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Friday, January 15, 2016

Loose Lips Revive Transgender Discharge Case

By: Thomas Eden
Jennifer Chavez was employed as an automobile technician at Credit Nation Auto Sales who sells and repairs automobiles in Austell, Georgia. At the time of her hire, Jennifer was known as Louie Chavez and presented as a male, according to court documents.

In the summer of 2009, Chavez decided to go through a gender transition because she "did not want to die having lived a lie." Chavez informed Credit Nation of her intention to transition from a male to a female and later testified in deposition that the managers and staff were both extraordinarily kind regarding her decision to transition. The manager made sure that all employees understood the no harassment policy and that anyone who committed an infraction would be terminated.

Chavez claimed in her lawsuit that the supportive environment at Credit Nation ended two weeks after she announced the intended transition and was told to "tone things down" after her visits to the other technicians' stalls, talking about surgeries, including breast augmentation.

Later the Credit Nation President met with Chavez about coming to work or leaving work wearing dresses, skirts, and heels in the service department work area because the attire violated Credit Nation's workplace rules, but also went on to make statements such as “he was very nervous” about her gender transition and the “possible ramifications” and she “was going to negatively impact the business.”
Chavez raised a number of unisex restroom issues for which Credit Nation sought advice of legal counsel. Chavez was also issued two disciplinary warnings.

On January 8, 2010, Chavez arrived at work and clocked in at 7:39 a.m. and decided to sit in the back of one of the cars she was working on to try and get a little bit warm. She then went to sleep in the back of the car for 40 minutes and a photograph of her sleeping was sent to the manager.  On January 11, 2010, Chavez was terminated for sleeping while on the clock on company time in violations of the Employee Handbook, to which she admitted. Another employee, who did not have previous write-ups in his file, had been terminated for sleeping on the clock.

Chavez then filed her transgender sex discrimination Title VII lawsuit in the Georgia Federal District Court. Credit Nation filed a motion for summary judgment, which was granted in its favor in September 2014, based largely on her termination for sleeping on the job and the comparator evidence was critical to the Judge’s ruling.

However, this week the 11th Circuit Court of Appeals in Atlanta reversed finding that Chavez had presented sufficient mixed motive evidence of “heightened scrutiny” and deviation from “normal progressive discipline” to put her transgender discharge case before a federal jury. The case is Jennifer Chavez v. Credit Nation Auto Sales.

Common Sense Counsel: Updating your handbook language to cover gender identification and sexual orientation language should be one of your first priorities, with updated training, deciding now on restroom solutions and finding a source for guidance when confusion reigns in your workplace. Transgender Discrimination is an EEOC litigation hot button issue for 2016.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com with link to decision.