The story broke last Thursday: "Largo official plans sex change."
The story involves Steve (Susan) Stanton, city manager of Largo, Florida. Stanton had planned to announce his* decision in June so his son could be out of town. But that changed after the St. Petersburg Times heard of possible changes in Stanton's life and approached him.
This type of behavior by the media, often referred to as "outing," is questionable, and may be a violation of the right of privacy of a public official. See Celebrity Privacy Rights And Free Speech: Recalibrating Tort Remedies For "Outed" Celebrities, 32 Harvard Civil Rights-Civil Liberties Law Review 449 (1997); "Outing" And Freedom Of The Press: Sexual Orientation's Challenge To The Supreme Court's Categorical Jurisprudence, 77 Cornell Law Review 103 (1991).
Yesterday, the City Commission that employed Stanton voted to fire him based on these revelations. This reaction is not surprising in light of the Largo City Commission’s votes against proposed ordinances protecting city employees from discrimination based on sexual orientation and gender identity in 2002 and 2003, as well as 2006. It is also ironic, in light of the argument made by some commissioners that Largo didn’t need such an ordinance. It is particularly unfortunate in its connection to the recent murder by a Largo resident of a transgender person, Reshae McCauley.
The question I’m interested in addressing is whether Stanton’s firing subjects Largo to liability for employment discrimination. I think it does, though the analysis is not a simple one.
The St. Petersburg Times published an article discussing the ins and outs of the law on this issue as well as a newspaper can discuss it, which is, of course, not much at all.
As most of you know, there is no federal law explicitly prohibiting employment discrimination based on gender identity or expression, and there's none in Florida either. Largo itself rejected three times a proposed ordinance on the subject. This would seem to indicate that Stanton is out of luck. But the law is tricky, so make sure you're holding you're lucky rabbit's foot when you try to make predictions.
Some federal courts have recently held that “sex discrimination,” which is explicitly prohibited by federal law, includes discrimination based on transgender identity. These courts include the Federal Sixth Circuit Court of Appeals (covering Ohio, Michigan, Kentucky and Tennessee) as well as seven federal district courts in Arizona, District of Columbia, New York, Oregon, Pennsylvania, Tennessee, and Washington.
The bad news is that none of these are in Florida, and so their rulings don’t bind the federal courts in Florida. In fact, the Federal District Court for the Middle District of Florida, which covers Largo, indicated that discrimination based on transsexuality didn’t seem to be covered by Title VII, the federal law prohibiting employment discrimination. Cox v. Denny's, Inc., 1999 WL 1317785 (M.D.Fla.,1999). However, there are favorable indications. The court did permit the transsexual plaintiff to assert a claim of sexual harassment, though it found the harassment not sufficiently severe or pervasive to rule in his favor. Furthermore, it based its statement about discrimination based on transsexuality on the fact that, in 1999, the courts were then unanimous in finding discrimination based on transsexuality not actionable under Title VII. Since many courts have since decided that discrimination based on transsexuality is actionable under Title VII, perhaps the Middle District courts will change their minds.
A positive signal in this regard is the recent federal case of Mowery v. Escambia County Utilities Authority, 2006 WL 327965 (N.D.Fla. 2006). The court said that discrimination based on “perceived failure to conform to a masculine gender role” could be actionable. It favorably quoted from several cases suggesting that transgender discrimination is sex discrimination. It mentioned Rosa v. Park West Bank, 214 F.3d 213, 215-16 (1st Cir.2000), which found that a bank was liable for sex discrimination if it refused to serve a customer whose dress "did not accord with his male gender", and Simonton v. Runyon, 232 F.3d 33, 38 (2d Cir.2000), which held that disparate treatment based on nonconformity with sexual stereotypes is sex discrimination", and Centola v. Potter, 183 F.Supp.2d 403, 410 (D.Mass.2002), in which the court refused to dismiss a lawsuit in which co-workers may have perceived the plaintiff as "impermissibly feminine for a man", and Ianetta v. Putnam Investments, Inc., 2002 U.S. Dist. LEXIS 3277, (D.Mass.2001), in which the court permitted a lawsuit alleging discrimination because the plaintiff did not conform to the male gender stereotype. These favorable quotes signal that the Mowery court is leaning in favor of the idea that transgender discrimination is sex discrimination. Although the Mowery case is in the Northern District of Florida, and not the Middle District which covers Largo, recent opinions on exactly the same issue by nearby jurisdictions are often considered very persuasive.
Interestingly, the Eleventh Circuit may be in on the fun too. The Eleventh Circuit, which covers appeals from the federal courts in Florida, Georgia and Alabama, is often considered very conservative. This is not true in every area, however, for it is quite progressive in the area of sex discrimination. For example, it ruled in favor of male plaintiffs who alleged sexual harassment by other males in 1997, a time when more conservative circuits were throwing out such claims on the ground that they were not motivated by “sex.” Its decision in Fredette v. BVP Management Associates, 112 F.3d 1503 (11th Cir. 1997), anticipated by a year the Supreme Court’s surprising Oncale decision, which permitted male-on-male sexual harassment claims. The Oncale decision is considered by some to be an opinion which implicitly recognizes that “sex discrimination” includes discrimination based on gendered behavior, whether or not sexually motivated. Based on this analysis, a suit by Stanton in federal court alleging violation of Title VII, the federal anti-discrimination statute, could prove a winner, if all the stars lined up just right.
One of the things that may get in the way of those stars is the fact that Title VII, by its own terms, doesn’t apply to “any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision.” 42 USC 2000e-2(f). Is Stanton a member of the “personal staff” of the elected officials of the City Commission? Is she “an appointee on the policymaking level?” These might be some of those “who knows?” type questions. Fortunately, dear Reader, the courts have set some guidelines on these issues.
