Now this is going to be an interesting case. Pauline Davis, 45, has filed a gender discrimination case against J&J Snack Foods after the company (making churros and other frozen snacks) allegedly fired her for wearing a prosthetic penis to work. She seems to have a viable case.

The company makes such products as ICEE, SuperPretzel, Bavarian Pretzel Bakery, Mrs. Goodcookie, Pretzel Filler, Country Home Bakery, Slush Puppie, Luigi’s Italian Ice, Tio Pepe’s churros, The Funnel Cake Factory, Uptown Bakeries and Readi-Bake.

Davis is contemplating a gender change and confided in workers that she was wearing the prosthetic. Someone told her supervisors who effectively inquired whether that was a churro or whether she was just glad to see them. It was neither. She says they proceeded to fire her for wearing the device.

It is difficult to see how a job as a packer/line inspector would be materially affected by wearing such a prosthetic. Unless the company has some other reason for the termination, it is hard to see how this is not discriminatory. She notes that the company has a male employee wearing female clothing and prostheses. Notably, however, such an employee could be evidence of tolerance by the company if it can put forward independent grounds for the termination.

Title VII forbids discrimination “because of sex” but various courts have declined to extend coverage to transgendered individuals. Transsexual employees, however, have faced a hostile reception in federal courts. This view was upheld in Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984). The case involved a pilot who began with the company as Kenneth Ulane and then became Karen Ulane. While a decorated Vietnam War veteran with a good record with Eastern who had legally changed his birth certificate to female after her operation, Ulane was fired. The United States District Court for the Northern District of Illinois determined that Ulane had been fired because she was a transsexual in violation of Title VII, but the Seventh Circuit reversed. The Court ruled that “Congress never considered nor intended that this 1964 legislation apply to anything other than the traditional concept of sex” and that “sex should be given a narrow, traditional interpretation.” These rulings are strengthened by repeated failures in Congress to amend the law to include transgender individuals.

However, there are new arguments to make in such cases, including arguments based on the 1989 decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) where a female won a claim based on “sex stereotyping” by “an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.” Some courts have moved to include transgender individuals due to such rulings like Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000). Other case have good language for litigants. For example, in Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212 (D. Or. 2002), the district court denied summary judgment in a case for a lesbian employee in a case with language that could benefit a transgender plaintiff involving stereotyping. Likewise, in Nicholas v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (9th Cir. 2001) found that a male employee could recover under Title VII over stereotypical treatment.

Many cities have discrimination laws protecting transgender and transsexual individuals. This case could present an important case on the issue if the company does not deny that it fired the woman due to her prosthetic penis.

What do you think?

Source: Philly