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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.

Tuesday, March 20, 2007

Update on Law Covering Steve Stanton

I last reviewed the Florida state law addressing transgender employment issues in my post of March 1. Since then, I've found two more decisions of the Florida Commission on Human Relations (hat tip to the Daniel Ruth Show Blog). These merit discussion as they complicate the situation somewhat.

The statutes governing human rights violations also merit discussion, as these would be a basis for any relief before the Florida Commission on Human Rights or a court. The Florida Civil Rights Act, Florida Statutes §§ 760.01 et seq, says that it is an unlawful employment practice for an employer to discharge any individual because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status. The statute specifically includes municipal employees. Any person aggrieved by a violation may file a complaint with the commission within 365 days of the alleged violation. In lieu of filing the complaint with the commission, a complaint under this section may be filed with the federal Equal Employment Opportunity Commission or with any unit of government of the state which is a fair-employment-practice agency. In summary, this statute says that employment discrimination is illegal and can be contested in the Florida Commission on Human Relations.

Employment discrimination is also prohibited by another Florida state statute that specifically addresses employment by a government subdivision, such as a city commission. Florida Statute § 112.042 says that it is against the public policy of Florida for the governing body of any county or municipality, solely because of the race, color, national origin, sex, handicap, or religious creed of any individual, to discharge from employment such individuals, if the individual is the most competent and able to perform the services required. (Notice that last phrase, which adds an additional requirement not found in the Florida Civil Rights Act.) Any person who is aggrieved by any decision of any county or municipal commission may apply to such agency, board, commission, or department at any time for a modification or rescission thereof. If such modification or rescission is refused, any such person may, within 30 days after such refusal, but not thereafter, institute original proceedings for relief in the circuit court of the county. In summary, this statute says that employment discrimination in government employment is illegal and can be brought before the Florida circuit courts.

Under these two statutes, Mr. Stanton could bring a case before the Florida Commission on Human Relations and/or a Florida circuit court. These remedies are concurrent, meaning that both can be pursued at the same time, as the court found in Housing Authority of City of Sanford v. Billingslea, 464 So.2d 1221 (Fla.App. 5th Dist. 1985). A plaintiff's lawyer, seeing two different forums for relief, is going to want to know which one is better for the client.

As I've noted previously, making predictions of how a court or tribunal will interpret the law is tricky, so make sure you're holding you're lucky rabbit's foot when you try. One of the best ways to shore up your predictions is to find other decisions on similar cases. As I discussed in my post of March 1, there is a decision from the Florida Commission on Human Relations that goes in favor of Mr. Stanton. I've since discovered two more that go in favor of Mr. Stanton, discussed below. On the other hand, there are no decisions in Florida state courts on the applicability of either statute to a transsexual, and the Florida courts have generally been less than sympathetic to LGBT plaintiffs. While Commission orders can be appealed to the courts, the courts have limited authority to change Commission orders. Click here for a good article on FCHR legal practice.

In my post of March 1, I briefly reviewed Smith v. City of Jacksonville (1992). In that case, a corrections officer was discharged for conduct unbecoming an officer following an incident in which she was found by a police officer in an isolated area at night changing her flat tire. The Florida Commission said that "the condition of transsexualism...is a handicap under Florida law," citing the Washington State case of Doe v. Boeing, which made a similar ruling under a similar statute. They also cited cases from other states holding that transsexuality is a medical condition, and noted that the federal Americans With Disabilities Act (ADA) specifically exempts transsexuality from coverage, although it would otherwise fall within the definition of "disability." Lastly, the Commission said that, even if transsexuality were not itself a "handicap," it nonetheless is perceived as a handicap when an employer says that the person cannot fulfill their job duties because of the disruption caused by the reactions of others to the perceived handicap. Such a "perceived handicap" falls within the protection of the Florida law.

In the Stanton case, of course, the City Commission has made a point of saying that it is the disruption caused by Mr. Stanton's transsexuality, rather than the transsexuality itself, that justifies their decision. Thus, they themselves have admitted that they perceive him as disabled.

