KEY TAKEAWAYS:

• Employers should be aware that cisgender employees can allege discrimination on the basis of sex under Title VII

• Dissimilarities or disparate treatment — with respect to both discipline and advancement opportunities — can be seen as an inference of discriminatory animus

• Employers should remember that employees, or former employees, must exhaust all administrative remedies as it relates to discrimination and harassment before filing a lawsuit

On April 4, 2024, the Honorable Judge Michael M. Baylson from the Eastern District of Pennsylvania partially granted and partially denied a motion to dismiss filed by a former employee who alleged discrimination by his employer because he was a cisgender male. The court ruled the employee plausibly alleged a Title VII violation by the employer. However, the court noted that the employee did not properly exhaust his administrative remedies. Ultimately, the court decided to allow the employee to amend the complaint following the completion of the administrative process.

This matter involves an employee who claims sex discrimination against his former employer. The employee, a cisgender male, asserted that the employer impermissibly favored employee’s similarly situated transgender coworkers in violation of Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act (PHRA).

The employee is cisgender, meaning that his gender identity corresponds to his sex as identified at birth. After the employee began working for the employer, the employer’s district manager, hired two transgender clerks. The employee allegedly complained to the employer of disparate treatment between the transgender and cisgender employees. On or about June 4, 2023, the employee was terminated from his position. The employer alleges the employee was terminated for improperly placing a drape over a fire exit. The employer also alleges the employee kept a tip jar on the counter and was stealing money from the store. On the same day the employee was terminated, another cisgender employee was also terminated for other reasons.

Within the employer’s motion to dismiss, the employer raised two arguments: (1) employer asserted that the employee has failed to plausibly plead “circumstances surrounding his termination” that “support an inference of gender discrimination or discriminatory animus” and (2) even if the court did not dismiss the employee’s Title VII claim it must nonetheless dismiss Employee’s PRHA claim for a failure to exhaust all applicable administrative remedies.

The employee countered the employer’s arguments stating that the employer is discriminating against a person because they continue to identify as the same sex identified as birth. The employee also argued that “[i]f discrimination based on transgender status necessarily entails discrimination based on sex, then so too must discrimination based on cisgender status.” Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1743 (2020). The employee argued that he adequately pled an inference of discrimination, as he alleged that only the cisgender employees were terminated. In regard to the administrative remedies, the employee conceded he had not exhausted all available administrative remedies however, this failure was not fatal to his claim.

In making a determination regarding the employer’s motion to dismiss, the court indicated that to survive a motion to dismiss on a Title VII claim, “an Employee must plead facts sufficient to raise a reasonable expectation that discovery will reveal the Employee (1) is a member of a protected class, (2) was qualified for the position which she held, (3) suffered an adverse employment action which was (4) taken under circumstances giving rise to an inference of discrimination.” See Emerson v. Stern & Eisenberg, P.C., 2022 WL 10208548, at *3 (E.D. Pa. Oct. 17, 2022) (Baylson, J.) (citing to Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410–11 (3d Cir. 1999)).

Employer’s motion to dismiss the employee’s Title VII claim was denied. The court found the employer’s argument that the employer’s decision to simultaneously fire another cisgender employee, which the employee alleges to also be based on sex, cannot unilaterally undermine the employee’s Title VII claim. Additionally, the court found dissimilarities — with respect to both discipline and advancement opportunities pertaining to how the transgender employees were treated in comparison to the cisgender employees — raises the requisite inference of discriminatory animus.

However, the court found the employee had not properly exhausted his PHRA administrative remedies. Before filing a PHRA suit, an employee must file a complaint with the PHRC. The employee filed his complaint in this case approximately four months after dual filing his administrative complaint with the EEOC and PHRC. In so doing, employee “refused to give the PHRC the opportunity to resolve [his] complaint through conciliation and failed even to make a good faith attempt to exhaust [her] remedies as required by the PHRA.” Kozlowski v. Extendicare Health Serv., Inc., 2000 WL 193502, at *4 (E.D. Pa. Feb. 17, 2000). Thus, the employee’s PHRA claim was not properly before this court. The court granted the employer’s motion to dismiss the employee’s PHRA claim, without prejudice, as the court approved the employee’s right to amend his complaint following the completion of the administrative process, if that claim has not been administratively resolved.

In light of this ruling, employers should be aware that cisgender employees can allege discrimination on the basis of sex under Title VII. Any possible dissimilarities or disparate treatment of employees can be seen as an inference of discriminatory animus. While employees must exhaust all administrative remedies, that alone may not be enough for a motion to dismiss, as courts will allow employees the opportunity to amend their complaint following the completion of the administrative process.