” to refer broadly to a person whose gender identity or expression is different from the sex assigned to him or her at birth.

[3] See also Kastl v. Maricopa Cnty. Cmty. Coll. Dist., 325 F. App’x 492, 493 (9th Cir. 2009) (concluding that, after Price Waterhouse, “it is unlawful to discriminate against a transgender (or any other) person because he or she does not behave in accordance with an employer’s expectations for men or women”); Myers v. Cuyahoga Cnty., 182 F. App’x 510, 519 (6th Cir. 2006) (concluding that “Title VII protects transsexual persons from discrimination for failing to act in accordance and/or identify with their perceived sex or gender”); Barnes v. City of Cincinnati, 401 F.3d 729, 733, 736-39 (6th Cir. 2005) (holding that the demotion of a “preoperative male-to-female transsexual” police officer because he did not “conform to sex stereotypes concerning how a man should look and behave” stated a claim of sex discrimination under Title VII); Rosa v. Park W. Bank & Trust Co., 214 F.3d 213, 214-15 (1st Cir. 2000) (applying Price Waterhouse to conclude, under the Equal Credit Opportunity Act, that plaintiff stated a claim for sex discrimination because “it [was] reasonable to infer” that bank refused to provide a loan application because plaintiff’s “traditionally feminine attire” “did not accord with his male gender”).

[4] See also Chavez v. Credit Nation Auto Sales, 49 F. Supp. 3d 1163 (N.D. Ga. 2014) (“Because Title VII protects discrimination based on gender stereotypes, Plaintiff can assert a sex discrimination claim because Plaintiff was transitioning from a male to a female, and Plaintiff essentially claims that the failure to conform to male stereotypes caused Plaintiff’s termination.”); Mitchell v. Axcan Scandipharm, Inc., No. Civ. A. 05-243, 2006 WL 456173, at *2 (W.D. Pa. Feb. 17, 2006) (transgender plaintiff may state a claim for sex discrimination by “showing that his failure to conform to sex stereotypes of how a man should look and behave was the catalyst behind defendant’s actions”); Tronetti v. TLC HealthNet Lakeshore Hosp., No. 03-cv-375E, 2003 WL 22757935, at *4 (W.D.N.Y. Sept. 26, 2003) (transsexual plaintiff may state a claim under Title VII “based on [] alleged discrimination for failing to ‘act like a man’”); Doe v. United Consumer Fin. Servs., No. 1:01-cv-1112, 2001 WL 34350174, at *2-5 (N.D. Ohio Nov. 9, 2001) (termination based on non-conformity with gender expectations is actionable under Title VII); cf. Hart v. Lew, 973 F. Supp. 2d 561, 579 (D. Md. 2013) (assuming without deciding that Title VII protects transsexual individuals).

[5] Sage argued at summary judgment that Eure’s EEOC charge references only termination—not a reduction in hours—as an adverse employment action. ROA.168. Eure’s charge states, “Since on or about March 30, 2011, I was taken off the schedule and have not been allowed to return to work.” ROA.411. Eure’s reduction-in-hours claim is readily inferred from that statement, and, at a minimum, falls within “the ‘scope’ of the EEOC investigation which can reasonably be expected to grow out of the charge.” Young v. City of Houston, 906 F.2d 177, 179 (5th Cir. 1990); see id. (observing that the court’s “scope of inquiry is not [] limited to the exact charge brought to the EEOC”) (emphasis in original).