September 2012

Employers are aware that the Minnesota Human Rights Act (MHRA) and its federal counterparts make it unlawful to discriminate against an employee or applicant on the basis of a “protected status.” A non-exhaustive list of protected statuses would include race, age, sex, disability, religion and others. However, while determining whether an employer knows an employee holds a protected status is often an easy exercise, a recent decision from the Eighth Circuit Court of Appeals reminds us that it is not always the case.

In Hunter v. United Parcel Service, No. 11-3186 (8th Cir., Sept. 17, 2012), a transgendered individual applied for a position with UPS but was not ultimately hired. The applicant brought a claim under the MHRA arguing that he was discriminated against based on his non-conformity to gender stereotypes, or his being perceived as transgendered. The applicant used a female name but showed up to the interview with his breasts bound, a short haircut, and wearing clothing and shoes he purchased from the men’s department. Regardless, the court stated there was insufficient evidence to make the employer aware that the applicant was transgendered. The court noted there was no evidence of facial hair, no evidence the applicant told the employer he identified as male or transgendered and no evidence that the employer engaged in any discussion or took any action suggesting it was aware of the applicant’s protected status. Therefore, because the employer was not aware of the protected status it was impossible to have discriminated against the applicant because of it.

The case illustrates that employers should not automatically concede that it was aware of an employee’s protected status. Although some statuses are more obvious than others, it is not always reasonable to assume an employer is aware of it, as is the case with religion, national origin, status with regard to public assistance, etc. In such cases, the employee bears the burden of showing that the employer was aware, and if the employee cannot carry that burden then he/she has no case.

However, the court also stated that although there is no particular type of evidence needed to show an employee holds a protected status, any evidence that tends to show the employer was aware of the protected status will be scrutinized, such as informal interactions, indirect observations, and behavior in the workplace. Therefore, employers should not assume that because an employee did not expressly reveal he/she is on public assistance, for example, that the employer was not aware of it when employment decisions regarding that employee were made.

As noted above, most of the time whether an employer was aware of an employee’s protected status is not an issue and/or is quickly resolved. However, there are those cases in which it is not clear, in which case employers are advised to contact the experienced attorneys at Wessels Sherman to assist them in navigating through those issues.