It Works Both Ways: Cisgender Employee Sues for Sex Bias

A federal district court in Pennsylvania has preserved a cisgender employee’s claim that his employer violated Title VII and state law by favoring transgender employees.

The ruling holds an important lesson about the full scope of the Supreme Court’s 2020 decision in Bostock v. Clayton County, which specifically addressed only gay and transgender bias but expanded the reach of Title VII for all employees.

David McCreary is a biological and cisgender male, meaning that he was assigned the sex of male at birth and his gender identity corresponds with that assignment.

McCreary worked as a cleaner/clerk for Adult World, which is an adult entertainment store in Pennsylvania. He said he was qualified for his job and did it well.

Employee alleges cisgender discrimination

He also says that after he began the job, a district manager hired two transgender clerks and treated them more favorably than McCreary and another cisgender employee, who is a female.

McCreary said the district manager did not adequately address his complaints that the transgender employees often arrived late and kept the store open past operating hours – and even told McCreary that he would not discipline either transgender employee.

In fact, the district manager promoted one of the transgender employees to a position as a store manager within 90 days of that employee’s start date.

McCreary also alleged that when a customer made a complaint about the cisgender female employee, McCreary said he told the store that he witnessed the interaction and that the complaint was unfounded – but the store disciplined her anyway.

Was cisgender employee’s firing justified?

A few months later, the district manager terminated McCreary, allegedly because he had improperly placed a drape over a fire exit. McCreary said he put the drape over the exit because he did not want children looking into the store. He also said he was never told that he should not hang a drape over the exit.

McCreary also said the manager falsely accused him of stealing money from a tip jar.

On the same day that it terminated McCreary, the store fired the cisgender female employee. A month before that, it had already terminated the only other cisgender employee at the store.

Suit alleges sex bias

McCreary filed administrative charges of sex discrimination, asserting violations of Title VII and state law. He then proceeded to file a lawsuit that presented the same allegations.

The store filed a motion to dismiss. It argued that McCreary did not plead facts supporting an inference of gender bias. According to the store, he was not able to show any similarly situated employees outside of his protected class were treated more favorably.

To support his allegations, McCreary pointed to the Supreme Court’s decision in Bostock. In that case, the high Court ruled that employment discrimination based on an individual’s status as a gay or transgender person is prohibited sex discrimination under Title VII.

The Court established that by discriminating based on transgender status, an employer unavoidably discriminates based on sex under Title VII.

It works both ways

The same rule must apply if an employer discriminates based on an individual’s cisgender status, McCreary insisted.

He put it this way: “If discrimination based on transgender status necessarily entails discrimination based on sex, then so too must discrimination based on cisgender status.”

This is a powerful argument that reveals the true scope of the Bostock ruling – and the court in McCreary’s case agreed with his position.

When an employer discriminates against an employee because they are cisgender, that employer discriminates based on sex, it said.

The court thus rejected the store’s argument that McCreary’s status as a non-transgender employee is not a category that Title VII protects.

The store said the fact that it fired a female employee when it fired McCreary undermined McCleary’s claim of illegal bias. But rather than support the store’s argument, that fact only suggested that the store violated the law with respect to both employees, the court said.

The court did also rule that McCreary pulled the trigger on his lawsuit without giving administrative agencies enough time to look at it, but it gave him permission to continue the case after they have done so.

Understanding Bostock’s scope

The biggest takeaway for employers here relates to the scope of the Bostock ruling. Though that decision was rightly characterized as a substantial victory for gay and transgender individuals, it goes much further than that: Specifically, it also bans discrimination against employees based on their cisgender status.

Don’t underestimate the degree to which Bostock expanded the definition of “sex discrimination” under Title VII, and don’t discriminate against employees or applicants based on their gender status – period.

McCreary v. Adult World, Inc., No. 23-4332 (E.D. Pa. 4/4/24).