Susan Stanton is one of five finalists for the job of Iowa City manager. Iowa City has had a gender identity non-discrimination law since 1995, and produced an excellent training video for government workers in the late nineties. The state of Iowa passed a gender identity non-discrimination law last year. The story is here:
http://www.kwwl.com/News/index.php?ID=21729
Showing posts with label Stanton Case. Show all posts
Showing posts with label Stanton Case. Show all posts
Saturday, February 16, 2008
Wednesday, April 18, 2007
Steve Stanton on Daily Show Video
Autumn Sandeen's blog has a link to a segment with Steve Stanton on The Daily Show. It included interviews with Stanton, Largo residents, and a disapproving former mayor, as well as snippets from the City Commission hearings.
The Daily Show is a very successful Comedy Channel production that discusses current events and politics from a left-leaning point of view and with a heavy emphasis on the comic aspects of life. I showed the segment to my partner, whom I unfortunately forgot to inform about The Daily Show. She had no idea that it was a comedy show, and was appalled when they made absurd suggestions, such as the idea that scientific studies had shown that the portion of the brain responsible for city management is located in the penis, and interviews with Largo residents who said dumb things. At the end, they took a giant scissors ... well you'll see when you view the segment. My partner couldn't understand why I was laughing.
I thought the segment was hilarious, demonstrated that Stanton was fired because of his gender identity, showed that some Largo residents, including the former mayor, are bigoted toward transgender people, and generated a great deal of sympathy for Stanton's plight. Yes, it was slightly disrespectful, but the spirit in which it was written appealed to me greatly.
The Daily Show is a very successful Comedy Channel production that discusses current events and politics from a left-leaning point of view and with a heavy emphasis on the comic aspects of life. I showed the segment to my partner, whom I unfortunately forgot to inform about The Daily Show. She had no idea that it was a comedy show, and was appalled when they made absurd suggestions, such as the idea that scientific studies had shown that the portion of the brain responsible for city management is located in the penis, and interviews with Largo residents who said dumb things. At the end, they took a giant scissors ... well you'll see when you view the segment. My partner couldn't understand why I was laughing.
I thought the segment was hilarious, demonstrated that Stanton was fired because of his gender identity, showed that some Largo residents, including the former mayor, are bigoted toward transgender people, and generated a great deal of sympathy for Stanton's plight. Yes, it was slightly disrespectful, but the spirit in which it was written appealed to me greatly.
Friday, April 13, 2007
Stanton announces that he will not sue
On his Larry King Live interview tonight, Steve Stanton announced that he will not sue the City of Largo. He had previously indicated that he would find such a lawsuit "like suing my mother," but there was widespread speculation that he could succeed in such a lawsuit. Appearing with his attorney, Karen Doering, of the National Center for Lesbian Rights, Stanton spoke very candidly and openly about his experience, describing his early knowledge of the condition, his marriage and a planned separation, his love for his son and his son's love for him, the difficulty of the personal reactions from some of the City Commissioners, and the support from unexpected sources. He indicated that he expected to transition in the next 30-60 days, and would look in the future to continue work as a city manager.
Ms. Doering provided some useful comments about her organization's experience with and support for transsexuals transitioning in the workplace. She noted that many people have transitioned successfully in the workplace, and that Steve's communication plan would likely have succeeded in allowing him to transition without losing effectiveness as city manager, except for the fact that his plans were disclosed early by a newspaper.
I thought the interview provided a very useful, if brief, education for many people who have never seen or heard a transsexual, demonstrating that this is an ordinary human being with the usual feelings and concerns, although extraordinary circumstances.
Here's the transcript.
(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com See the "Archives" menu on the right for older posts.)
Ms. Doering provided some useful comments about her organization's experience with and support for transsexuals transitioning in the workplace. She noted that many people have transitioned successfully in the workplace, and that Steve's communication plan would likely have succeeded in allowing him to transition without losing effectiveness as city manager, except for the fact that his plans were disclosed early by a newspaper.
I thought the interview provided a very useful, if brief, education for many people who have never seen or heard a transsexual, demonstrating that this is an ordinary human being with the usual feelings and concerns, although extraordinary circumstances.
Here's the transcript.
(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com See the "Archives" menu on the right for older posts.)
Thursday, April 12, 2007
Stanton appearance on Larry King shifted to Friday
Due to a schedule change at "Larry King Live", NCLR client Steve Stanton will appear on Friday's program.
