Welcome! To read each post in full, click on the post title.



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.

Wednesday, December 3, 2014

The Court Gets It Wrong In Eure v. The Sage Corp., WD Tex,

This is a problematic trans employment discrimination case from the Western District of Texas.  The Court said the following:

"All of the testimony that Eure has presented related to Campanian's animus couches Campanian's alleged discrimination in terms specifically related to Eure's status as a transgender person, not in terms related to her conformance with gender stereotypes."

This is an interesting proposition. If derogatory references to a transgender person are not gender stereotyping, what magic words need to be said to constitute it?
Also, the Court said that statements by an agent of the employer, making derogatory comments, was hearsay when submitted in the Plaintiff's affidavit, because the Plaintiff did not observe the conversation. However, this case was in the summary judgment stage, in which the defendant seeks to have the case thrown out of course for insufficient evidence, foregoing any trial because there is no genuine dispute of material fact. The employee does not need to prove the case at this point, but simply needs to show enough of a dispute of fact, so that a reasonable jury could rule in favor of the employee, deciding all disputes in favor of the employee and giving them the benefit of any favorable inferences. The employee does not have to submit testimony in the stricter form admissible at trial, so long as there is a witness in existence who could properly recount the testimony in non-hearsay form at trial. Since another witness, who was presumably available to testify at trial, heard the statements of the employer's agents, that witness's statements would have been admissible at trial over a hearsay objection.  That is because the statements of an employer's agents are admissible  under Federal Rule of Evidence 801(d)(2)(D). Such statements are also admissible because they're not asserted to prove the truth of the statement's contents, but are offered simply for the fact that the statement was made, as a verbal act, constituting discriminatory animus under 801(c)(2).

Here is what was said, according to the Court's opinion:

Brandon alleges that, early that day, Campanian saw Eure with a student and asked Brandon, "What is that and who hired that?" (Id. ¶ 3.) Brandon alleges that Campanian then said, "Please don't tell me that is a Sage instructor" and informed Brandon that Sage did not hire "cross genders." (Id.) After Brandon told Campanian that she hired Eure because Eure was qualified and filled the school's need for a bilingual instructor, Brandon alleges that Campanian told her, "We will deal with you seriously for hiring that." (Id.) Brandon further alleges that Campanian indicated she would discuss the matter with Sage's President, Gregg Aversa ("Aversa") and discuss appropriate punishment for Brandon. (Id.)
There was likely an adequate basis to admit this information at the summary judgment stage.  Unfortunately, plaintiff's counsel did not anticipate these common objections. The employee's brief, which you can view here, was very brief, and unusually informal. I would strongly advise any lawyer who doesn't have familiarity with the case law on transgender employment discrimination to reach out to many of the fine legal organizations that are more than willing to help lawyers representing trans employees, such as Lambda Legal, Transgender Law Center, Transgender Legal Defense and Education Fund and others. You could even call me, and I'd be glad to help out.

The Court also cited to the following statement in Schroer v. Billington:

"While I agreed with the Sixth Circuit that transsexuality is not a bar to a sex stereotyping claim, I took the position that `such a claim must actually arise from the employee's appearance or conduct and the employer's stereotypical perceptions.' In other words, `a Price Waterhouse claim could not be supported by facts showing that [an adverse employment action] resulted solely from [the plaintiff's] disclosure of her gender dysphoria'"
Case closed - this statement says that sex stereotyping and comments based on failure to conform to sex stereotypes are absolutely necessary to constitute sex discrimination.  However, had the Court read the next sentence, it would have seen this:
"That was before the development of the factual record that is now before me. "
The Schroer Court concluded a few paragraphs later by saying:
"Ultimately, I do not think that it matters for purposes of Title VII liability whether the Library withdrew its offer of employment because it perceived Schroer to be an insufficiently masculine man, an insufficiently feminine woman, or an inherently gender-nonconforming transsexual. One or more of Preece's comments could be parsed in each of these three ways. While I would therefore conclude that Schroer is entitled to judgment based on a Price Waterhouse-type claim for sex stereotyping, I also conclude that she is entitled to judgment based on the language of the statute itself."
The Schroer case does not at all stand for the proposition for which it is cited by the Eure Court. And why was there no citation to Lopez v. River Oaks Imaging, a Texas case that Lambda Legal won a few years ago? ("There is nothing in existing case law setting a point at which a man becomes too effeminate, or a woman becomes too masculine, to warrant protection under Title VII and Price Waterhouse. To hold otherwise would be to permit employers and "courts [to] superimpose classifications such as 'transsexual' on a plaintiff, and then legitimize discrimination based on the plaintiff's gender non-conformity by formalizing the non-conformity into an ostensibly unprotected classification.")

There are a lot of other things wrong here, but that's all I have time for now. There is also a companion case (Brandon v. Sage), brought by a co-worker who was fired after hiring Eure, and who opposed the discrimination. That case also leaves much to be desired.

Here's the link: http://scholar.google.com/scholar_case?case=15399298128594501717

No comments: