Sunday, August 24, 2008

Morales v. ATP: Connecticut Federal Court Holds Gender Identity Discrimination in Violation of Title VII

The Connecticut Law Tribune has a story on a federal lawsuit, involving the sexual harassment and termination of a transgender employee in Connecticut, which was thrown out by the court: Connecticut Law Tribune: Transgender Workers Struggle With Bias Claims The Court's reasoning demonstrates the difficulty of obtaining redress from the courts for transgender clients. Interestingly, the court specifically held that discrimination based on gender identity is sex stereotyping that violates both Title VII and Connecticut law. That is quite startling. However, the Court also found that the plaintiff Morales, an openly transgender woman, did not submit any evidence that her firing was based on her gender identity, as opposed to the company's contention that it fired her for absenteeism. In addition, it held that her sexual harassment hostile work environment claim failed because because she submitted no evidence that the harassment was connected to her gender identity or expression. You can find the text of the opinion here.

The Law Tribune article has a few inaccuracies: "A 1994 study contended that approximately 1 in 30,000 people born as males and 1 in 100,000 people born as females undergo a sex-change operation in this country." First, the GLAAD Media Reference Guide specifically notes that the term "sex-change" is inaccurate and improper, as it suggests that one must have surgery in order to be transgender. (It is also considered offensive by many transgender people.) Second, I am not aware of any 1994 study showing how many people have sex reassignment surgery (though there are some in 93 and 96 and other years). Rather, these seem to be numbers from small studies in Europe from the 1960s that are cited in the DSM IV (the Diagnostic and Statistical Manual of the American Psychiatric Association). More current numbers suggest 1 in 1000. (See Lynn Conway's excellent monograph on the prevalence of transsexuality for a discussion.)

Putting aside these nuances, the article focuses more on the difficulty of prevailing in a Title VII claim than the startling fact that a lower court judge in Connecticut would hold that discrimination based on gender identity is a violation of Title VII. It is even more startling that the Court relied on the Second Circuit's Dawson opinion. (The Dawson opinion threw out Dawn Dawson's gender stereotyping claim on the ground that it was really a sexual orientation claim, which is not covered by Title VII. Since Dawson did not claim to be transsexual, the case doesn't really stand for the proposition that Title VII protects transsexual plaintiffs.) If the Morales opinion is followed by other courts in Connecticut, then discrimination based on gender identity is a violation of Title VII, at least in Connecticut (as it is in many other federal districts, particularly those in the Sixth Circuit). That's a big if, however.

However, the opinion is less than satisfactory from my point of view. The Court threw out the claim of sex discrimination because the plaintiff could not show that her job performance was satisfactory due to her absenteeism, and because she could not connect the termination to her gender identity. In other words, because the employer's policy permitted termination because of absenteeism, and there were letters in her file about her absenteeism which threatened termination if the absenteeism continued, the employer was entitled to terminate her. The Court gave no weight to the fact that the HR manager had not used the absenteeism as a reason for termination up to that point, and was prepared to allow Morales to continue in employment in a different department, until the HR manager talked to the manager who had harassed Morales, at which point Morales was terminated. This is a version of what is known as "cat's paw" liability, so named for the Aesop's fable in which the cat stole the chestnuts, but at the monkey's suggestion. Here, although the employer terminated for a legitimate reason, it relied upon the urgings of a supervisor with known animus in deciding to take that action. The Court, however, insisted that Morales had not establish any connection between the discriminatory conduct by the supervisor and the decision to terminate. The Court also stated that, since the HR manager who hired Morales knew that she was transgender, the HR manager was effectively insulated from the supervisor's improper motive because the HR manager was obviously not biased. This fails to address the fact that the HR manager was relying upon the urgings of the biased supervisor in deciding to terminate.

