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Sunday, March 25, 2007

Stanton v. Largo: Text, Subtext and Pretext

My previous posts on the Stanton case analyzed in detail the law governing the question of whether transsexuality is a protected category, concluding that it is. (I'd like to note Joanna Grossman's interesting article on these issues, though I think her conclusions a bit more pessimistic than necessary.)

This might seem to some like the end of the inquiry in regard to the question of whether a lawsuit by Stanton would succeed. Duh - the Largo City Commission acted after he revealed his transsexuality. Post hoc ergo propter hoc.

But it's not enough to suggest a discriminatory motive in an employment discrimination lawsuit. One has to prove, to decisionmakers who know little or nothing about transsexuality, by a preponderance of the evidence, that the employer actually acted based on this motive. Just like the coin toss at the carnival, hitting the target on this one is harder than it seems. There are no employers dumb enough to admit to firing someone based on a category that is protected. If they feel the need to fire such an employee, they look carefully to find reasons not based on the protected category, like poor work performance. When and if the matter goes to a tribunal, they trot out all these facts that could have supported termination. If the decision-maker (jury, judge or human rights commission) isn't convinced that the employer acted from the discriminatory motive, the employee loses the case.

Text and Subtext

The apparent simplicity of the conclusion that the City Commission acted based on discriminatory motive stems from the fact that we do not read the events in a vacuum. There's the text of what happened - Steve Stanton's transgender identity is revealed, citizens of Largo complain, the City Commission holds a hearing, various complaints are aired, and the City Commission votes to terminate. But we read into these texts a "subtext" - an underlying implicit meaning. If we're knowledgeable about transsexuality and sympathetic to the cause, we understand that Stanton acted in accordance with best practices in his communications plan, and his excursions as "Susan" were nothing more than nascent transsexual development. If, on the other hand, we view transsexuals in the same category as pedophiles and kleptomaniacs, we view his communications plan as deceptive and his excusions as "Susan" as a compulsive dishonesty comparable to that of pedophiles and kleptomaniacs.

Some have noted that the City Commission seemed to have their minds made up already, and that the information they received on transsexuality at the second hearing seemed to make no difference. My blogging friends have all noted this.

[We] watched the Largo City Commission's sham proceedings as they pretended to give Steve Stanton his day in court... Life, Law and Gender

it’s obvious the commissioners went in with their minds made up ahead of time, & all of the people who waited hours to testify were wasting their time & their breath. (En)gender

The only change seems to be in the definition in the minds of these people who opposed Stanton's continued employment is that if only they had known about Stanton's personal medical decision before hiring him, they wouldn't have offered him the job. Pam's House Blend

Obviously they cannot get past an outdated, ill-informed mindset, one that no doubt
swelled to bloated dimensions in recent weeks, feeding as it did on juicy sound
bites of bigoted religious dogma.
Shakespeare's Sister

Several weeks before news of Stanton's intention were made known, the Council had praised him for doing such a great job as City Manager. After Stanton's intentions became known, it was thought that he would be ineffective due to the sex change. Daily Kos

And etc:

http://litbrit.blogspot.com/2007/03/largo-fires-steve-stanton.html http://pushingrope.blogspot.com/2007/03/largo-fires-steve-stanton.html http://www.blogsheroes.com/feed/largofiresstevestanton http://www.newzblogz.com/blogs/jonstewart/224528.html?crowd-came-to-praise-stanton

And such observations seem sound enough if you believe, as I do, that the subtext here was to get rid of the difficult issue of transsexuality, upon which much of the opposition testimony focused. After all, the City Commission did not deliberate at all after the three hours of testimony. Instead, without so much as a five minute break, three Commissioners read what seemed to be prepared statements protesting that transsexuality was NOT the reason, proffering neutral reasons for the firing, and they again took a vote, in which each Commissioner voted exactly the same way they did before. The natural conclusion, given my subtext, from such procedure is that the neutral reasons were a pretext for the real reason, i.e., Stanton's gender identity.

