A search of the Westlaw database reveals a few interesting developments in transgender discrimination law. In this post, I will discuss Creed v. Family Express Corp, 2007 WL 2265630 (N.D.Ind. 2007), a decision of the federal district court for the Northern District of Indiana, issued August 3, 2007. The decision, unfortunately, portends more confusion for employers, rather than less. This court is in the circuit that handed down the opinion in Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir.1984), which held that Title VII does not cover transsexuals. The continuing vitality of Ulane has been questioned recently by some courts, in light of Supreme Court decisions that have broadened the scope of Title VII sex discrimination.
Other courts, however, while concluding that gender expression discrimination is prohibited under Title VII, have suggested that Ulane may still be good law. Still others have held that transgender plaintiffs may never be protected. In the Creed opinion, the Court holds to a tricky middle path, concluding that specific allegations of discrimination based on transgender status are not covered by Title VII, but allegations of gender expression discrimination are covered.
The Creed opinion discusses a lawsuit filed by Amber Creed against her employer for job discrimination. Ms. Creed began working as a sales associate in 2005. She was hired as a male, and wore the polo shirt and slack provided to all employees. Over the year, she sometimes wore clear nail polish and black mascara, trimmed her eyebrows, and, in the fall, wore her hair in a more feminine style. The company's HR Director met with her, and told her she could no longer present herself in a feminine manner at work. Ms. Creed told them that she was transgender and was going through the process of gender transition. When she refused to present herself in a more masculine way at work, she was terminated. Ms. Creed's letter of termination stated she was fired because she didn't comply with its dress and grooming code.
Ms. Creed's complaint alleged she was discharged because she didn't conform to gender stereotypes, a cause of action first validated in Price-Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989). Judge Miller, however, cited Ulane in denying the plaintiff's claim. He rejected the theory, validated in other federal circuits, that the Supreme Court's ruling in Price Waterhouse “eviscerated” Ulane. The judge said that the Price Waterhouse Court focused on the situation in which initiative, effort, and aggressiveness were rewarded with partnership for men, but the company then punished women who exhibited these “macho” traits. It was the disparate treatment of men and women by sex stereotype that violated Title VII, according to this court.
By contrast, Judge Miller points to the fact that two of the counts of the complaint alleged only that she was discriminated against “on the basis of her transgender status.” He dismissed these counts on the grounds that they failed to explicitly allege that her discharge was triggered by stereotypical perceptions of a particular gender, a requirement under Price-Waterhouse according to Judge Miller.
However, two other counts did explicitly allege this, stating that she was fired because her employer perceived her “to be a man who did not conform with gender stereotypes associated with men in our society, or because it perceived Plaintiff to be a woman who did not conform with gender stereotypes associated with women in our society .” Judge Miller acknowledged that the complaint implies she was terminated as a result of these stereotypical perceptions, rather than simply her gender dysphoria. Therefore, he refused to dismiss those counts, allowing the lawsuit to move forward.
In so doing, Judge Miller seems to hold that, if the plaintiff bases her allegations on her gender identity, she is not protected. However, if she bases her allegations on her gender expression, then she is protected. Am I the only one confused here?
In the near future, I will post updates on the court opinions in Etsitty, Schroer and Hispanic AIDS Forum.
