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There’s just no guessing about cross-dressing: Focus hiring on qualifications, not appearance

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in Discrimination and Harassment,Hiring,Human Resources

The Minnesota Human Rights Act (MHRA) prohibits employment discrimination against applicants based on sexual orientation. The law defines sexual orientation to include “having or being perceived as having a self-image or identity not traditionally associated with one’s biological maleness or femaleness.”

In addition, the federal Title VII outlaws dis­­crimination based on gender stereo­­typ­­ing (though not sexual orientation alone).

But both laws stipulate that an employer making em­­ployment decisions about an applicant or employee must actually know the person’s sex; there’s no violation unless the employer then acts on stereotypes about that sex or on the basis of sexual orientation.

While a man who wears dresses and makeup might make his orientation or self-image perception clear, that’s not true of a woman who dresses like a man, at least not according to a recent 8th Circuit Court of Appeals decision.

Recent case: Gage was born female but had always self-identified as a male. Under his female birth name, Jessica, he applied for a part-time package handler position at UPS.

He showed up at one interview with his breasts bound tight, with short hair and wearing a men’s shirt, pants and shoes. At the time, he had not undergone sex reassignment surgery, but had begun taking male hormones. He did not, however, obviously look like a male applicant.

During a job interview, Gage was asked a series of standard questions to assess his suitability for a part-time job, including whether he was interested in health benefits and tuition reimbursement. He also had to answer questions about his work history. UPS routinely excluded some applicants with erratic job histories. The ostensible reason was that training is expensive, and those with poor work histories or no need for benefits frequently quit after a short time.

Gage told the interviewer that benefits weren’t important because he received Social Security disability benefits and insurance coverage. He also revealed that he had worked as a package handler in the past for a short time. The interviewer concluded that he wasn’t a good candidate and said there were no current openings.

Gage sued, alleging gender and sexual orientation discrimination. He argued that it was obvious that the female self he had presented—dressed in men’s clothing—wasn’t conforming to sex-based stereotypes about how women usually dress. He also argued that it was obvious he was transgender based on his dress.

UPS said it never realized Gage was transgender, nor did it assume that dressing in men’s clothing was somehow countering sex stereotypes.

The court agreed. It noted that women often wear clothing that re­­sembles men’s clothes. On its own, presenting oneself in men’s clothing and short hair isn’t enough to create a presumption that the employer knows the applicant’s sexual orientation. It dismissed the case. (Hunter v. United Parcel Service, No. 11-3186, 8th Cir., 2012)

Final note: The court also didn’t believe UPS discriminated by using the excuse “we’re not hiring” when it rejected Gage. The company’s underlying reason for not hiring him was still legitimate and the lie didn’t change that.

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