Wednesday, April 11, 2007
Stanton On Larry King Live Thursday
The St. Petersburg Times today revealed that Steve Stanton is slated to appear with his attorney on Larry King Live. Stanton will announce whether he'll sue his former employer on Larry King, said his lawyer, Karen Doering, senior counsel for the National Center for Lesbian Rights.
Simon Aronoff, deputy director National Center for Transgender Equality, said Stanton will join his organization in Washington, D.C., next month to lobby Congress for the transgender-inclusive Employment Non-Discrimination Act.
The article discusses Stanton's legal chances, quoting yours truly on the pro-Stanton side:
More at the St. Pete Times, which also quotes the attorney of a trans Largo resident who successfully sued for gender identity discrimination, as well as the ever-quotable Professor Paul Secunda of Workplace Prof Blog, who gently disputed my rose-colored glasses view. I forgive him this trespass (but she who laughs last laughs best).
(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com See the "Archives" menu on the right for older posts.)
Simon Aronoff, deputy director National Center for Transgender Equality, said Stanton will join his organization in Washington, D.C., next month to lobby Congress for the transgender-inclusive Employment Non-Discrimination Act.
The article discusses Stanton's legal chances, quoting yours truly on the pro-Stanton side:
"'He has an excellent case, but not necessarily an easy one,' said Jillian Weiss, assistant professor of law and society at Ramapo College of New Jersey. She pointed to three cases handled by the Florida Commission on Human Relations that could help Stanton."
More at the St. Pete Times, which also quotes the attorney of a trans Largo resident who successfully sued for gender identity discrimination, as well as the ever-quotable Professor Paul Secunda of Workplace Prof Blog, who gently disputed my rose-colored glasses view. I forgive him this trespass (but she who laughs last laughs best).
(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com See the "Archives" menu on the right for older posts.)
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.
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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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
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.
(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com See the "Archives" menu on the right for older posts.)
Saturday, March 24, 2007
Steve Stanton Terminated
The City Commission of Largo has voted, again 5-2, to terminate Steve Stanton as city manager.
Here's the St. Petersburg Times blow by blow: http://blogs.tampabay.com/breakingnews/2007/03/largo_police_cl.html
Best quote: "After six hours of speakers, commissioners take less than five minutes to reaffirm a decision to fire Steve Stanton."
Here's Tampa Bay Online's story: http://www.tbo.com/news/metro/MGBULLVJNZE.html
The National Center for Lesbian Rights, Equality Florida, the National Center for Transgender Equality, the Human Rights Campaign, the American Civil Liberties Union, Lambda Legal, and the National Gay & Lesbian Task Force issued a statement, which you can find here:
http://nclrights.org/releases/st-lgbt_stanton_florida032307.htm
Here's a colorful post by someone who was in Largo: "Was it the dude holding up a poster board scribbled with the word faggot or the rusty red pick up truck with a full-sized Confederate flag waving from its bed rolling down the streets of Largo that made me a little nervous?
http://www.blurbex.com/2007/03/this_cant_be_no.html
(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com See the "Archives" menu on the right for older posts.)
Here's the St. Petersburg Times blow by blow: http://blogs.tampabay.com/breakingnews/2007/03/largo_police_cl.html
Best quote: "After six hours of speakers, commissioners take less than five minutes to reaffirm a decision to fire Steve Stanton."
Here's Tampa Bay Online's story: http://www.tbo.com/news/metro/MGBULLVJNZE.html
The National Center for Lesbian Rights, Equality Florida, the National Center for Transgender Equality, the Human Rights Campaign, the American Civil Liberties Union, Lambda Legal, and the National Gay & Lesbian Task Force issued a statement, which you can find here:
http://nclrights.org/releases/st-lgbt_stanton_florida032307.htm
Here's a colorful post by someone who was in Largo: "Was it the dude holding up a poster board scribbled with the word faggot or the rusty red pick up truck with a full-sized Confederate flag waving from its bed rolling down the streets of Largo that made me a little nervous?
http://www.blurbex.com/2007/03/this_cant_be_no.html
(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com See the "Archives" menu on the right for older posts.)
Friday, March 23, 2007
Stanton Hearing: live coverage
[Update: The videos of the second Commission hearing can be found here. ]
I found the live stream -- http://media.myfoxtampabay.com/live/primarystream.html
Tampabay.com says that it will have live coverage of the hearing, which begins this evening at 6pm Eastern Time.
Update: turns out it's not streaming video from the hearing, but updated coverage periodically. Still, better than nothing. There are two other sites posting updated coverage:
http://tbo.com is having a live video stream
http://www.baynews9.com has updating video coverage segments.
Coverage of the prior meeting can be found here.
