
In her lawsuit, Scott alleges that she visited CSL Plasma, Inc. in
November 2008 to donate plasma. CSL is a for-profit business that pays plasma
donors for their donations and re-sells donor plasma for manufacture into
pharmaceuticals. Scott alleges that, during her donor screening, a CSL nurse
informed Scott that she was “permanently ineligible to donate” because she was
taking hormone replacements and had undergone a sex change operation. Scott
also alleges the nurse made statements that assumed that Scott had engaged in
high risk activities when she contends she had not.
Scott filed a discrimination charge against CSL with the Minnesota
Department of Human Rights (“MDHR”) and later commenced her lawsuit. Under the business discrimination
provisions of the MHRA, it is “an unfair discriminatory practice for a
person engaged in a trade or business or in the provision of a service” to
“intentionally refuse to do business with . . . because of a person’s . . .
sexual orientation . . . unless the alleged refusal or discrimination is
because of legitimate government reasons.” In addition, the MHRA definition of
“sexual orientation” extends beyond sexual orientation to encompass gender
identity.
CSL sought to dismiss Scott’s complaint, arguing her claim was
untimely, that donating plasma is not a “business,” and that Scott’s claim
fails given the lack of any legal right to donate blood or plasma. Minnesota
federal district court Judge Joan Ericksen rejected CSL’s arguments. While
Scott did not commence her lawsuit for a number of years after the MDHR issued
a probable cause finding on her administrative charge, Judge Erickson ruled
that the MHRA does not contain a strict deadline for commencing legal action
after a probable cause finding. In addition, Judge Ericksen held that CSL is in
the plasma “business” given that it pays donors and resells their plasma. The
Judge also held that the MHRA does not require the existence of an enforceable
contract for a business discrimination claim, because this claim encompasses a
refusal to do business with someone based on gender identity. While noting that
CSL had presented evidence of a potential business defense to Scott’s claim,
the Court held that fact issues necessitated a trial.
The Scott case is a reminder that, while transgender rights are still
evolving at the federal level, employment and business discrimination based on
gender identity has been unlawful for some time under Minnesota law. While
certain religious entities are exempt from the state law, other businesses must
comply and would be well-served to revisit their employment and business
policies, practices, and their personnel training to ensure compliance.
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