Employment Discriminaton Filing: Snack Maker Accused of Firing Employee For Wearing Prosthetic Device

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

28 thoughts on “Employment Discriminaton Filing: Snack Maker Accused of Firing Employee For Wearing Prosthetic Device”

  1. Another blog reports that the plaintiff is also in some military reserve. She is now stating that she/he is filing an amended complaint adding a defense of Dont Ask Dont Tell (or smell).

  2. gee gee

    mespo outed himself some time ago when he started guest posting

    and pete is short for peterson, there are several million of us in minnesota and the dakotas

  3. The packer should be given proper disciplinary measures for mentioning to co-workers what she has in her panties. Right? If I came to work and told Mark (yes, you were outed by junctionshamus) that he might want to admire my tumescent brand new shiny penile extension, he could get me in trouble with the authorities at my workplace. Simply stated I don’t think the company has much to worry about. They have it dicked.

  4. Their case is probably indefensible, but one claim they could make is that the prosthesis was not required do any of their work.

  5. The plaintiff needs to plead an alternative count that the fake penis reason given was pretextual — that they we discriminating against females and since she was truly a female as evidence by her fake penis that here fake penis was indeed a pretextual penis. Do you follow me? I am going to run this argument by the group at the after school meeting and see what they think. The bottom line is no one should be fired for having a fake penis under their skirt at work– unless of course they are using it for ulterior reasons and are panting or something which would give that away. Then there is the question of whether the employer had “firm” grounds or “soft” grounds for the firing. If you follow me.

  6. If I were king of the world – and expected to rule – this matter would come down to one simple question:

    Was the prosthesis tumescent?

    Other than, say, on a porn movie set, why would anybody defend an angry organ in the workplace?


  7. Gene,
    I do like the “original factory installed equipment” phrase. I think it seems obvious that the company fired her for wearing the prosthetic. I would love to see what they claim what the real reason was for terminating her.

  8. she was wearing a fake penis and her job was as a “packer”

    this is just too easy

  9. Maybe they’re afraid she’ll slip a churro out in the hollow of the prosthesis, every day. Like Johnny Cash sang, “I took it one piece at a time, and it didn’t cost me a dime…”

    Or maybe they’re just being silly…

  10. I think she’s got a pretty good case unless the company can prove an independent reason for the firing even if they do deny the prosthetic was the cause. The tolerance of a cross-dressing male employee, while indicative of tolerance toward the transgendered, does not automatically preclude that the company is applying a double standard based on – shall we say – original factory installed equipment.

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