(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com See the "Archives" menu on the right for older posts.)
I found the live stream -- http://media.myfoxtampabay.com/live/primarystream.html
Tampabay.com says that it will have live coverage of the hearing, which begins this evening at 6pm Eastern Time.
Update: turns out it's not streaming video from the hearing, but updated coverage periodically. Still, better than nothing. There are two other sites posting updated coverage:
http://tbo.com is having a live video stream
http://www.baynews9.com has updating video coverage segments.
Coverage of the prior meeting can be found here.
(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com See the "Archives" menu on the right for older posts.)
Tuesday, March 20, 2007
Stanton's Reply to City of Largo Resolution No. 1924
Here's a link to "Reply to City of Largo Resolution No. 1924," submitted by Karen M. Doering, attorney for Steven Stanton, Largo City Manager. The Reply makes four points:
I. Terminating An Experienced, Effective and Highly Skilled City Manager Does Not Serve the Best Interests of Largo Residents.
II. The City Should Base Employment Decisions On Objective Performance Criteria And Comply With Its Own Non-Discrimination Policies
III. Mr. Stanton Followed Professional Guidelines For Disclosing His Transgender Status To His Employer
IV. Transitioning Permits Transgender People To Live Healthy, Productive Lives
(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com See the "Archives" menu on the right for older posts.)
I. Terminating An Experienced, Effective and Highly Skilled City Manager Does Not Serve the Best Interests of Largo Residents.
II. The City Should Base Employment Decisions On Objective Performance Criteria And Comply With Its Own Non-Discrimination Policies
III. Mr. Stanton Followed Professional Guidelines For Disclosing His Transgender Status To His Employer
IV. Transitioning Permits Transgender People To Live Healthy, Productive Lives
(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com See the "Archives" menu on the right for older posts.)
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.
(If you are viewing this blog on LexisNexis, note that hyperlinks are available in the original at http://jweissdiary.blogspot.com. See the "Archives" menu on the right for older posts.)
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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Friday, March 16, 2007
Stanton's Communcation Strategy: Is the criticism justified?
This morning's St. Petersburg Times reviews criticisms of Steve Stanton's communications plan. Some City Commissioners and members of the public criticized Stanton's decision to form a "transition group" to help formulate his plan, thus leaving others out of the loop, including City Commissioners, staffers and the citizens of Largo.
The article's title points up how the failure of an organization to adopt a gender transition policy can lead to termination of an otherwise outstanding employee: "With No Transition Plan, Stanton Wrote One." As the byline notes, "Many companies have policies to protect transgender employees, but the city of Largo didn't."
The Times reporter contacted me for this story, and showed me Stanton's communications plan. I reviewed it carefully and had several phone calls with her about transition policies generally, and the merits of this plan in particular. As she notes in the article, I found it to be an excellent communications plan, and told her that it's considered "best practice" to form a committee to interface about the plans to ensure that the transition is a success for all. Of course, I also said many other things, but there are only so many points one can include in a newspaper article. So here's some of the other things I told her that are relevant to the issue of whether this transition was handled appropriately by Stanton.
There are three parts to any gender transition plan:
In others ways, however, it is very different. In regards to communication strategy, I advise my clients that "layered communications" in a "step-by-step process" are key concepts in creating such plans. If, for example, one were to plan on advising everyone at the same time (e.g., sending out a broadcast email) as the first step in advising the organization of an employee's gender transition, one is likely to cause a tremendous amount of disruption in productivity and morale. Rather, it is important first to keep the sensitive information to a small group to insure confidentiality and proper handling. Then, integrating the communication strategy with the organization's transgender policy, and the training plan, information is gradually rolled out to senior management, line management, co-workers (at first only those in frequent workplace contact) and the organization's public (clients, customers, vendors, citizens - depending on the environment). The "Stanton plan" that I was shown contained all these elements, leading me to call it "an excellent communications plan." I have a few quibbles with the plan, of course. Number one is the insertion of more safeguards for confidentiality, because I have seen a number of cases where transgender employees thought certain people were "totally safe" to tell early on, and it turned out to be a mistake. Obviously, someone in the Largo city government spilled the beans, making a shambles of the carefully laid plans.
There are a lot of considerations here, and you can learn more at my consulting webpage at http://phobos.ramapo.edu/~jweiss/consult.htm It is important to understand that the information to be rolled out should consist only of the organization's transgender policy and its application to the specifics of the employee transition in question. The training should be "value-free" as much as possible. In other words, it should not be an attempt to convince people that gender transition and transgender identity are good. It should only advise what the policy is, what its requirements are, and what it means in the context of a specific gender transition.
