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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, February 19, 2008

Brooklyn Court Rules Trans Customer Protected Against Discrimination by Transit Worker

Professor Art Leonard reports in his blog on an opinion regarding a transgender customer’s harassment suit against the New York Transit Authority. This opinion should be well-heeded by any employer that deals with the public -- rude treatment of transgender customers may result in a lawsuit. Employers can benefit from reviewing the facts of this complaint to determine how situations can rapidly get out of control. The right sort of training for employees can avoid this type of situation.

While the legal technicalities of this case are uninteresting except to state agencies granted immunity from local municipal laws, the immunity question does raise an issue of interest to those who drafted SONDA, the New York State anti-discrimination law that prohibited discrimination based on sexual orientation. Had that law, passed in 2002, included "gender identity or expression," the argument made here would never have arisen.

The plaintiff, Tracy Bumpus, alleges that she was having trouble using her metrocard in July 2006, and asked a transit worker, Smith, for assistance. She further alleged that the transit employee "using a loud voice, spoke a steady stream of discriminatory, transgender-phobic epithets in a pointed manner towards the plaintiff, for a period of approximately ten minutes and in the presence of other commuters; Other passengers who had witnessed Smith speaking to Bumpus followed the plaintiff off the subway car she had taken and proceeded to verbally harass and threaten her. Rather than slinking off in humiliation, Bumpus immediately contacted the Transit Authority and complained about this treatment. Unfortunately, as is all too often the case, the Transit Authority did not take effective action to stop the harassment, for Bumpus alleged that she ran into the same transit worker a few days later at the station, who pointed her out to other transit employees and they all laughed at Bumpus.

The TA initiated disciplinary proceedings against Smith through the union grievance procedure, but Bumpus never attended the scheduled disciplinary hearings. (As is often the case, notices from agencies like the TA conveniently never arrive.) The TA dropped the charges. Smith also filed a motion to dismiss the lawsuit, arguing that TA employees are immune to suit under the city’s Human Rights Law. She pointed to the New York Public Authorities Law § 1266(8), which states that:

"... no municipality or political subdivision, including but not limited to a county, city, village, town or school or other district shall have jurisdiction over any facilities of the authority and its subsidiaries, and New York City Transit Authority and its subsidiaries, or of their activities or operations. The local laws, resolutions, ordinances, rules and regulation of a municipality or political subdivision, heretofore or hereafter adopted, conflicting with this title or any rule or regulation of the authority or its subsidiaries, or New York City Transit Authority or its subsidiaries, shall not be applicable to the activities or operation of the Authority and its subsidiary, and the New York City Transit Authority and its subsidiaries except such facilities that are devoted to purposes other than transportation or transit purposes."

Smith argued that this section meant that the local New York City Human Rights law was not applicable to the Transit Authority or its employees. She relied on a 2007 ruling by Justice Lawrence Knipel, specifically ruling that the law meant that the TA could not be sued under the city law. The judge in this case, however, disagreed with the prior ruling, interpreting the law to mean only that local laws may not conflict with the normal operations of the TA. The judge eloquently described the significance of the human rights law:

"By riding the subway, a transgender person doesn’t become less of a person and lose the protection of the Human Rights Law. Clearly, the discriminatory behavior of the transit worker is not within the function of the NYCTA."

Since the application of the law in this case presented no conflict with the normal operations of the TA, the court refused to toss out the complaint.

Read the rest of the Leonard Link post here: http://newyorklawschool.typepad.com/leonardlink/2008/02/brooklyn-court.html

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