It has been said that the more things change, the more they stay the same. That certainly applies to the following case involving the employment application of a biological female who identifies as a male. While the scenario might be somewhat unusual, the legal issue is one that has been around for decades: Can you discriminate on the basis of a protected classification of which you are unaware?
Who are you?
The Minneapolis facility of United Parcel Service (UPS) hires approximately 40 of the 200 to 300 applicants who seek a part-time package-handling job every month. Each applicant must complete the online job application and tour a sorting facility to observe the heavy physical work required of the job before he is given an interview. Because of the high turnover rate, interviews last only 10 to 15 minutes and focus mostly on whether the applicant is likely to stay with the company. Afterward, the interviewer codes the candidate’s application as “ready for a second interview” or “rejected” for specific established reasons (e.g., “poor interview responses” or “poor job history”). The company’s electronic records system allows only one code to be entered, even if more than one might apply.
Gage Hunter was born female but has identified as male since childhood (and will be referred to in this article with masculine pronouns). In 2006, Hunter applied to work at UPS under his female name. He was offered a job but ended up working somewhere else. He began the application process again in 2008, still under his female name. However, by then, while he hadn’t yet undergone any gender reassignment surgical procedures, he was taking male hormones and was presenting himself as a man in public. Additionally, he was receiving Social Security disability benefits based on a medical issue, which allowed him to work only part- time.
Hunter had some computer problems while trying to complete the online application. He e-mailed UPS recruiter David Weinstein, who suggested that he come in for the required plant tour and get help with the application while he was there. Hunter took the tour in a group led by recruiter Brad Trendle and then tried to sign up for an interview, but Trendle told him that his name wasn’t on the list of interviewees. After a few more similar exchanges, Hunter learned that because he hadn’t yet submitted a completed application, he couldn’t proceed to the interview step. Once UPS helped him locate and overcome the faulty computer setting that was getting in the way, his application went through, and he was scheduled for an interview with Trendle.
Hunter reported for the interview sporting a short haircut and wearing a shirt and slacks purchased from the men’s department of a local store. He told Trendle that he was definitely interested in the position and would like to work for UPS. He also mentioned that he could work only part-time because he was receiving Social Security disability benefits. As a result, he communicated that he wouldn’t need the benefits package offered by UPS.
I can’t explain
At some point during the interview, someone entered Trendle’s office and whispered into his ear, after which Trendle announced to Hunter that the company wasn’t actually hiring at that time. After Hunter left, Trendle wrote the code for “poor interview responses” on his application. He later testified that Hunter’s job history was also a basis for rejection because he had worked four jobs in less than three years and left one job as a package handler for a competitor after just one year. That factor was particularly influential in leading Trendle to think that Hunter wouldn’t like the kind of work for which he was interviewing.
Despite telling Hunter that the company wasn’t hiring, UPS did in fact hire several applicants during the same period in which Hunter sought work, including some candidates with job histories that were much more erratic than Hunter’s and others with no job history at all. Individuals with weak work records were rejected, and their applications were marked with the code for “poor job history.”
Hunter sued UPS, claiming discrimination based on his gender and sexual orientation in violation of the Minnesota Human Rights Act (MHRA), among other claims. The lower court dismissed the case, prompting an appeal to the U.S. 8th Circuit Court of Appeals, the federal appellate court that hears cases arising in Minnesota.
As with any refusal-to-hire claim, Hunter had to establish a prima facie (minimally sufficient) case by showing that (1) he is a member of a protected class, (2) he was qualified for the job he sought, (3) he was nevertheless rejected for the position, and (4) the company continued seeking applicants with similar qualifications. If he could do that, then UPS would have to articulate a legitimate nondiscriminatory rationale for the rejection, shifting the burden back to Hunter to prove that the stated reason was a pretext, or cover-up, for intentional discrimination.
