Mountain View Pool did the right thing, Julie Jaman has the chance to do the same | Guest Viewpoint

Jeremy Wood
Posted 9/21/22

Port Townsend is a special place. Its residents celebrate their differences. Neighbors support one another. So I was heartbroken to see its streets overrun by members of the Washington State Three …

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Mountain View Pool did the right thing, Julie Jaman has the chance to do the same | Guest Viewpoint

Posted

Port Townsend is a special place. Its residents celebrate their differences. Neighbors support one another. So I was heartbroken to see its streets overrun by members of the Washington State Three Percenter militia on Saturday, Sept. 4. 

We may be used to watching bigots in our streets since 2016. But few of us expected to see the same in Port Townsend. And I, at least, did not expect to see it sparked, by one of Port Townsend’s own.

But I am not writing to attack Julie Jaman. Instead, I want to voice my own support for the decision of Mountain View Pool in asking Ms. Jaman to leave after she confronted a transgender woman who worked for the pool in its locker room back on July 26, asking the employee about her “male” genitalia and expressing hostile concern that the employee was escorting young girls to the women’s bathroom. 

The Mountain View Pool not only did the right thing in protecting its employee. It did its legal duty. More to the point, it acted to avoid legal liability it could have faced from its employee.

Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against an employee based on sex, and the United States Supreme Court held in 2020 that discrimination based on transgender identity is sex discrimination. While such discrimination can sometimes be direct – termination or a refusal to hire - it also arises where the employer subjects their employee to hostile work conditions, including harassment. The Washington Law Against Discrimination contains these same prohibitions. 

Ms. Jaman harassed the pool’s transgender employee. Many of us are used to thinking about workplace harassment as that committed by a supervisor, or at least a coworker. And Ms. Jaman obviously did not work for the Mountain View Pool. The difference is not determinative. A quarter of a century ago, the Ninth Circuit Court of Appeals, covering Washington, held that “an employer may be held liable for sexual harassment on the part of a private individual, such as the casino patron, where the employer either ratifies or acquiesces in the harassment by not taking immediate and/or corrective action when it knew or should have known of the conduct.” Folkerson v. Circus Circus Enter., Inc., 107 F.3d 754, 756 (9th Cir.1997). 

At least two other circuit courts of appeal, covering vast swaths of our country, have agreed. 

Of course I am not suggesting that the Mountain View Pool discriminated against its employee. But it could have been found to do so if it had not removed Ms. Jaman. Now, the Mountain View Pool could only be liable for its own conduct. In the language of the law, the pool could not be held strictly and vicariously liable for Ms. Jaman’s harassment of its employee. The pool had to do something wrong on its own. 

It certainly would have, violating Title VII, if it acquiesced to Ms. Jaman’s wishes and asked its employee to use the men’s bathroom because, as the Equal Employment Opportunity Commission has held, an employer cannot deny an employee equal access to the bathroom corresponding to an employee’s gender identity. Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395 (Apr. 1, 2015). And it could not alter that employee’s job duties based on Ms. Jaman’s discriminatory concern.

Likewise, Mountain View Pool could have violated Title VII if it let Ms. Jaman’s conduct go unanswered, by failing to stop it by reasonable measures. Reasonable minds can certainly disagree over whether Ms. Jaman had to be banished permanently from the pool, or even kicked out at all. Management could have pulled her aside and explained why her conduct was unacceptable. But such speculation can be unhelpful when we remember that the pool had to act in the moment to protect one of its own from humiliating and offensive treatment. It made the call it needed to make.

There is another lesson we can take from how the law has evolved in its treatment of harassment against transgender people. 

Those of us who identify as cis-gender can always learn and grow. I grew up with gender-segregated bathrooms that assumed the genitals of those who used them. As a cis-man, I can always find and use a men’s restroom without harassment. I have never had to live in a world that forces me to be someone I am not and then marginalizes, insults, and terrorizes me for being who I am. I do not know what it is like to be a trans woman that has learned enough to fear for my life anytime I need to pee. king5.com/article/news/community/facing-race/hate-crimes-spiking-against-transgender-community/281-5b3b1580-5759-40d2-9912-fef5c15c7b12.

Also, I have taught youth for many years and empathize with Ms. Jaman’s concern for the safety of any young person. 

But when we mark someone out as suspicious or dangerous to those we consider vulnerable, we must remember our own bias. Too often, white people suspect that people of color are more violent because of their race. 

