News + Insights from the Legal Team at Zalkind Duncan & Bernstein

Judge’s Discovery Order in EEOC Transgender Litigation: Right Result, But Reason for Caution

I have written previously about the EEOC’s litigation on behalf of Aimee Stephens, whose employer—a Michigan funeral home—fired her when she announced that she was transitioning and would present as a woman at work in the future.  At ZDB we have continued to follow this potentially groundbreaking federal litigation in the Eastern District of Michigan.  In the most recent development, Magistrate Judge David R. Grand granted the EEOC’s motion for a protective order, seeking to prevent the defendant funeral home from violating Ms. Stephens’ privacy during the process of discovery in the case.  While, given the nature of the discovery sought, this was patently the right outcome, the judge’s order could (and, in my view, should) have provided more assurance to future transgender litigants that they will be protected from attempts to use discovery as a tool to invade their privacy and humiliate them.

The discovery requests at issue sought detailed disclosures on numerous personal matters totally irrelevant to the ultimate issue in the case (which, following the court’s decision on the funeral home’s motion to dismiss, is whether the funeral home fired Ms. Stephens because she did not conform to its sex- or gender-based preferences, expectations, or stereotypes).  Among those matters was Ms. Stephens’ medical history: the funeral home sought her medical and counseling records as well as asking whether she “currently has male sexual organs, including but not limited to, a penis and testicles”; whether she has had “any surgery performed to remove or modify any male sexual organs”; and whether she has undergone hormone therapy.  The funeral home also sought to pry into Ms. Stephens’ family life, asking for detailed information on any past marriages (including all pleadings from any prior divorce), her biological offspring, her communications with her family regarding her transition, her wife’s feelings about the transition, and the current state of her marriage.

The court appropriately recognized that the information sought was of “the most intimate and private nature,” and that requiring its disclosure at this stage in the case would be “harassing and oppressive” at least where the defendant had “failed to show its relevance to the disposition of the gender-stereotyping claim.”  (The “gender-stereotyping claim—that is, the claim that the funeral home engaged in gender discrimination in violation of Title VII when it fired Ms. Stephens because she “did not conform to [its] sex- or gender-based preferences, expectations or stereotypes,” is the only claim remaining following the court’s dismissal of claims that the funeral home violated Title VII “because Stephens is transgender” or “because of Stephens’ transition from male to female.”)  What is concerning in the court’s opinion, however, is that it suggests that the discovery sought “may have been proper” if the claims that the funeral home fired Ms. Stephens because she was transgender or transitioning were still “live,” because the funeral home would have been entitled to discovery regarding whether she actually was transgender or transitioning.

One issue that the case highlights, then, is how “transgender” should be defined for purposes of antidiscrimination law, and what exactly the plaintiff’s burden should be.  In most discrimination cases, the plaintiff’s prima facie case includes some showing that she is a member of a protected class and was treated adversely by her employer under circumstances that suggest discrimination based on protected status.  If it is actually the case that a plaintiff claiming she has experienced discrimination aimed at her because she is transgender has to prove that she is “transgender” by opening up her entire life, including marital history, medical records and information about the status of her genitalia, potential plaintiffs in such cases might well often be dissuaded.

However, in Massachusetts at least, no such result should follow from commencing a case.  The Massachusetts antidiscrimination law (unlike federal Title VII) explicitly makes “gender identity” a protected class, but it also gives plaintiffs a variety of ways to prove their gender identity—including any “evidence that the gender identity is sincerely held as part of a person’s core identity”—and in any case, a plaintiff need not necessarily prove her gender identity to prevail, because the law prohibits discrimination on the basis of gender identity regardless of what a person’s gender identity is.  (One useful guide to the Massachusetts law is here.)  The Michigan EEOC case demonstrates that unscrupulous defendants will conduct fishing expeditions into plaintiffs’ personal lives if they can find any thin excuse to do so; one telling line in the court’s opinion noted that at oral argument defense counsel “candidly admitted that he could not articulate the relevance of most of the requested information” to the claim still at issue in that case.  Lawmakers seeking to protect transgender people from discrimination should therefore follow the example of Massachusetts legislators in crafting laws carefully to avoid that avenue for harassment of plaintiffs.

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