In determining whether a public employee falls within the “policymaking level” exception to Title VII, the looks at whether: (1) the employee has discretionary, rather than solely administrative powers; (2) the employee serves at the pleasure of the appointing authority; and (3) the employee formulates policy. In Gomez v. City of Eagle Pass, 91 F.Supp.2d 1000 (W.D.Tex. 2000), the federal court held that the City Manager was not a "policymaker" for purposes of determining whether position was subject to Title VII, even if the city manager had power to fire and hire. The city council held power to determine city policy, the city manager was responsible only for ministerial execution of the laws and the administration of city, and the city manager's personnel decisions were circumscribed by local custom, city ordinances, state statutes and the city charter.
In regard to the “personal staff” exception, the Gomez court looked at (1) whether the elected official has plenary powers of appointment and removal, (2) whether the person in the position is personally accountable to only that elected official, (3) whether the in the position at issue represents an elected official in eyes of public, (4) whether the elected official exercises a considerable amount of control over position, (5) the level of the position within the organization's chain of command, and (6) the actual intimacy of the working relationship between the elected official and the person filling the position. The court found that the City Commission was not an "official," so the exception did not apply.
The same thing happened recently in Alabama. In Horne v. Russell County Commissioners, 379 F.Supp.2d 1305 (M.D.Ala. 2005), the federal court in Alabama found that the County Administrator, hired by the County Board, did not fall within the exceptions, because the plain language of the statute does not encompass persons who serve at the direction of a board or body of public officials, rather than a single public official. There is even a case in the Eleventh Circuit Court of Appeals, which covers appeals from Florida federal courts, that has recognized that a City Manager in Florida can sue the City Commission for gender discrimination, although the plaintiff lost in that case. Lyes v. City of Riviera Beach, Fla., 166 F.3d 1332 (11th Cir. 1999). The Eleventh Circuit has also noted that "other courts, often citing the legislative history of Title VII, have also concluded that the ... personal staff exemption ... is to be narrowly construed." E.E.O.C. v. Reno, 758 F.2d 581, 584 (11th Cir.1985). So Title VII covers Stanton, and the exceptions for public policymakers and staff of elected officials do not apply.
As a side note, Mr. Stanton also has a cause of action for violation of due process against the State and City under the federal constitution. A tenured employee is entitled to oral or written notice of the charges against him, and a hearing before an unbiased decision-maker. McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994). Obviously, there is a claim of bias against the City Commission here. The catch-22 of McKinney, however, is that the ruling must be appealed to the state court within 30 days of the City Commission’s decision in a procedure called “writ of certiorari,” as set forth in the Florida Civil Procedure Rule 1.630, and the Florida case of Stansberry v. City of Lake Helen, 425 So.2d 1157 (Fla.App. 1982). If this writ is not filed within 30 days, then the federal courts will throw out any later claim of due process violation because the employee didn’t give the State a chance to correct the violation.
Above I’ve discussed federal rights, but there is law on the state level that could give grounds for a lawsuit. Although Florida has no statute explicitly prohibiting discrimination on the basis of gender identity, the Florida Division of Administrative Hearings has ruled that an individual with “gender dysphoria,” a medical term for transsexuality, is within the disability coverage of the Florida Human Rights Act. Smith v. City of Jacksonville Correctional Inst., 1991 WL 833882 (Fla. Div. Admin. Hrgs. 1991). In that case, the tribunal found that a corrections officer who was dismissed upon revealing transsexuality was protected from dismissal based upon the disability created by the perceptions of the employer. The tribunal also rejected the employer's claim that inmates would not respect a transsexual, thus making non-transsexuality a "bona fide occupational qualification." If the Smith case is applied to Mr. Stanton's case, then discrimination based on his gender identity is discrimination based on perceived disability within the conception of Florida state law, and the claim that city residents and employees will not respect Stanton after transition cannot be used as a justification. In the St. Petersburg Times story on the legal issues, the paper quoted Tampa lawyer Theresa Gallion, a managing partner at Fisher & Phillips, a national labor and employment law firm, who cautioned against putting too much stock in that case, noting that it is not binding on Florida courts.
"The bottom line is that there are very few protections unless you live in one of the states" that specifically list transgender people in their antidiscrimination laws, she said.
She's right, of course, that the Florida Division of Administrative Hearings decision is not binding on other Florida courts outside the administrative system, but the decision points in Stanton's direction, and against the City Commission. But then Ms. Gallion should be expected to side with management, as her firm, Fisher & Phillips, only represents management.
Strangely enough, after all the talk about how Largo voted down three proposed ordinances covering gender identity, there is, in fact, a city policy that could provide protection to Stanton. HRC reported that Largo approved such a policy after the 2003 proposal was defeated, as set forth below. Here's a quote from that policy as found on the internet:
“Human Resources Director Sinz reports that the City Commission has approved the Discrimination and Harassment Prohibition policy effective immediately. The new policy specifically prohibits bias, prejudice, intimidation, coercion and harassment by any City employee at the work place, during business trips, or at City functions. The new policy mandates treating all human beings with respect regardless of race, religion, national origin, gender, age, disability, sexual orientation, and gender identity or expression.”
This new policy was also reported in the local papers in 2004. So Stanton has federal, state and local law potentially protecting him from dismissal on the basis of gender identity. If I were on the City Commission of Largo, I’d call the City’s insurance agent ASAP to check on the litigation coverage.
(*NCLR, which is representing Stanton, has issued a release noting that it will "use male pronouns out of respect for Steve’s preference for their use by those who aren’t his close family and friends until he begins his transition.")