Subtext and Pretext

A "pretext" is a reason concocted after the fact to conceal the real reason. For example, if a young child is caught in the act of climbing up the bookshelf where the cookie jar was hidden, in an attempt to take the forbidden cookies, and is asked "why did you climb up there when I told you not to?", the budding young politician may say "I was trying to get my book." This is a pretext, and the parent, knowing the subtext of the safeguarded cookie jar, will smell a lie. But if the parent is not home, and the young ruffian is being watched by too-easily-taken-in Aunt Matilda, then the text is not detected as pretext because the subtext is missing. These pretext cases happen all the time in the employment lawyer's world. Every plaintiff in a protected category is smelling a rat and shouting "PRETEXT!" from the rafters, and every employer is giving an innocent "who-me?" smile and twirling his or her fingers next to their temples, implying that the disgruntled employee is a feverish conspiracy theorist on crack. Who you believe is based on your subtext.This is why a legal mind none other than Workplace Prof Blog says the following:

In fact, although the city's legitimate non-discriminatory reason for firing Stanton appears to be that he bullied other employees, such concerns only came to the fore after Stanton announced that he planned to go under gender reassignment surgery to become a woman in Summer 2008. Also, prior to his announcement, Stanton received good performance reviews and a large raise in pay. Seems like a pretty good pretext case based on just an initial analysis of the surrounding facts. Workplace Prof Blog

(I must beg to differ with my learned friend. I don't think that the city's reason was bullying other employees. After all, I listened to all six hours of testimony, and did not hear the Commissioners mention that at the end, though some employees did. Instead, they raised the issues of dishonesty, untrustworthiness and disruptiveness.) [Update: color me wrong. Check out this article where one of the Commissioners says it was bullying.

I do wholeheartedly agree with the sage-like Workplace Prof Blog about the rest. But note the wiggle words that every lawyer, including me, uses to qualify their opinion, as they rightly should: "seems like a pretty good pretext case based on just an initial analysis..." He's not saying its a sure winner - just seems pretty good when first looked at. But when it comes to litigation, the material gets chewed over and spun a dozen ways by the time its all over and done. There is no knowing what subtext the decision-maker, whether jury, judge or human rights commission, will have, and each lawyer tries desperately to communicate that subtext in everything they say and do, hoping the decision-maker will pick it up and run with it. Assuming that the decision-maker has the same subtext you do is something no lawyer can afford to do. But realizing that you have a subtext, number one, and pulling it out of your mind like Dumbledore's pensieve so you see the case from the decision-maker's point of view, number two -- well, that takes three years of law school and a few years of practicing law before you really understand the meat-grinder-like nature of litigation.

My point is that it is not enough to show the presence of a discriminatory motive. If the employer, in this case the City of Largo, could point to the presence of a proper motive to terminate him -- such as dishonesty, untrustworthiness, disruptiveness, poor managerial judgment, or improper treatment of employees -- these would constitute a defense to the charge of discrimination, despite the fact that their decision waited until his revelation about transsexuality came out. They don’t have to prove that they relied on the discriminatory motive, just that it it exists. The employee has to prove that they didn’t rely on the legitimate motive. Without X-raying the heads of the City Commission of Largo (which might prove a very interesting experiment), it is difficult to say what was in their minds, if anything.

The City Commissioners who voted against said that his disclosure came too late and was done improperly, causing disruption and loss of confidence. Of course, those of us sympathetic to Stanton will say that his careful plan was disrupted by the mean old St. Pete Times, as Mr. Stanton did in his speech to the City Commission. Those unsympathetic will say, as some of the speakers did that evening, that Stanton rigged it to happen this way, so he could say that the problem was the St. Pete Times, and not his deceptiveness, and dintcha notice how he says he doesn't blame the St. Pete Times (conspiracy!!!!).

Back to the subtext to prove the pretext: People who are ready to believe that the City Commission of Largo are a bunch of hick bigots will think it a pretext, and people who are ready to believe that Steve Stanton is happy to be the center of a media circus will dismiss his protestations that he did the best he could in trying to bring this out discreetly. How to resolve this logjam?

Legal Procedure

The key here is the legal procedure. The courts have long understood that figuring out what constitutes discrimination can be confusing. When the Civil Rights Act of 1964 was passed, the law for hundreds of years in America had always been “employment at will,” meaning the employer can dismiss an employee for any reason, or no reason at all. “I don’t like your face” was sufficient, and if the issue were the color of that face, so be it. The Civil Rights Act constituted a legislative exception to that rule. It said that certain reasons were illegal, specifically race, color, sex, religion and national origin. Thus, the fact that employment is called "at will" does not mean that discriminatory reasons for termination are permissible. A number of bloggers have noted that Stanton's contract calls for "at will" employment, implying that he therefore cannot complain about discrimination. But this misunderstands the Civil Rights Act of 1964 and similar statutes; such statutes supercede the "at-will" concept.

