Jeremy Wood

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.)