Likewise, we cannot presume someone is dangerous because we assume we know their gender better than they do. When we so presume, we cannot know who we will hurt. The person we discriminate against, of course. But we may also hurt others, such as one amongst the young girls Ms. Jaman tried to defend who may be questioning her own gender identity.

The law is always changing because it recognizes we are imperfect. We make mistakes and we do not always understand or empathize easily with experiences other than our own. 

Julie Jaman has the opportunity now to learn. She has seen who her “allies” are: militia members marching in Port Townsend’s streets. I am confident that Ms. Jaman, who spoke out when she worried for vulnerable youth, has any time for such hateful bigots. 

And so while I have tried here to explain how Mountain View Pool did the right thing, I invite Ms. Jaman to seize her chance and do the right thing too. Apologize to the employee she hurt. Tell the press that her town is no place for a march of hate; that these militia members do not represent her. I look forward to seeing the good Ms. Jaman chooses to do. 

(Jeremy Wood is a Seattle-based lawyer who spends as much time as he can in Port Townsend. He graduated from the University of Washington School of Law with Honors. As a former Assistant Seattle City Attorney, past Chair of the Seattle Human Rights Commission, and current Seattle Community Police Commissioner, he is committed to creating safe and equitable communities for all. He has spent much of his career representing employers, publishing widely on matters of workplace discrimination. All views expressed herein are his own and are not provided as legal advice.)

Comments

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  • CodexSeraphinianus

    Well written and said Jeremy. Some points agreed with and some not so much. I would like nothing more than for the two individuals involved to be able to get together and have a discussion on a neutral playing field. But this is between them now. Not us. One question. Why is everyone coming out of the wood works to say what Julie ought to do to receive forgiveness and when she will be forgiven?

    There’s a lot to be countered in your letter (which is very very good) however I will attempt to stick to one primary point I’ve noticed over the past few weeks.

    In this instance, you have a possible crime of harassment, correct? I’ve seen several folks come on here and call for her forgiveness and whatever else they have decided morally is correct for her to do. I haven’t seen this town do that for other crimes involving forms of harassment and assault. Only when it gives the opportunity to grandstand. She doesn’t owe anyone an apology if she doesn’t choose to. It’s up to her whether she chooses to do any of those recommendations. She’s not required by law to do any. But this truly seems as another attempt to show “superior virtues”! If she chooses to learn anything more at her age that’s her choice. Only to continue writing to the paper and offering a list of goals to achieve forgiveness weeks after the fact is a lack of ability to forgive in the first place. When she is done with these requests, who’s will she have to atone to next?

    Thursday, September 22 Report this

  • MargeS

    Not being able to use the swimming pool was the correct thing to do. The YMCA must follow Washington State Law. As to Ms Jaman whether she wants to apologize or not is up to her own conscience.

    Thursday, September 22 Report this

  • Justin Hale

    Great! We have a Seattle lawyer coming to PT and trying to school us on how we're supposed to live. Seattle is a total mess go sell crazy somewhere else.

    Thursday, September 22 Report this

  • MargeS

    Just in Hale Stop, take a breath and read this thoughtful article, remember freedom of speech. It also says Jeremy Woods spends as much time in Port Townsend as he can, and has a background in matters of workplace discrimination.

    Thursday, September 22 Report this

  • CodexSeraphinianus

    Does this Marge person ever once make an attempt to spell Justin’s name correctly? Prolly her superior virtues that don’t require her to do so. I guess if you don’t agree with folks name calling seems ok huh. Still can’t see the hypocrisy in most of our actions can we? When the argument is lost the unintelligent will resort to name calling. Then some again some (M) won’t argue, rather, just repeat and name call. See above!

    Thursday, September 22 Report this

  • Justin Hale

    I read the article, I disagree with much of it. It sounds like M.Woods has been involved in Seattle politics for some time, I look at the mess that Seattle has become and ask why would any sensible person want to emulate that here in PT.

    M.Jaman had the right to free speech, that right was taken from her by loud-mouthed jerks at that rally. M.Woods had every right to write his article, I am not obligated to agree with him.

    C.S, Justin Hale is not my real name, I adopted it years ago when I was working with the effort to legalize Cannabis. I found out a long time ago that using your real name in these comment sections can be risky.

