The Court of Appeals for the Second Circuit recently reinstated a transgender construction worker’s duty of fair representation claims against an ironworkers union and two of its business agents.  In Fowlkes v. Ironworkers Local 40, et al., No. 12-336-cv (2d Cir. June 19, 2015), the appellate court held that the lower court was wrong to have dismissed the case on jurisdictional grounds when the pro se plaintiff failed to exhaust Title VII’s administrative remedies, and that, in any event, the court should have read the complaint liberally to include a DFR claim against the union.

Plaintiff was a journeyman ironworker who was born a woman, but who now self-identifies as male. The complaint alleged that the union hiring hall passed plaintiff over repeatedly for job referrals because of a prior lawsuit and because of a refusal to act feminine.  The lower court dismissed the case because, notwithstanding opportunities to conform the pleadings, plaintiff failed to plead the receipt of a “right to sue” notice from an appropriate administrative agency.  Insofar as the complaint focused primarily on Title VII claims, the court ruled that dismissal of those claims denied the federal court of jurisdiction over the case.

On appeal, the appellate court ruled that the lower court prematurely dismissed the Title VII claims, but held separately:

Although Fowlkes’s amended pro se complaint did not flag the NLRA, we nonetheless are persuaded, with the benefit of a counseled brief on Fowlkes’s behalf, that Fowlkes has stated a plausible claim for a breach of the duty of fair representation. In his amended complaint, Fowlkes alleges that the Local refused to refer him for work for which he was qualified because of his transgender status and in retaliation for instituting legal proceedings against the Local. Allegations that a union abused its hiring hall procedures to undermine a member’s employment opportunities warrant particularly close scrutiny when a union wields special power as the administrator of a hiring hall. Breininger, 493 U.S. at 89; see also Gilbert v. Country Music Ass’n, Inc., 432 F. App’x 516, 521 (6th Cir. 2011). Assuming, as we must, that Fowlkes’s allegations are true, the Local’s conduct was at the very least arbitrary, if not discriminatory or indicative of bad faith.

The issue of whether employment discrimination on the basis of transgender status is actionable under Title VII is far from settled.  In 2011 – consistent with a trend indicative of the current administration’s approach to employment law — the EEOC held for the first time that claims of transgender discrimination are cognizable under Title VII of the Civil Rights Act of 1964.  This finding, in Macy v. Holder, –[CITE]–, is, of course, contradicted by the repeated efforts of Congressional Democrats throughout the last decade, to pass the Employment Non-Discrimination Act (ENDA) which would expressly add “actual or perceived sexual orientation or gender identity” to the list of characteristics protected by Title VII.

Regardless, union discrimination based specifically on characteristics protected by Title VII or some other statute is not a predicate to a DFR claim.  As is explained in the Fowlkes ruling, the union behavior need only be “arbitrary, discriminatory or in bad faith.”  While not making any factual conclusions in this case, the Court of Appeals, giving the pro se complaint a generous reading, has concluded that, if proven, the facts set forth by plaintiff could support a verdict against the union.