I have devised a generic transition plan which I tailor for use with my clients, which are usually Fortune 500 companies and large city agencies. I don't recommend a plan of this complexity for small organizations. You can find it at http://phobos.ramapo.edu/~jweiss/policy.pdf I've discussed the issues involved in these plans in many blog posts, which you can find by clicking on the label at the bottom of this post, entitled "Management Response." There are a number of other transition plans on the web, which you can find here and here.
The Times asked me to hold off publishing the plan I was shown, so I'll wait for the go-ahead on that. They did publish excerpts from the plan, but there are a few remaining interesting tidbits. Next week I'll put in my two cents on the details of the transition plan.
The article's title points up how the failure of an organization to adopt a gender transition policy can lead to termination of an otherwise outstanding employee: "With No Transition Plan, Stanton Wrote One." As the byline notes, "Many companies have policies to protect transgender employees, but the city of Largo didn't."
The Times reporter contacted me for this story, and showed me Stanton's communications plan. I reviewed it carefully and had several phone calls with her about transition policies generally, and the merits of this plan in particular. As she notes in the article, I found it to be an excellent communications plan, and told her that it's considered "best practice" to form a committee to interface about the plans to ensure that the transition is a success for all. Of course, I also said many other things, but there are only so many points one can include in a newspaper article. So here's some of the other things I told her that are relevant to the issue of whether this transition was handled appropriately by Stanton.
There are three parts to any gender transition plan:
- organizational policy - how does this fit with the organization's existing policies, and how should those be amended - EEO, harassment, dress code, records and identification, security, union, facilities usage (i.e. bathrooms and locker rooms) etc.
- training - how should senior managers, HR and co-workers be informed about the organization's transgender policy, and what type of training do they need to understand what the organizational policy requires?
- communications strategy: how to tell management, co-workers and the public (clients, customers, vendors, citizens - depending on the environment) It is critical that this part be very carefully thought out.
In others ways, however, it is very different. In regards to communication strategy, I advise my clients that "layered communications" in a "step-by-step process" are key concepts in creating such plans. If, for example, one were to plan on advising everyone at the same time (e.g., sending out a broadcast email) as the first step in advising the organization of an employee's gender transition, one is likely to cause a tremendous amount of disruption in productivity and morale. Rather, it is important first to keep the sensitive information to a small group to insure confidentiality and proper handling. Then, integrating the communication strategy with the organization's transgender policy, and the training plan, information is gradually rolled out to senior management, line management, co-workers (at first only those in frequent workplace contact) and the organization's public (clients, customers, vendors, citizens - depending on the environment). The "Stanton plan" that I was shown contained all these elements, leading me to call it "an excellent communications plan." I have a few quibbles with the plan, of course. Number one is the insertion of more safeguards for confidentiality, because I have seen a number of cases where transgender employees thought certain people were "totally safe" to tell early on, and it turned out to be a mistake. Obviously, someone in the Largo city government spilled the beans, making a shambles of the carefully laid plans.
There are a lot of considerations here, and you can learn more at my consulting webpage at http://phobos.ramapo.edu/~jweiss/consult.htm It is important to understand that the information to be rolled out should consist only of the organization's transgender policy and its application to the specifics of the employee transition in question. The training should be "value-free" as much as possible. In other words, it should not be an attempt to convince people that gender transition and transgender identity are good. It should only advise what the policy is, what its requirements are, and what it means in the context of a specific gender transition.
I have devised a generic transition plan which I tailor for use with my clients, which are usually Fortune 500 companies and large city agencies. I don't recommend a plan of this complexity for small organizations. You can find it at http://phobos.ramapo.edu/~jweiss/policy.pdf I've discussed the issues involved in these plans in many blog posts, which you can find by clicking on the label at the bottom of this post, entitled "Management Response." There are a number of other transition plans on the web, which you can find here and here.
The Times asked me to hold off publishing the plan I was shown, so I'll wait for the go-ahead on that. They did publish excerpts from the plan, but there are a few remaining interesting tidbits. Next week I'll put in my two cents on the details of the transition plan.
Thursday, March 8, 2007
Stanton plans to appeal his firing
Northpinellas: Stanton plans to appeal his firing - Excerpt:
This signals an understanding that the appeal is not primarily legal in nature. The City Commission is not a court of law, nor are they likely to understand arguments appealing to legal authority.
