Litigating the Transgender Revolution

In 2011, I decided that it was time to turn to the courts to help transgender individuals who experienced discrimination at work based on gender identity or expression. I have handled eight cases: one settled, one ended when the alleged witnesses scattered to the four winds, five are now before the EEOC, and one is in court awaiting a ruling on a motion for summary judgment. (The motion for summary judgment is a common legal tactic, a request to the court to render judgment without a trial, on the grounds that there is no genuine dispute of material fact for the jury to hear at trial.)

I've handled cases around the country: Florida, Georgia, Arizona, Pennsylvania, and Tennessee. I also have a case involving the gender expression of a non-trans employee in court at the summary judgment stage.

These cases are extremely time-consuming, involving hundreds of hours each.  Fortunately, that time is consumed in little dribs and drabs, allowing me to work on several cases simultaneously.  And then sometimes, like when I have to defend against a motion for summary judgment, or when a trial is scheduled, the time is eaten up in huge chunks, and nothing much else gets done for weeks.

I've learned a few things about the legal landscape of employment discrimination.  It's not an easy type of case to win.  National statistics are that about 5% of employment discrimination plaintiffs obtain a reasonable cause ruling from the federal Equal Employment Opportunity Commission ("EEOC"), and about 15% of employment discrimination plaintiffs win in the courts.  You have to present several different types of proofs, and employers have learned to cover their tracks extremely well.

In this blog, I will talk about the types of proofs necessary for an employee to win his or her case. I will also talk about the need to devote movement resources to litigate these cases and to train lawyers about these types of cases.  Most plaintiff-side lawyers are reluctant to take cases involving trans employees, because they will be working on a contingency fee (i.e., they get a percentage of any award, and nothing if there is no award) and they understand little about trans issues, and don't know how to evaluate the cases.

It's clear to me that the transgender revolution will be litigated, rather than won in the realm of politics.  The federal bill proposed to prohibit discrimination based on sexual orientation and gender identity ("ENDA") has languished for years, with little hope of passage until Congressional Democrats again become the majority, something which is not predicted to happen in the next several years. Of course, the last time the Congressional Democrats were the majority in both Houses of Congress, they treated ENDA like a political hot potato and left it to die.

In addition to the interesting points I'm learning about the court system, I've also noticed that there are beginning to be more reported cases on this type of employment discrimination. There needs to be some place to talk about these cases.  We should also talk about the many cases now springing up regarding sexual orientation and marriage equality, which hold potentially important analogies for gender identity discrimination.  It's for these reasons that I'm motivated to start blogging again.

Watch this space.

EEOC File 13: Waiting for Godot

A country road. A tree.

Evening.
Estragon, sitting on a low mound, is trying to take off his boot. He pulls at it with both hands, panting.
He gives up, exhausted, rests, tries again.
As before.

Enter Vladimir.

ESTRAGON:
(giving up again). Nothing to be done.

VLADIMIR:
(advancing with short, stiff strides, legs wide apart). I'm beginning to come round to that opinion. All my life I've tried to put it from me, saying Vladimir, be reasonable, you haven't yet tried everything. And I resumed the struggle.

Thus begins Samuel Beckett's classic, Waiting For Godot, which reminds me a lot of filing a complaint with the EEOC. Cross-posted from Bilerico.com - Click here to read more...

Where to File an Employment Discrimination Lawsuit

When you experience discrimination at work, first stop should be HR, though you have to be careful about how you approach it. 

But what happens if HR doesn't solve the problem after a reasonable period of time? Your next stop is an employment discrimination lawsuit. My best advice for that is to find a lawyer who has experience in the area, and is going to charge you a fee you can afford, or, better yet, will take the case on a contingency, meaning no legal fee unless an award is given. You should keep in mind that a contingency fee is a business arrangement. That means that the lawyer who accepts a case under such an arrangement is betting that there will be an award, and that it will be enough to cover the time and office expenses spent on the case. This lawyer is generally not on a crusade for justice, except to the extent that it means getting you some compensation.

