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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Wednesday, June 28, 2006

Law: The Reprise of the Transgender Plaintiffs

My goodness, things are quiet on the news front. So therefore, I continue with snippets of what I'm writing for my latest law review article. Working title: "The U.S. Supreme Court and Transgender Coverage of Title VII."

Yesterday, I blogged about the first pro-transgender US legal opinion, and how it was smacked down by the 7th Circuit Court of Appeals, ushering in another twenty years of non-protection for transgender employees under Title VII.

In 2001, more than twenty-five years after Judge Barlow issued the first opinion on this issue, Judge Kathleen O'Malley, of the District Court for the Northern District of Ohio, decided Doe v. United Consumer Financial Services (2001 WL 34350174). The defense made the usual motion to dismiss, trotting out Judge Barlow's arguments again, and no doubt expecting another slam dunk. It found Judge O'Malley surprisingly unsympathetic, partly because the plaintiff's lawyer totally switched legal tactics. Instead of the usual losing argument that "sex" includes "sex reassignment", plaintiff's counsel raised two new developments in Title VII law.

The first was the 1989 holding by the U.S. Supreme Court, in Price Waterhouse v. Hopkins, that discrimination against women based on their failure to conform to female stereotypes violates Title VII. This eliminated the requirement that plaintiffs prove that the employer discriminated against all women, a very difficult thing to prove. That could be defeated simply by showing that other women were employed there. Now, plaintiff only needed to show that the employer discriminated against this woman, and that it was based on her failure to conform to female stereotypes.

The second was the 1998 Supreme Court holding, in Oncale v. Sundowner Offshore Services, that Title VII "sex" not only includes discrimination against men, but prohibits same-sex harassment involving sexual connotations that creates a hostile working environment. This eliminated the need to argue about whether the transgender employee was terminated because of being female, or male, or whatever.

Based on these cases, Judge O'Malley accepted the argument that it can longer be of any importance whether a plaintiff is a man or a woman, and discrimination against an employee is actionable if it is based on failure to conform to sex stereotypes, whether male or female. Thus, it would be a violation of Title VII to discriminate against any employee, whether transgender or non-transgender, because they fail to conform to stereotypes about how males or females should look and act.

Judge O'Malley quoted language from the Oncale opinion that specifically disavowed the search for Congressional intent that Judge Barlow (and the later 7th Circuit Ulane opinion) thought so crucial.



Moreover, Ulane' s reliance on Congressional intent is at odds with Oncale v. Sundowner Offshore Services. In holding that male-on-male workplace harassment may be actionable, the Oncale Court acknowledged that it was applying Title VII to a situation not likely considered by Congress when it passed the Civil Rights Act, and advised, "[S]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed."

Thus, according to Judge O'Malley, whether or not Congress intended to protect transgender employees, they would be protected if they fit within the statutory requirements. She declined to say whether Ulane remained good law, but nonetheless decided that Doe stated an actionable Title VII claim.

In this case, Doe's co-workers called her "Mrs. Doubtfire" behind her back. After receiving a complaint that "a man dressed as a woman was using the ladies room," United Consumer questioned her about her gender. Ciszczson asked her, "Are you a man or a woman?" and, "What gender are you? ... Just looking at you I can't tell." Doe disclosed that she has been a transgendered woman since 1973. United Consumer fired her the next day.

Under these facts, it is certainly conceivable that she was fired for no reason other than the fact that she was a transsexual, and that her claim is, thus, precluded by Ulane. But, it is also conceivable that her transgendered status was not the sole issue, and that her termination may have been based, at least in part, on the fact that her appearance and behavior did not meet United Consumer's gender expectations.

Under Judge O'Malley's rubric, the key to an actionable Title VII claim for transgender employees is the allegation that the discrimination was based on the employee's failure to conform to sex stereotypes, and not the employee's transgender status or sex reassigment surgery (or intent to undergo same). The case, I understand, was settled without an appeal, leaving Judge O'Malley's Doe opinion in place as precedent for future cases.

Next week, I will discuss the cases after Doe that have created a major split among the federal courts that will likely bring this issue before the U.S. Supreme Court in the next five years or so. Tomorrow, I'm off for a week to the cabin in the woods that has no internet access. I'm going to try to post from there, but it may be intermittent. However, given that this blog is receiving about 300 hits a week, I will do my darnest not to disappoint my public.

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