The issue here is educating a City Commission and a public that has no experience with gender transition. The key is giving them an understanding of gender transition. They need to hear from experts in the field that Stanton was not deceptive in failing to disclose earlier, has a well-known medical condition (gender dysphoria), the condition requires him to take certain steps in transitioning, and it will not interfere with his ability to do the job of city manager.
LARGO - City Manager Steve Stanton says he plans to submit an appeal to his firing. He will request a public hearing to make his case around noon Thursday, he said.
Stanton, 48, who has been Largo's city manager for 14 years, said he plans to request a hearing about 30 days from now. He said he will need the time to put on a thorough presentation, which will take up to three hours and will feature national experts in medicine, psychology and the workplace transition process for transsexuals.
"I think this will certainly give the commission a good basis of information to make an informed decision," Stanton said. "I'm realistic enough to know its going to require an extraordinary step to stop the train going down track with a certain degree of speed and to confront some of the folks back in the commission chambers who will be talking about what Jesus what do."
If an appeal during a public hearing fails, Stanton hasn't said whether he would sue the city, but he doesn't relish the thought. "I do not feel this is a legal argument," he said. "It's not a matter of hiring an attorney to threaten to sue the city. That is not the argument I want to make."
This signals an understanding that the appeal is not primarily legal in nature. The City Commission is not a court of law, nor are they likely to understand arguments appealing to legal authority.
The issue here is educating a City Commission and a public that has no experience with gender transition. The key is giving them an understanding of gender transition. They need to hear from experts in the field that Stanton was not deceptive in failing to disclose earlier, has a well-known medical condition (gender dysphoria), the condition requires him to take certain steps in transitioning, and it will not interfere with his ability to do the job of city manager.
Sunday, March 4, 2007
Media Frenzy Over Stanton Firing
I am surprised at the amount of interest shown in the story of the firing of Steve Stanton, City Manager of Largo, Florida. (I gave my analysis of the law in my previous post.)
The discriminatory animus shown certainly deserves scrutiny, but there have been other stories equally deserving of interest from this point of view. For example, just last month, there was the story about John Nemecek (now Julie), a professor who was fired for much the same reason as Steve Stanton. That garnered a lot of media interest, more than I've seen in a while. Instead of a few articles filed under the category of "Bizarre News" in scattered papers around the world, as there usually is when these stories break, a Michigan daily newspaper, the Jackson Citizen Patriot, did a series of thoughtful articles, which went to the major US papers. The media interest in the Stanton story, however, is even larger. A Google search done this morning shows four times the number of English web pages ("John Nemecek" AND "Spring Arbor" = 9,000 "Steve Stanton AND Largo = 38,000). Since the Nemecek story has had a month to germinate, one would think it would be ahead of the Stanton story in terms of the number of web pages.
Google News this morning showed over 200 news sources carrying the Stanton story. It was one of Yahoo's most popular news stories on March 1. Google Blog Search shows over 300 blog posts on the issue (There are now 80 listed for the Nemecek story)
The Miami Herald published this story yesterday:
Largo sex change case draws media attention
The discriminatory animus shown certainly deserves scrutiny, but there have been other stories equally deserving of interest from this point of view. For example, just last month, there was the story about John Nemecek (now Julie), a professor who was fired for much the same reason as Steve Stanton. That garnered a lot of media interest, more than I've seen in a while. Instead of a few articles filed under the category of "Bizarre News" in scattered papers around the world, as there usually is when these stories break, a Michigan daily newspaper, the Jackson Citizen Patriot, did a series of thoughtful articles, which went to the major US papers. The media interest in the Stanton story, however, is even larger. A Google search done this morning shows four times the number of English web pages ("John Nemecek" AND "Spring Arbor" = 9,000 "Steve Stanton AND Largo = 38,000). Since the Nemecek story has had a month to germinate, one would think it would be ahead of the Stanton story in terms of the number of web pages.
Google News this morning showed over 200 news sources carrying the Stanton story. It was one of Yahoo's most popular news stories on March 1. Google Blog Search shows over 300 blog posts on the issue (There are now 80 listed for the Nemecek story)
The Miami Herald published this story yesterday:
Largo sex change case draws media attention
Transgender activists say there's only one thing unusual about the case of Largo, Fla., City Manager Steve Stanton: Not that he's being fired for planning to become a woman, but the deluge of publicity he's gotten as a result.
Here's Newsweek's story. And People magazine. Wikipedia now has a page for "Steve Stanton" detailing his life history. It's a fairly interesting read, though one must sometimes take Wikipedia with a grain of salt.
And here's a graph of this blog's page views from SiteMeter:
Why is this story so big?