It is a good idea to contact legal organizations, like Lambda Legal, the ACLU, the Transgender Law Center, or the Transgender Legal Defense and Education Fund, to see if they are interested in the case. Their resources are limited, however, so they only take on cases that have a good chance of success and fit within certain legal priorities that the organization considers most important for the community. They can take on only a fraction of the cases flooding into their offices. Even they, however, won't necessarily want to take the case to the U.S. Supreme Court. Some cases are just better off being settled, because litigation is always a roll of the dice.

Cross-posted from Bilerico.com. Click here to read more...

Job Discrimination Complaint Pitfalls & Traps

You have had just about enough of this nonsense. Your work environment is positively hostile because of your sex, sexual orientation, gender, gender identity, gender expression or whatnot. You've been the subject of jokes, of harassing comments, of prank phone calls, weird things put in your desk or locker, of uncomfortable touching or even punching, threats --veiled or not so veiled -- of physical harm and loss of your job. You have tried to ignore this, hoping that showing you're not rattled and taking the higher ground will make this go away.

 Should you file a complaint with HR? Well, you could, but then there is what happened to Robert Jordan.

"When the news broke in October 2002 that police in Montgomery County, Maryland, had captured two black men suspected of being the snipers who had randomly shot 13 individuals, killing 10, in separate incidents over a period of weeks in Maryland, Virginia, and the District of Columbia, an IBM employee watching the news on television in one of IBM's Montgomery County offices exclaimed, 'They should put those two black monkeys in a cage with a bunch of black apes and let the apes fuck them.' A fellow employee, Robert Jordan, who is black, was in the room at the time and heard the exclamation. Jordan was offended and discussed the incident with two other coworkers, who told him that the employee had made similar comments before. Jordan then reported the incident to management. A month later Jordan was fired, purportedly because he was 'disruptive,' his position 'had come to an end,' and management personnel 'don't like you and you don't like them.'" Jordan v. Alternative Resources, et al., 458 F.3d 332 (4th Cir. 2006) (expletives undeleted).

 He lost his case.

 Cross-posted from Bilerico.com. Click here to read more...

The Employment Discrimination Lawsuit Blues

Let's say that your troglodyte co-workers call you "faggot" or "Ms. Thing" or "he" when you're a "she" or vice versa, or make some other neanderthal comments. And let's say you are not going to take that kind of treatment, and you want to enforce your rights to be treated with dignity under the law. What do you do?

 Federal law prohibits employment discrimination based on sex, which has been interpreted to mean gender identity or expression, as in transgender identity, or non-standard gender, as in gay stereotyping. If you work for a public employer, sexual orientation is covered by some federal courts under the U.S. Constitution. A number of state and city laws also prohibit employment discrimination on these bases. Most large companies also don't allow that kind of behavior and say so in their policies. But what does it mean to try to enforce these rights?

 I've recently reactivated my law licenses in New York and New Jersey, and undertaken a number of lawsuits for people who have requested my assistance as a lawyer. So I'm seeing a whole different side to things, beyond the academic theories I've been spending time with for the past decade. It's a jungle out there.

Cross-posted from Bilerico.com:  Click Here To Read More

Trans Activism 2013-style

It's been a long time since my last blog, and I am anxious about getting back in the saddle.  A lot has changed since I last blogged in September. At that time, the most important thing was getting pro-equality candidates elected, and we did that.  The re-election of President Obama was the best thing for equality, as was the election of our largest cadre of LGBT Members of the House of Representatives, including my own Sean Patrick Maloney in NY-18 (please like his Facebook page!), and the election of Senator Tammy Baldwin.

But it's not about legislation right now.  The government agencies and the courts are where it's at now. I have moved my activism to those arenas.  And it's time to start blogging again.    

It's been busy, but lately, blogging has been on my mind. It's not enough to go into our various little cubby holes and do our work.  It's important to tell each other what we're up to, providing encouragement to keep going in the face of life's obstacles, and also learning something about what the next challenges are, and where the action is likely to be.  For example, ENDA is so 2000s.  Yes, it will get passed at some point, and yes, we should still continue to ask for it.  But I'm not putting all my eggs in that basket right now, because the House is too dominated by conservatives to make it worthwhile.  Same thing with GENDA in New York State.

Cross-posted from Bilerico.com.  Click here to read more