Hunter argued that he was discriminated against because of his unwillingness to conform to gender stereotypes or because he was perceived as a transgender individual. The appeals court quickly cut off that claim by noting that Hunter couldn’t show that Trendle actually knew that he was presenting as male. Hunter had no facial hair or other physical manifestations of male identification, and he never told Trendle anything about his gender identity.
True, Hunter’s clothes and hairstyle might have looked like that of a male, but the court observed that fashion trends often influence women to wear clothing and hairstyles that look masculine. The court concluded, “To hang a rule of law on fashions that may change with the times would create an unworkable rule.” Because Trendle didn’t know that Hunter was presenting as a male, he couldn’t have intentionally discriminated against him because of it.
The real me
Hunter objected, arguing that it was unfair that he should have to prove that the interviewer was aware of his protected class status. Instead, it should be enough to meet his initial burden of showing that he does in fact have a “nontraditional self-image.” The court disagreed, noting that in other instances in which a protected class (e.g., national origin, religion, or disability) isn’t self-evident, the employee has to come forward with some evidence to show that the employer was capable of forming an intent to discriminate on that basis. Because Hunter couldn’t do so, he couldn’t prove that UPS discriminated against him because of a protected status of which it was unaware.
The court further ruled that even if Trendle knew of Hunter’s protected class status, UPS would still win because Hunter couldn’t prove that the reasons UPS gave for not hiring him were pretextual. Hunter argued that pretext was shown by the following:
- He was turned away after being scheduled for an interview.
- UPS turned him down because of his job history, but his application had the code for “poor interview responses” marked as the reason for his rejection.
- The reason ultimately given for his rejection―poor job history―wasn’t applied evenly to all applicants.
- Trendle falsely told him that UPS wasn’t hiring.
The court wasn’t impressed with any of those arguments. First, Hunter was turned away for interviews because he hadn’t completed the online application. Second, when he did complete the application, he got his interview. Case closed on that point.
As for Trendle’s lie about the company not hiring, Hunter argued that the company was switching horses midstream by lying to him initially and then later claiming that he wasn’t hired because of his interview and work record. The court disagreed, explaining that while Trendle may have lied, UPS never referred to the incident or stated that Hunter was turned down because no jobs existed. Instead, the company acknowledged that it was hiring at the time and offered clear explanations about why he wasn’t hired. Thus, Trendle’s behavior had no actual impact on the company’s rationale for its decisions, and it therefore couldn’t be said to have offered an inconsistent defense.
Substitute
Hunter pressed on by observing that even the actual reason originally offered for his rejection (poor interview responses) was later changed to “poor job history.” Surely that indicated a sufficient discrepancy to call UPS’s motives into question. But again, the court thought otherwise, noting that “poor job history” wasn’t a changed reason but was merely an additional one for which there was no room in the electronic applicant record.
Hunter’s final argument asserted that his poor job history must have been a pretext because others with poor job histories were hired. The court noted that while several applicants with poorer job histories were indeed hired, many others were not. More important, UPS cited a very specific aspect of Hunter’s job history―namely, his decision to quit a similar job―as a decidedly negative factor, and Hunter never proved that others with a similar event in their work record were hired. Therefore, he was unsuccessful in showing that he was treated differently than other similarly situated applicants.
All in all, Hunter failed to show that he was a victim of discrimination based on his gender or sexual orientation, and therefore, the court affirmed the dismissal of that claim. Gage Elon Hunter v. United Parcel Service, Inc., Case No. 11-3186 (8th Cir., September 17, 2012).
The song is over
There certainly are aspects of this case that are troubling, most notably the fact that Trendle abruptly terminated the interview to state that the company wasn’t hiring when it in fact was. Maybe the court let the company off the hook on that detail because overall, there simply was nothing in the record to show that the statement was made based on Trendle’s knowledge or belief that Hunter was anything other than a woman dressed in clothes ordinarily worn by men. Perhaps he just wanted to avoid having to confront Hunter about his work record or his impression that he wasn’t serious about the work.
In any event, the court made it crystal clear that if you don’t know about an individual’s protected status, then you can’t be found to have intentionally discriminated against him on that basis.