"Other people have been fired, but not in such a public way and not at the behest of a screaming mob,'' said Matt Foreman, executive director of the National Gay and Lesbian Task Force. "Yes, people have lost their jobs because they've transitioned. But this is the most public case involving a hearing.'' This quote is in the Miami Herald story. Because the interest in the story began before the firing, I think attributing all of it to being publicly fired at the behest of irate citizens is missing part of the force of this story. I think part of the interest is that this involves an upstanding public official who breaks the prejudices that people have about transsexuals.
I have encountered three major prejudices about transsexuals. 1. They are mentally ill people with shattered lives. 2. They are promiscuous deviants obsessed with sex. 3. They have anti-social tendencies, including unethical or criminal conduct. Here, to the contrary, we have a public official responsible for running a large US city. He has explained his situation, when confronted by the St Petersburg Times, with dignity and aplomb. He is married with children. He has done an excellent job running a large US city for the past 14 years, and not been suspected of criminal or ethical wrongdoing. This is not a person living a shattered life, nor a sexual predator, nor a criminal. While the public may be slightly interested in the story of radiologist, ferry worker, cook, manager or professor (all of whom recently had stories in the news) fired because of transgender identity, I think the idea that an upstanding public official can also be a transsexual is non sequitur for most of the public. I think the idea that an upstanding person of any sort can also be a transsexual is non sequitur for most people.
Most people have never heard of a successful transsexual, though there are certainly plenty of recent descriptions if you look, including biographic books such as "She's Not There," from college professor Jennifer Finney Boylan, "Branded T," by psychotherapist Rosalyne Blumenstein, Jamison Green's "Becoming a Visible Man" Mark Rees "Dear Sir or Madam" and websites such as Lynn Conway's "Transsexual Women's Successes" and "Successful TransMen." Amy Bloom's "Normal," while not written by a transsexual, also shows successful trans lives.
In addition to this being a story of unusual publicity, I think it is also an unusual chance to educate journalists and the public about diversity.
Thursday, March 1, 2007
The Law Covering Steve (Susan) Stanton, City Manager Dismissed In Largo, Florida
The story broke last Thursday: "Largo official plans sex change."
The story involves Steve (Susan) Stanton, city manager of Largo, Florida. Stanton had planned to announce his* decision in June so his son could be out of town. But that changed after the St. Petersburg Times heard of possible changes in Stanton's life and approached him.
This type of behavior by the media, often referred to as "outing," is questionable, and may be a violation of the right of privacy of a public official. See Celebrity Privacy Rights And Free Speech: Recalibrating Tort Remedies For "Outed" Celebrities, 32 Harvard Civil Rights-Civil Liberties Law Review 449 (1997); "Outing" And Freedom Of The Press: Sexual Orientation's Challenge To The Supreme Court's Categorical Jurisprudence, 77 Cornell Law Review 103 (1991).
Yesterday, the City Commission that employed Stanton voted to fire him based on these revelations. This reaction is not surprising in light of the Largo City Commission’s votes against proposed ordinances protecting city employees from discrimination based on sexual orientation and gender identity in 2002 and 2003, as well as 2006. It is also ironic, in light of the argument made by some commissioners that Largo didn’t need such an ordinance. It is particularly unfortunate in its connection to the recent murder by a Largo resident of a transgender person, Reshae McCauley.
The question I’m interested in addressing is whether Stanton’s firing subjects Largo to liability for employment discrimination. I think it does, though the analysis is not a simple one.
The St. Petersburg Times published an article discussing the ins and outs of the law on this issue as well as a newspaper can discuss it, which is, of course, not much at all.
As most of you know, there is no federal law explicitly prohibiting employment discrimination based on gender identity or expression, and there's none in Florida either. Largo itself rejected three times a proposed ordinance on the subject. This would seem to indicate that Stanton is out of luck. But the law is tricky, so make sure you're holding you're lucky rabbit's foot when you try to make predictions.
Some federal courts have recently held that “sex discrimination,” which is explicitly prohibited by federal law, includes discrimination based on transgender identity. These courts include the Federal Sixth Circuit Court of Appeals (covering Ohio, Michigan, Kentucky and Tennessee) as well as seven federal district courts in Arizona, District of Columbia, New York, Oregon, Pennsylvania, Tennessee, and Washington.
