BY ARTHUR S. LEONARD | A unanimous three-judge panel of the Manhattan-based US Second Circuit Court of Appeals has revived a transgender man’s federal employment discrimination lawsuit, which was earlier dismissed by Southern District of New York Chief Judge Loretta Preska.
The June 19 ruling in a suit brought by Cole Fowlkes is particularly significant in its finding that in addition to the possible relief an LGBT plaintiff might find under the 1964 Civil Rights Act’s Title VII employment protections, there is an alternative route through the National Labor Relations Act (NLRA).
The appellate panel held that a labor union’s discriminatory conduct against a transgender member may violate its “duty of fair representation” imposed by federal law. This may be the first published appellate ruling to impose this obligation on a union in a gender identity discrimination claim.
Second Circuit finds union’s statutory obligations may provide gender identity discrimination protections
Circuit Judge Susan Carney’s opinion describes Fowlkes as “a journeyman ironworker and a member of Local 40” of the Ironworkers Union who, though born biologically female, “now self-identifies as a man, preferring to be called ‘Cole’ and to be referred to in the masculine.” Fowlkes, Carney writes, alleged that “beginning as early as 2005, the Local refused to refer him to jobs for which he was qualified, ‘intentionally passing over me by choosing other men to receive construction work’ that he sought.” In fact, he alleged, the union business agent received calls “specifically requesting him for particular jobs for which he had the requisite skills,” but passed him over in favor of others “with lesser skill level.”
Fowlkes alleged that he suffered sex discrimination, stating that if he had “acted with a feminine character or worked with less muscle, he might not have incurred intentional passing over.” He quoted a business agent as telling him that he “would get a good job if he acted like a girl.”
In his amended complaint, Fowlkes also alleged the union agents specifically refused to refer him for jobs because he had previously filed a discrimination lawsuit against Local 40. In addition to the lack of referrals, Fowlkes asserted that when he did get a job, he was subjected to discriminatory comments on the job from co-workers.
Fowlkes had first filed a discrimination claim with the Equal Employment Opportunity Commission in 2007. But during the Bush administration, the EEOC was not open to claims from transgender workers and the agency sent him a letter notifying him it would not pursue action against the union. When Fowlkes, representing himself, later filed a lawsuit against the union, he miscalculated, doing so after the time allowed had expired.
He filed a second complaint in 2011, again representing himself without a lawyer, asserting that the union, for the period from 2005 until that year, violated his “civil rights (involving Employment)” by subjecting him to harassment and failing to refer him for work through the union hiring hall. Fowlkes cited no specific statutes, but at the district court Judge Preska treated his claim as arising under the 1964 Act’s Title VII and the New York State and City Human Rights Laws. Of those three statutes, only the city’s ordinance explicitly bans gender identity discrimination. The US district court would only have jurisdiction, however, if Fowlkes were able to make a plausible claim under a federal statute, with any state and city laws being merely “supplementary.”
Preska granted the union’s motion to dismiss this second case, finding that Fowlkes should have gone back to the EEOC before filing suit in federal court.
When Fowlkes appealed, he was represented by an experienced attorney, Robert T. Smith of the law firm Katten Muchin Rosenman LLP, assisted by the firm’s attorneys Tami Kameda Sims and Howard R. Rubin. Not only did they contest the union’s assertion that the federal court lacked jurisdiction because Fowlkes had not returned to the EEOC, but they also argued that Title VII would cover his gender identity discrimination claim as a form of sex discrimination and suggested his allegations would also support a claim under the National Labor Relations Act.
Judge Carney rejected Preska’s reason for dismissing the case, first finding that since, as of 2011, the EEOC had not yet changed its view of a sex discrimination claim under Title VII by a transgender plaintiff, it would simply be a waste of time for Fowlkes to exhaust that remedy before turning to the federal courts.
“When an agency has previously ‘taken a firm stand’ against a plaintiff’s position, the plaintiff’s failure to exhaust administrative remedies may be excused on the ground that exhaustion would be futile,” wrote Carney.
A claim under the National Labor Relations Act — which Fowlkes had not originally raised and Preska did not consider — also allows plaintiffs wider leeway regarding the exhaustion of administrative remedies prior to bringing suit, since unions, Carney noted, have “a duty of fair representation [that] is a ‘statutory obligation’ under the NLRA, requiring a union ‘to serve the interests of all members without hostility or discrimination, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.’”
Most previous “duty of fair representation” cases involved union racial discrimination.
Carney pointed out that if the federal court had jurisdiction over this case under the NLRA, then it could also consider Fowlkes’ state and local law claims, including New York City’s ban on gender identity discrimination. So, even if Preska, when she reconsiders the case on direction from the Second Circuit, decides Fowlkes cannot prevail in arguing against dismissal of his Title VII sex discrimination claims, the obligation imposed by the NLRA would suffice to bring the protections under New York City law into play.
The Second Circuit’s “duty of fair representation” ruling is helpful only to individuals represented by labor unions facing discrimination by their union, but it is significant for LGBT workers in the industries that commonly use union hiring halls, such as construction and maritime work.
Now that the EEOC has officially taken the position that both sexual orientation and gender identity discrimination are covered as sex discrimination under Title VII, a complainant who files a charge of such discrimination there will likely get investigative action from the agency, followed by the agency’s efforts to forge a settlement if it concludes the claim has merit.