Employers quickly figured out that this was serious business, and stopped running those “no Irish need apply” ads. However, if you’re a manager, even one who doesn’t want to discriminate, you don’t necessarily want the pain of dealing with new cultural demographics in your workforce that are disruptive to the business because of the prejudices of your existing workforce. So you document your human resources decisions with reasons that are facially legal, even if you’re Boss Hogg on the inside. So now courts are faced with he-said-she-said: any poorly-performing employee can point to one of these categories, and any discriminatory manager can come up with a rationalization to fire pretty much anyone. It is a case of the irresistible force meeting the immovable object.

It’s also like the joke about the famous rabbi to whom all the villagers brought their disputes. The wife complained that her husband never listened to her ideas because he despised her, following with a dozen examples. The rabbi listened to her story, wisely stroked his beard and said “You’re right, that’s terrible!” The husband, on the other hand, said he loved his wife more than anything in the world but her ideas made no sense, and gave two dozen examples. The rabbi stroked his beard again and said “You’re right, that’s ridiculous!” The rabbi’s wife then came out and said to her husband “How can you say they’re both right? They came to you for advice!” The rabbi again stroked his beard and said to his wife: “You’re also right!”

The Supreme Court first addressed this issue in 1973, nine years after the Civil Rights Act was passed. Mr. Green was a Black citizen of St. Louis who worked for aerospace manufacturer McDonnell Douglas as a mechanic and laboratory technician. He was laid off in the course of a general reduction in workforce. A long-time activist in the civil rights movement, Green protested vigorously that his discharge and the general hiring practices of petitioner were racially motivated. As part of this protest, respondent and other members of the Congress on Racial Equality illegally stalled their cars on the main roads leading to petitioner's plant for the purpose of blocking access to it at the time of the morning shift change. He may also have been involved in a "lock-in," wherein a chain and padlock were placed on the front door of a building to prevent certain of petitioner's employees from leaving. Three weeks later, the company publicly advertised for qualified mechanics, and Green applied. He was turned down based on his participation in the protests. He filed a formal complaint with the Equal Employment Opportunity Commission.

A complicated procedural history ensued, but the bottom line was that the Eighth Circuit Court of Appeals said that Green had established a “prima facie” case of racial discrimination. “Prima facie” is Latin for “first impression” and is used in law to indicate that the plaintiff has come up with enough smoke to show there’s probably a fire. In other words, he had shown enough facts to establish a probable discriminatory motive. But the appeals court also said that McDonnell Douglas had showed that it had a good reason to fire him, being Green’s illegal activities in pursuit of the protest, which might indicate a lack of a responsible attitude toward performing work for that employer. Green could not deny his involvement in the illegal activities. So what to do when the irresistible force meets the immovable object?

The Supreme Court said that Green did not have to disprove the employer’s reason. Rather, he could show that McDonnell’s stated reason for rejecting his application was, in fact, a pretext. The Court gave some examples of how a pretext might be shown. “Especially relevant to such a showing would be evidence that white employees involved in acts against petitioner of comparable seriousness to the "stall-in" were nevertheless retained or rehired. Petitioner may justifiably refuse to rehire one who was engaged in unlawful, disruptive acts against it, but only if this criterion is applied alike to members of all races.” Joanna Grossman, in her excellent Findlaw.com article on the Desert Palace decision, suggests the following example. “For instance, she might show the jury the interviewer's notes on her, and point out a little doodle of her in a short skirt under the heading ‘personality.’”

Thus, an employee suing for discrimination can win if he or she can show either 1) the employer’s articulated reason is untrue, or 2) the employer’s articulated reason is true, but a pretext designed to cover up a discriminatory motive. If the jury believes that the employee has proven either one of these situations by a preponderance of the evidence, and the employee has also shown that the employer in fact relied on a discriminatory motive, then the plaintiff wins.

This is a good start, but it doesn’t address what to do if, as happens in many cases, the decision is based on mixed motives – one legal and one illegal. For example, an employee is fired, and is told by the manager “Not only do I hate Muslims in general, but particularly poorly performing ones like you.” Does the employee have a case if she has genuinely poor performance? Does Stanton have a case if the City of Largo can show that he acted in a way that it could reasonably interpret as dishonest, disruptive, untrustworthy, poor managerial judgment or improper treatment of employees?

Congress dealt with this problem in its amendments to Title VII in the Civil Rights Act of 1991. It is illegal for a prohibited characteristic to be "a motivating factor for any employment practice, even though other factors also motivated the practice." However, if an employer can show that it would have taken the same action even without the discriminatory motive, the plaintiff cannot collect damages. However, the plaintiff can still hold the defendant liable and obtain injunctive relief and attorneys' fees, both potentially valuable remedies.