The bad news is that none of these are in Florida, and so their rulings don’t bind the federal courts in Florida. In fact, the Federal District Court for the Middle District of Florida, which covers Largo, indicated that discrimination based on transsexuality didn’t seem to be covered by Title VII, the federal law prohibiting employment discrimination. Cox v. Denny's, Inc., 1999 WL 1317785 (M.D.Fla.,1999). However, there are favorable indications. The court did permit the transsexual plaintiff to assert a claim of sexual harassment, though it found the harassment not sufficiently severe or pervasive to rule in his favor. Furthermore, it based its statement about discrimination based on transsexuality on the fact that, in 1999, the courts were then unanimous in finding discrimination based on transsexuality not actionable under Title VII. Since many courts have since decided that discrimination based on transsexuality is actionable under Title VII, perhaps the Middle District courts will change their minds.
A positive signal in this regard is the recent federal case of Mowery v. Escambia County Utilities Authority, 2006 WL 327965 (N.D.Fla. 2006). The court said that discrimination based on “perceived failure to conform to a masculine gender role” could be actionable. It favorably quoted from several cases suggesting that transgender discrimination is sex discrimination. It mentioned Rosa v. Park West Bank, 214 F.3d 213, 215-16 (1st Cir.2000), which found that a bank was liable for sex discrimination if it refused to serve a customer whose dress "did not accord with his male gender", and Simonton v. Runyon, 232 F.3d 33, 38 (2d Cir.2000), which held that disparate treatment based on nonconformity with sexual stereotypes is sex discrimination", and Centola v. Potter, 183 F.Supp.2d 403, 410 (D.Mass.2002), in which the court refused to dismiss a lawsuit in which co-workers may have perceived the plaintiff as "impermissibly feminine for a man", and Ianetta v. Putnam Investments, Inc., 2002 U.S. Dist. LEXIS 3277, (D.Mass.2001), in which the court permitted a lawsuit alleging discrimination because the plaintiff did not conform to the male gender stereotype. These favorable quotes signal that the Mowery court is leaning in favor of the idea that transgender discrimination is sex discrimination. Although the Mowery case is in the Northern District of Florida, and not the Middle District which covers Largo, recent opinions on exactly the same issue by nearby jurisdictions are often considered very persuasive.
Interestingly, the Eleventh Circuit may be in on the fun too. The Eleventh Circuit, which covers appeals from the federal courts in Florida, Georgia and Alabama, is often considered very conservative. This is not true in every area, however, for it is quite progressive in the area of sex discrimination. For example, it ruled in favor of male plaintiffs who alleged sexual harassment by other males in 1997, a time when more conservative circuits were throwing out such claims on the ground that they were not motivated by “sex.” Its decision in Fredette v. BVP Management Associates, 112 F.3d 1503 (11th Cir. 1997), anticipated by a year the Supreme Court’s surprising Oncale decision, which permitted male-on-male sexual harassment claims. The Oncale decision is considered by some to be an opinion which implicitly recognizes that “sex discrimination” includes discrimination based on gendered behavior, whether or not sexually motivated. Based on this analysis, a suit by Stanton in federal court alleging violation of Title VII, the federal anti-discrimination statute, could prove a winner, if all the stars lined up just right.
One of the things that may get in the way of those stars is the fact that Title VII, by its own terms, doesn’t apply to “any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision.” 42 USC 2000e-2(f). Is Stanton a member of the “personal staff” of the elected officials of the City Commission? Is she “an appointee on the policymaking level?” These might be some of those “who knows?” type questions. Fortunately, dear Reader, the courts have set some guidelines on these issues.
In determining whether a public employee falls within the “policymaking level” exception to Title VII, the looks at whether: (1) the employee has discretionary, rather than solely administrative powers; (2) the employee serves at the pleasure of the appointing authority; and (3) the employee formulates policy. In Gomez v. City of Eagle Pass, 91 F.Supp.2d 1000 (W.D.Tex. 2000), the federal court held that the City Manager was not a "policymaker" for purposes of determining whether position was subject to Title VII, even if the city manager had power to fire and hire. The city council held power to determine city policy, the city manager was responsible only for ministerial execution of the laws and the administration of city, and the city manager's personnel decisions were circumscribed by local custom, city ordinances, state statutes and the city charter.
In regard to the “personal staff” exception, the Gomez court looked at (1) whether the elected official has plenary powers of appointment and removal, (2) whether the person in the position is personally accountable to only that elected official, (3) whether the in the position at issue represents an elected official in eyes of public, (4) whether the elected official exercises a considerable amount of control over position, (5) the level of the position within the organization's chain of command, and (6) the actual intimacy of the working relationship between the elected official and the person filling the position. The court found that the City Commission was not an "official," so the exception did not apply.
