Pregnant man's novel discrimination case against Amazon raises familiar issues
The plaintiff says that after he disclosed his pregnancy, supervisors began criticizing his work performance in an effort to demote him.
An employment suit against Amazon breaks new ground with its claim that a warehouse worker identifying as male suffered discrimination when he announced to his boss that he is pregnant.
The plaintiff, whose suit was removed Monday to federal court, is apparently nonbinary, although the complaint only says he identifies as male.
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The suit raises the question of what it will be like to litigate a suit raising simultaneous claims for gender identity discrimination and pregnancy discrimination.
While the circumstances around the case are novel, the litigation will be much like any other employment discrimination suit, according to lawyers who reviewed the pleadings. And while the case is too new for all the facts to be known, those lawyers felt the plaintiff would be able to get a fair hearing on his novel claims.
The plaintiff, Shaun Simmons, says that after he disclosed his pregnancy, supervisors began criticizing his work performance in an effort to demote him. In addition, Simmons says he faced harassment from co-workers after his bosses told others about his pregnancy.
‘Complexity of gender’
The suit was removed to the U.S. District Court for the District of New Jersey in Trenton on Monday by lawyers from Morgan, Lewis & Bockius on behalf of Amazon.
Simmons originally filed the case in Mercer County Superior Court.
“Some people can’t seem to wrap their heads around the idea that somebody can identify as male and be pregnant,” said New York labor and employment lawyer Thomas Andrykovitz, who’s not involved in the litigation but who has represented transgender plaintiffs in employment litigation. “The pieces of the claim are very straightforward. What’s novel about the case is people need to understand the complexity of gender, and that’s what we see here.”
Andrykovitz said the facts, as alleged in the complaint, painted an unflattering picture of Amazon’s conduct. He said it’s unclear from the filing whether the company engaged in the interactive process to decide how to change the work assignment of an employee seeking a disability accommodation, as required under facts such as these.
But while acknowledging that some members of the public might have rigid notions of gender, Andrykovitz believes any jury that heard the case would be able to apply the law to find Simmons was subject to discrimination at work.
The facts in the case, as they are alleged, are “really egregious” and “a big deal” if they are true, said Andrykovitz, who said they indicate Amazon does a poor job of training its employees. And Amazon’s complaints about Simmons’ work, which began after he told them he was pregnant, indicate the company is seeking to “paper the file” so they can terminate him and avoid an accusation that their adverse actions were a pretext.
“In my experience, employers will try to create reasons to justify the adverse employment action,” Andrykovitz said.
Limited to females?
Daniel Schwartz, who represents defendants in employment litigation at Shipman & Goodwin in Hartford, Connecticut, also says an employer in Amazon’s position is likely to raise legitimate reasons for its adverse employment actions against the plaintiff.
A claim for pregnancy discrimination by an individual identifying as male raises the question of whether protections against pregnancy discrimination are limited to females, said Schwartz, who writes regularly about LGBT issues in his firm’s employment law blog.
“Pregnancy has typically not been defined as relating to a woman—that’s how it’s understood,” Schwartz said. “That will be the issue that the court will have to look at.”
If the court finds the plaintiff is covered by pregnancy discrimination laws, it will conduct the same analysis as in any other discrimination case, which is whether they were treated differently based on their membership in a protected class, said Schwartz.
The suit’s removal to federal court could present a difficult venue for Simmons, as a plaintiff in an employment discrimination suit, but the fact that the case is brought entirely under New Jersey state anti-discrimination laws will make things a little easier than if the case relied on federal law, said Robyn Gigl, a transgender attorney who handles labor and employment law at Gluck Walrath in Freehold.
Gigl, who regularly addresses groups such as the New Jersey State Police on transgender issues, said the uncommon set of issues in the case would be “difficult only from a public perception standpoint—when they hear about pregnancy discrimination, they think of a cisgender woman and don’t think of a transgender man. There’s that perception. Beyond the perception issue, it seems to be a case of prima facie pregnancy discrimination,” said Gigl.
Although a jury trial is unlikely to be held in the case anytime soon, if it were, the plaintiff’s lawyer would have to conduct careful voir dire to screen jurors for bias toward transgender persons, said Gigl.
“It’s a unique case factually. From a legal standpoint it’s a straightforward claim for gender identity discrimination and pregnancy discrimination,” she said.
The circumstances described in the complaint drive home the need for employers to train managers and the rank and file on how to treat transgender employees with respect, said John Lord, co-chair of the national labor and employment practice at Foley & Lardner in Miami, who frequently advises clients on LGBT employment issues.
In its June ruling on Bostock v. Clayton County, in which it held that Title VII bars discrimination based on sexual orientation or gender identity, the Supreme Court reaffirmed its longtime holding that federal law bars so-called “sex-plus” discrimination claims, such as a dual claim for sex and age discrimination, said Lord. The dual claims for pregnancy discrimination and gender identity discrimination in the Amazon case are similar, Lord said. As such, the Bostock ruling should alert employers of a need to be prepared for disputes involving transgender employees, he said.
“If a transgender employee comes forward I think employers should have a game plan and have policies and procedures for how to comply with transgender employees,” he said.
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