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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.

Friday, June 2, 2006

News: "He-She" Redux

I reported last month on a 6th Circuit case in which the trial judge dismissed the case before it got to a jury, ruling that the employer's use of the term "he-she" did not show discrimination. The Sixth Circuit affirmed a few days ago, in Myers v. Cuyahoga County, Ohio

The Court noted that the law requires an employment discrimination plaintiff to show (1) she is a member of a protected class; (2) she experienced an adverse employment action; (3) she was qualified for the position in question; and (4) she was replaced by a person outside the protected class or she was treated differently than a similarly situated non-protected employee.

The Court acknowledged, as did the trial court, that Myers satisfied the first three steps, but said that the "he-she" remark was not sufficient evidence to satisfy the fourth step. The Court also rebuked the lower court for misquoting the law, failing to recognize that Myers could meet the fourth step by showing that she was replaced by person outside the protected class. However, the Court said there was no harm done, as she made no allegation that her replacement was "gender-conforming."

The Court went on to say that even if she had shown that her replacement were "gender-conforming", she, as the plaintiff, was legally required on this "summary judgment motion" to provide enough evidence to show that her claim had merit: that her disciplinary infractions really were a pretext for sex discrimination. The Court said she did not show that there was a "genuine dispute" on this point.

"We agree with Myers that calling a transsexual or transgendered person a "he/she" is a deeply insulting and offensive slur, and we agree that using that term is strongly indicative of a negative animus towards gender nonconforming people. In the context of all the evidence in this case, however, we cannot conclude that the statement by itself is sufficient to create a jury question on the issue of pretext....That isolated remark was remote in time from Myers's termination--the remark was made sometime in 1996 or 1997, several years before the problems with Myers's performance in late 1998 and 1999 that led to her disciplinary offenses and ultimately her termination--and there is no evidence that the remark was related to Cuyahoga County's decision to terminate her. Additionally, there is significant evidence to support Cuyahoga County's claim that the proffered reason for terminating Myers--that she was behaving in inappropriate and insulting ways towards her co-workers and clients--is credible and genuine. Had Myers been able to produce any evidence to call into question the legitimacy of Cuyahoga County's stated reason for firing her, perhaps by discovering some evidence that the disciplinary complaints against her were exaggerated or solicited by Caraballo, then that evidence in combination with the "he/she" comment might have been sufficient to raise a jury question on the issue of pretext. But Myers has not presented a shred of evidence to undermine the credibility of the County's explanation for her termination."

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