The same thing happened recently in Alabama. In Horne v. Russell County Commissioners, 379 F.Supp.2d 1305 (M.D.Ala. 2005), the federal court in Alabama found that the County Administrator, hired by the County Board, did not fall within the exceptions, because the plain language of the statute does not encompass persons who serve at the direction of a board or body of public officials, rather than a single public official. There is even a case in the Eleventh Circuit Court of Appeals, which covers appeals from Florida federal courts, that has recognized that a City Manager in Florida can sue the City Commission for gender discrimination, although the plaintiff lost in that case. Lyes v. City of Riviera Beach, Fla., 166 F.3d 1332 (11th Cir. 1999). The Eleventh Circuit has also noted that "other courts, often citing the legislative history of Title VII, have also concluded that the ... personal staff exemption ... is to be narrowly construed." E.E.O.C. v. Reno, 758 F.2d 581, 584 (11th Cir.1985). So Title VII covers Stanton, and the exceptions for public policymakers and staff of elected officials do not apply.
As a side note, Mr. Stanton also has a cause of action for violation of due process against the State and City under the federal constitution. A tenured employee is entitled to oral or written notice of the charges against him, and a hearing before an unbiased decision-maker. McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994). Obviously, there is a claim of bias against the City Commission here. The catch-22 of McKinney, however, is that the ruling must be appealed to the state court within 30 days of the City Commission’s decision in a procedure called “writ of certiorari,” as set forth in the Florida Civil Procedure Rule 1.630, and the Florida case of Stansberry v. City of Lake Helen, 425 So.2d 1157 (Fla.App. 1982). If this writ is not filed within 30 days, then the federal courts will throw out any later claim of due process violation because the employee didn’t give the State a chance to correct the violation.
Above I’ve discussed federal rights, but there is law on the state level that could give grounds for a lawsuit. Although Florida has no statute explicitly prohibiting discrimination on the basis of gender identity, the Florida Division of Administrative Hearings has ruled that an individual with “gender dysphoria,” a medical term for transsexuality, is within the disability coverage of the Florida Human Rights Act. Smith v. City of Jacksonville Correctional Inst., 1991 WL 833882 (Fla. Div. Admin. Hrgs. 1991). In that case, the tribunal found that a corrections officer who was dismissed upon revealing transsexuality was protected from dismissal based upon the disability created by the perceptions of the employer. The tribunal also rejected the employer's claim that inmates would not respect a transsexual, thus making non-transsexuality a "bona fide occupational qualification." If the Smith case is applied to Mr. Stanton's case, then discrimination based on his gender identity is discrimination based on perceived disability within the conception of Florida state law, and the claim that city residents and employees will not respect Stanton after transition cannot be used as a justification. In the St. Petersburg Times story on the legal issues, the paper quoted Tampa lawyer Theresa Gallion, a managing partner at Fisher & Phillips, a national labor and employment law firm, who cautioned against putting too much stock in that case, noting that it is not binding on Florida courts.
"The bottom line is that there are very few protections unless you live in one of the states" that specifically list transgender people in their antidiscrimination laws, she said.
She's right, of course, that the Florida Division of Administrative Hearings decision is not binding on other Florida courts outside the administrative system, but the decision points in Stanton's direction, and against the City Commission. But then Ms. Gallion should be expected to side with management, as her firm, Fisher & Phillips, only represents management.
Strangely enough, after all the talk about how Largo voted down three proposed ordinances covering gender identity, there is, in fact, a city policy that could provide protection to Stanton. HRC reported that Largo approved such a policy after the 2003 proposal was defeated, as set forth below. Here's a quote from that policy as found on the internet:
A-3. Implementation of Discrimination and Harassment Prohibition Policy
“Human Resources Director Sinz reports that the City Commission has approved the Discrimination and Harassment Prohibition policy effective immediately. The new policy specifically prohibits bias, prejudice, intimidation, coercion and harassment by any City employee at the work place, during business trips, or at City functions. The new policy mandates treating all human beings with respect regardless of race, religion, national origin, gender, age, disability, sexual orientation, and gender identity or expression.”
This new policy was also reported in the local papers in 2004. So Stanton has federal, state and local law potentially protecting him from dismissal on the basis of gender identity. If I were on the City Commission of Largo, I’d call the City’s insurance agent ASAP to check on the litigation coverage.
(*NCLR, which is representing Stanton, has issued a release noting that it will "use male pronouns out of respect for Steve’s preference for their use by those who aren’t his close family and friends until he begins his transition.")
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For an update, see http://jweissdiary.blogspot.com/2007/03/update-on-law-covering-steve-stanton_20.html
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