By: Claudia D. Orr
Recently, a female member of a fitness club sued the club after encountering a transgender individual (“a man who identified as a woman”) in the women’s locker room and was told it was the club’s policy to allow access based on “whatever sex which an individual self-identifies.” Corporate offices confirmed that “this was consistent with their policy of not judging whether an individual is a man or a woman.” While this is not an employment case, the court’s comments show how one panel of the appellate court analyzed a transgender case. Let’s see what happened in Yvette M Cormier v PF Fitness-Midland, LLC and PLA-Fit Franchise, LLC.
Cormier joined Planet Fitness on January 28, 2015. One month to the day, she encountered a transgender individual in the locker room. She left immediately and reported this to the front desk, but was advised of the policy above. Cormier returned to the facility several times over the next few days and warned other women about the club’s policy and to be careful when they used the women’s facilities. On March 4, the club terminated her membership.
Cormier sued for invasion of privacy, sexual harassment and retaliation under the Elliott-Larsen Civil Rights Act (“ELCRA”), and the intentional infliction of emotional distress, among other claims. Her claims were dismissed by the lower court when it granted the defendants’ motion for summary disposition.
The appellate court began by reviewing her claims under the ELCRA which prohibits “sexual harassment” not only in employment, but also in public accommodations, public services, education and housing. A club, even if private, may qualify as a public accommodation. Thus, the question was whether Cormier was sexually harassed? To prove that she was, Cormier argued that the club’s policy presented the “transgender man” with the opportunity to undress in front of her and to see her undressed. This, she argued, is conduct or communication of a “sexual nature”.
However, Cormier’s claim failed because an opportunity that would or could create a hostile environment is insufficient. She had to show that she actually was; for example, that she was exposed to male genitalia in the women’s locker room. And, because she did not complain of an actual violation of the law (since the policy at issue was “gender neutral” and not unlawful discrimination), Cormier’s retaliation claim failed as well.
In non-binding dicta, the appellate court disagreed with the lower court’s finding that the policy did not violate the ELCRA. However, because the lower court reached the right result for the wrong reason, its decision was not reversed. But the appellate court’s statement
 While it is unclear whether the plaintiff or the court made the mistake, a male who transitions to a female is not a transgender male, but rather a transgender female suggests that such a policy might violate the ELCRA had there been an actual undressing in Cormier’s presence.
The court found that Cormier’s invasion of privacy claim suffered from the same flaw. Cormier’s privacy was never invaded. She “did not undress or shower in the presence of a biological male.” She left “after encountering a ‘large, tall man’ and then ‘thoroughly check[ed]’ the locker room before using it on subsequent visits.”
Cormier relied on a cited a case that involved hidden cameras in a restroom in which the court had held that “though the absence of proof that the devices were utilized is relevant to the question of damages, it is not fatal to plaintiff’s case.” Harkey v Abate, 131 Mich App 177, 182 (1983). The appellate court distinguished the facts in the instant case stating: “Thus, in Harkey, the plaintiff alleged intrusion of privacy but simply could not prove it under the circumstances of the case. In contrast, [Cormier] alleges only the possibility of intrusion of privacy. One could argue that an exception similar to the one in Harkey would be appropriate for a woman unaware of defendants’ policy because the woman may not know the biological sex of the clothed persons in the locker room.”
But, the court’s reasoning misses the point that would be raised by the transgender community – the biological sex is irrelevant for purposes of a transgender woman being in the women’s locker room. Clearly these are evolving issues. Regardless, the court pointed out that Cormier’s privacy was not intruded upon and, even if it had been, it would be by a guest/member, and not an employee. Thus the claim failed.
The appellate court also found that Cormier’s intentional infliction of emotional distress claim failed. To prove this claim, a plaintiff must show not only that there was conduct that was extreme and outrageous, but also that it caused extreme emotional distress. The court noted that “[t]ransgender rights and policies are polarizing issues and each individual may have a feeling on the issue and on what locker room such individuals should be using. Regardless of whether an average member of the community may find the policy outrageous, the fact is that plaintiff did not suffer severe emotional distress as a matter of law. One encounter with a biological male in a women’s locker room, both persons clothed, does not constitute ‘distress…so severe that no reasonable man could be expected to endure it.’ Indeed, [Cormier] continued to visit the gym and would thoroughly check the women’s locker room for biological males apparently ready to experience such an encounter again.”
This case shows just how polarizing and emerging the transgender issue is. It seems from the comments in this case that the panel was not particularly supportive of a transgender person using the facility that corresponds with their identity and that it would have ruled opposite had there been any undressing involved. So, what should an employer do? The EEOC takes the position that it must grant the transgender individual access to the restroom that matches their identity. But what of the other employees’ rights? My experience is that if the situation is handled properly, it really becomes a non-issue. If you have an employee who comes forward to say he is transitioning, or has, you should work with an experienced employment attorney, such as the author.
This article was written by Claudia D. Orr, who is Chair of the Legal Affairs Committee of Detroit SHRM, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM). She can be reached at email@example.com or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html.
Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. June 2017.