The Court also threw out the sexual harassment hostile work environment claim. Morales submitted evidence of the following, which the Court held was not sufficiently severe to constitute an abusive work environment: (1) comments from supervisors about trying to get her fired, getting rid of the faggot, what would happen when sticking "my d*ck up your ass", her big pussy, whether her ovaries hurt, which employee she would like to have sex with, and whether they would have sex with her as a male or a female, and (2) being singled out for tirades and ridicule, and refusal to assign favored overtime work. The Court refused to consider any incident as sexual harassment unless it explicitly referred to her transsexuality. This limits discrimination claims to only those situations involving managers who explicitly state the reason for each and every incident at the time of that incident. Even the most prejudiced of managers would be able, if they have any smarts whatsoever, to drive a truck through that loophole.

The Supreme Court long ago held that a plaintiff need only show that race, color, religion, sex, or national origin was a "motivating factor" for any employment practice, and that direct evidence of discrimination is not required in mixed-motive cases. ("Mixed motive" cases refers to cases where, as in Morales, there are both improper and legitimate reasons that may have been involved in the dismissal.) See Desert Palace, Inc. v. Costa 539 U.S. 90 (2003). Thus, the idea that Morales needed to show direct evidence that the discrimination in each and every incident of harassment was referable to her transsexuality is absurd. Moreover, since gender identity discrimination is a form of sex discrimination as prohibited by Title VII, it is inappropriate to separate discrimination based on her sex from discrimination based on her gender identity. Even though the harasser didn't say anything about her transsexuality when talking about sticking his d*ck up her ass, it's still sexual harassment. I mean, c'mon, Judge. What were you thinking?

The Court dismissed this lawsuit at the "summary judgment" stage, which means before any trial of the facts. Thus, the Court held that, even if each and every allegation of the plaintiff Morales were treated as 100% true, there is no way that she could win the lawsuit, and so a trail would be a waste of time. Thus, it is not a question of whether Morales's allegations were believable or not. The only question before the Court was "if everything Morales says is true, was she sexually harassed"? The Court's answer was: "no, because the harasser did not clearly state that reason for his harassment was her transsexuality." Furthermore, to the extent that he did give a reason, he used the word "faggot" to characterize the plaintiff's transgender status. Therefore, the Court concluded, this is sexual orientation discrimination, not covered under Title VII, rather than gender identity discrimination, which is covered under Title VII. However, the Court specifically noted at the beginning of the opinion that the plaintiff is a heterosexual, and is not a homosexual. The Court then held, confusingly, that Morales had, in fact, raised issues of gender identity discrimination, but that the harassment specifically related to the gender identity issues, in isolation from the other harassment, was relatively minor. Therefore, the Court held that no significant harassment had occurred.

I think this violates the Desert Palace doctrine, and is made even more interesting by the fact that the Court cited the Desert Palace decision.

The Court went further, and said that Morales's claim failed because Morales hadn't properly used the harassment complaint procedures in the employee handbook, despite the fact that she did complain to the HR manager. However, the only procedure specified in the handbook was to tell the HR manager, which Morales did. This defense, called the Faragher-Ellerth defense, is designed to insure that employers are not held liable when the employee fails to report harassment, thus giving the employer no opportunity to redress the situation. That's only fair, except in this case the employee did report the harassment, and was promptly fired at the urging of the harasser. Moreover, this defense cannot be used when the harassing supervisor takes adverse employment action against the employee. Because the supervisor was able to get her fired, I would think the Faragher-Ellerth defense doesn't really apply.

The court acknowledged that, under Connecticut law, sexual orientation is a protected category, but decided that even though there was plenty of sexual harassment based on sexual orientation, Morales's failure to report the harassment (even though she really did report it) meant the employer wasn't liable.

The Court could easily have decided this case differently, on a number of accounts.

I think the most important lesson of the Morales opinion for both employers and employees is that Title VII law is still uncertain, and that anything can happen in a courtroom. The best recourse is to relentlessly document everything and to show how it relates (or doesn't relate) to the employee's transgender status.

More on this:
Workplace Prof Blog
Sexual Orientation and the Law Blog
Connecticut Employment Law Blog