    Thursday, September 22 Report this

  • MargeS

    I have always used my actual name, when commenting, when writing my blog, years ago and what's with this "Marge person" talk about snide remarks. Use your real name and I will give you some credibility and respect, until then your just another troll, afraid to take responsibility for your comments.

    Thursday, September 22 Report this

  • CodexSeraphinianus

    Ok fair enough. I’d hate to see any namephobia being used in our loving locale! I identify as CodexSeraphinianus. That’s my name. To not recognize it as such is considered a form of harassment. I thought this was an inclusive community where opinions were welcome and respected. Just sayin!

    So based on your previous statement “use your real name and I will give you some credibility and respect”. Wowwww. Read those words again.

    Sounds like that saddle is sitting pretty high!

    Thursday, September 22 Report this

  • MargeS

    Ha! Ha! I don't really care.

    Thursday, September 22 Report this

  • CodexSeraphinianus

    Typical left behavior!

    Friday, September 23 Report this

  • Justin Hale

    Good point C.S.

    M.S. seems to support a guy going into the women's shower if he says he's trans, but she bristles at people using a nom de plume. I wonder if she discounted the ideas of Mark Twain, George Orwell, or any number of notable writers.

    Friday, September 23 Report this

  • Justin Hale

    And maybe you should disregard anything Whoopi Goldberg says.

    Friday, September 23 Report this

  • banjowilly

    Justin - you complain about a Seattle lawyer coming to PT but you have never complained about a right-wing white supremacist militia group coming to PT. Why is that? You also continue the same old trope - this was not some random man who put on a wig to ogle seniors and children in the women’s locker room, but an employee who has for a long time identified as female and been vetted and background-checked before hire. Your continued twisting of the facts is fear-mongering and hateful. How do we even know you yourself are part of the PT community and not some right-wing three-percenter in Lewisville?

    Friday, September 23 Report this

  • chetzemoco

    "But when we mark someone out as suspicious or dangerous to those we consider vulnerable, we must remember our own bias. Too often, white people suspect that people of color are more violent because of their race."

    This is a terrible analogy. The author uses misdirection to accuse those who argue that the law puts women at risk of bias against trans people. That is, he means mark them as bigots and end the debate. While it's true that *some* people make a categorical error in conflating LGBT people with deviant or predatory behavior, the real issue is that the law allows disingenuous cis men to access private spaces, like women's bathrooms, that they should not. And while it is morally wrong (and usually illegal) to judge an individual by the behavior of the group to which that individual belongs, when it comes to the safety of women and children in public restrooms, it is absolutely relevant that 98% of acts of sexual violence are committed by men. By invoking the analogy above, the author is either asking the reader to overlook this figure or daring him to point out the plain fact that rates of violent crime are up to five times higher in *certain* communities of color.

    Friday, September 23 Report this

  • Justin Hale

    "you have never complained about a right-wing white supremacist militia group coming to PT. Why is that?"..... probably because I haven't seen any "opinion" articles from them in the Leader.

    The women in that shower room are not expected to know the psychological workings of what they see in front of them....a guy, their sense of privacy was violated.

    Friday, September 23 Report this

  • chetzemoco

    It is curious that the Leader will not publish any locally dissenting opinions on this matter, even one of moderate dissent, yet they are happy to solicit conforming perspectives from out of town.

    Saturday, September 24 Report this

  • CodexSeraphinianus

    To have any difference of opinion here would burst the PT safety bubble. Heads might explode if they found out that not everyone outside of this community is a racist or bigot because they don’t agree with some issues.

    Whoopi and her show are quite vile and I feel sympathy for anyone who follows that line of hate.

    Also, how many violent interactions have occurred when right wing militias or three percenters have come to PT? I count zero but stand to be corrected if necessary. I look back at Julie’s article and it appears there was more hate and violence purported on her and her supporters than any other situation. Just a personal observation.

    Saturday, September 24 Report this

  • chetzemoco

    "The law is always changing because it recognizes we are imperfect. We make mistakes and we do not always understand or empathize easily with experiences other than our own."

    We're supposed to fall all over ourselves because the author can cite a bunch of Title VII case law, devoting the majority of his article to it, but even as he acknowledges that the law is not immutable, he is unwilling to anticipate reasonable objections to Title VII when it pertains to the intersection of gender identity and the specific realms of sports, prisons, and restrooms.

    Saturday, September 24 Report this