The 2004 Commision opinion in Fishbaugh v. Brevard County Sheriff's Department, interestingly, contains language limiting the Smith opinion. Even more interestingly, the petitioner was represented by Attorney Karen Doering, who is now representing Mr. Stanton. The Fishbaugh case involved a post-operative transsexual who had told the Sheriff's department in advance of her hiring of her transsexuality. She was fired, and alleged that it was based on her transsexuality. She filed with the Commission, and it appears that, initially, the Administrative Law Judge (ALJ) hearing the case was of the opinion that the Commission had no jurisidiction to take the case because transsexuality is not covered by the Florida Civil Rights statute. He said that the Commission's opinion in the Smith case was inapplicable because it was decided based on the Florida Civil Rights Statute of 1977, which had subsequently been repealed and replaced by the Florida Civil Rights Statute of 1992. He also noted that the federal ADA had been enacted after 1977, and that the petitioner in Smith had medical disabilities in addition to transsexuality.

The Commission, however, rejected the ALJ's reasoning. Instead, it held that Fishbaugh's case was different from the situation in the Smith case, and that Fishbaugh was not disabled. It distinguished Fishbaugh's case because, it said, she was not perceived by her employer as disabled by reason of her transsexuality because the employer knew she was transsexual before it hired her, and she successfully completed all of the employer's pre-employment medical and psychological testing.

The Commission then addressed the question of whether Fishbaugh could maintain a case for sex discrimination. Although the ALJ had decided that she could not, citing federal opinions based on the federal Civil Rights Act (also known as "Title VII"), the Commission overruled and said that she could maintain a cause of action for sex discrimination. The Commission cited the U.S. Supreme Court case of Price Waterhouse v. Hopkins, which held that sex discrimination includes "a perception that a person failed to conform to stereotyped expectations of how a 'woman' should look and behave," as well as the U.S. Supreme Court case of Oncale v. Sundowner, which held that Title VII covers male-on-male sexual harassment, even though Congress did not specifically intend for such discrimination to be covered by Title VII. Interestingly, as discussed in detail in my post of March 1, the federal courts covering Florida have given signals that they might agree with such an interpretation.

The most recent FCHR opinion, that of Shepley v. Lazy Days RV Center (2006), also supports Mr. Stanton. In this case, the petitioner transitioned while working at the Lazy Days RV Center. Staff and customers harassed the petitioner, and after being intially supported, the employer fired Shepley on the grounds that her presence was disruptive. The ALJ who heard the case ignored the Commission's Smith and Fishbaugh decisions, instead citing two opinions of lower federal courts (from Utah and Louisiana, of all places) that held that transsexuals shouldn't be protected by civil rights laws. The Commission reversed, noting that the ALJ failed to take into account not only the Commission's prior opinions, but also a dozen other federal court opinions indicating that transsexuals are covered by civil rights laws.

Most significantly for the Stanton case, the Commission also stated that the employer's reason for dismissal, that of disruption, was a mere pretext for discrimination, because they could not present proof of actual loss of business or other significant burdens beyond that of providing a discrimination-free workplace. Thus, although there have been statements in the press by City Commission members that the firing was based on disruption, rather than Stanton's sex, it would be up to the Commission to demonstrate that there was actual interference with city business or other significant burdens, beyond the usual difficulties associated with maintaining a discrimination-free workplace. The disruption defense is going to prove a high hurdle for the Commission.

If the City Commission of Largo is mindful of the law of Florida, and heeds these strong indications of how the Florida Commission on Human Relations sees the law, then they must rethink their decision. Although Steve Stanton has publicly stated that he has not given any thought to a suit against the City of Largo, and had no desire to bring such a suit, I have seen many situations in my law practice where people regarded their employers highly and stated that they could never sue them. Then, when their employers shafted them in what they regarded as the most personal, mean-spirited, vile, low-down manner, the scales fell from their eyes and the courthouse seemed the only option.

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