Transgender Worker Brings Duty of Fair Representation Claim Against His Union

Is it just me, or have labor and employment claims proliferated since Bruce Jenner became Caitlyn? Even transgender construction workers are now bringing lawsuits against their unions.

A union member was born a woman but identified as male. The worker filed a complaint alleging that the union hiring hall passed him over repeatedly for jobs because of his refusal to act feminine. A lower court dismissed the case, which also included claims of discrimination based on his transgender status, but an appellate court reached a different conclusion.

The appellate court allowed the transgender discrimination claims to go forward and found that the worker stated a plausible claim for a breach of the duty of fair representation. Interestingly, the court came to this conclusion despite the worker not mentioning the National Labor Relations Act (NLRA) in his complaint. The worker did allege that the union abused its hiring hall procedures in passing him over for jobs based on personal characteristics. The court noted that when a union abuses its hiring hall procedures to limit a member’s employment opportunities, such allegations must be given particularly close scrutiny.

We do not often run across claims by an employee against his union. In fact, a breach of duty for fair representation claim is extremely difficult for an employee to win. But, this employee may obtain a verdict against his union if he can demonstrate that the union’s behavior at the hiring hall was arbitrary, discriminatory, or in bad faith.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at