Thus, the City of Largo can defend against a claim by Stanton by showing legal reasons for his firing – dishonesty, untrustworthiness, disruptiveness, poor managerial judgment, or improper treatment of employees. It’s then up to Stanton either to disprove the existence of these allegations, or to show that they were, in fact, a pretext for discrimination.

Evaluating the City’s Defenses

The first three defenses are different from the last two. The first three directly relate to Stanton’s transsexuality. The claim there is that he didn’t come out soon enough, and that even though the newspaper revelations don’t seem to be his fault, his communications plan was faulty, leading to disruption in the city, and his behavior in going out as “Susan” before telling them was an dishonest and untrustworthy action. Of course, his defense to that, as set forth in the testimony arranged by his attorney at the second hearing, is to disprove these allegations. His attorney brought out testimony, though limited in the context of a short commission-style hearing, that his communications plan was, in fact, a good one as compared to best practices, and his actions in going out as “Susan” were simply part of the normal developmental course in cases of transsexuality. These issues are very new for the courts, and it is hard to say how the Florida Commission on Human Relations or a court would understand these issues. I’m not sure I understand them myself. But I think Stanton’s attorney did a great job of presenting these issues at the second hearing, and I think she has a lot more arrows in that quiver.

The last two potential defenses of the City, however, are more traditional, in that they bring up situations that existed before Stanton came out. I don’t think the issue of poor managerial judgment, independent of the transsexuality issue, was brought up at all during the hearings. In fact, it seems that everyone agreed that his managerial skills were top-notch, as evidenced by improvements in the town facilities and services. No one got up and said “this town is a dump and I can’t get my garbage collected.”

There were allegations, however, of improper treatment of employees, resulting in unfairness and poor morale. This consisted of two types of things: 1) telling employees that “he owned their mouth 24 hours a day,” and 2) firing employees for reasons perceived to be unduly harsh. The first one is a little unclear, but it seems to relate to a fairly common issue in governmental employment- what are the First Amendment rights of employees? In private enterprise, if an employee says rude things about his or her employer off the premises, the boss is entitled to fire them. However, in government service, an employee who speaks as a citizen, and on a matter of public concern is entitled to protection under the First Amendment to the US Constitution, as well as state constitutions. This is subject to all sorts of exceptions, and the law on this issue is as clear as mud. It’s an interesting side-issue, but I’m not going to review it here. Here’s a good article on the issue.

The second allegation, that of firing employees for reasons perceived to be unduly harsh, presents a problem for the City of Largo. According to newspaper accounts, this conduct had been previously brought to the attention of the City Commission, but no action was taken against him, and in fact, he was subsequently given good performance reviews and raises. If that is true, their assertion of the conduct is going to fall very flat. In fact, it may even result in the City Commission appearing to be deceptive. I would imagine any attorney advising them is going to tell them to forget about using improper treatment of employees as a defense. But see this article about one of the Commissioners defending her decision on this basis. (Ouch - her admissions are going to hurt Largo in any suit.)

"Gentry said she had concerns about his dealings with employees before. She mentioned them to him, but she didn't push him to change. She didn't want to micromanage him. But once Stanton announced his intentions - and requested the City Commission grant him the time to convince city employees he could do his job as a woman - Gentry said she felt it was time to scrutinize personnel issues more closely."

Of course, if the other City Commissioners were unaware of these issues until after his relevation, then such job performance issues could be very effective against Stanton. Stanton would, of course, have the opportunity to show that the reliance on these allegations is a pretext, but how would he show it? Have other Largo city managers done similar things and gotten a pass? Dunno, and I wouldn’t want to have to try to find out.

In conclusion, it’s my sense that, in order to win an employment discrimination case, Mr. Stanton would have to convince a decision-maker that he did not, in fact, act deceptively, disruptively or in an untrustworthy manner. I think he could do it.

Of course, whether he will be up to the emotional, financial and physical strain of litigation during his gender transition is another question. That's a difficult choice. It's at this point that most of your support structure departs for points unknown. Families, friends, homes, careers, money - all go right out the window - whoosh. My ex took my son and moved 150 miles away, I couldn't get my family and friends to return phone calls, my legal career ended, and I gave whatever money I had to my ex in exchange for my guilt at being who I am. That I'm still alive is a miracle. So I wish him luck and godspeed whatever his decision. But I'm sure he understands that its a tough road. We all do, when we open that door and step through. But there's really no choice.

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