About Us  |  About Cheetah®  |  Contact Us

For transgender workers, not a transformative year

December 23rd, 2015  |  Kathy Kapusta

In what it says is the first publically available government-run testing project in the nation to analyze how employers respond to resumes from applicants perceived as transgender compared with resumes of applicants not so perceived, the D.C. Office of Human Rights (OHR) found that transgender individuals face substantial challenges in their efforts to obtain employment in the District of Columbia. Regarding the agency’s November 2015 report, OHR Director Mónica Palacio observed that “Statistical and anecdotal evidence tells us transgender and gender nonconforming people are experiencing employment discrimination at very high rates, and this testing project confirms that unfortunate truth.”

So how have transgender employees fared in the courts over the past year? A look back at cases decided in 2015 reveals the following:

Wrong pronoun. In December, a federal district court in Florida dismissed on summary judgment the gender identity bias and hostile work environment claims of a transgender employee who alleged she was called “sir” on multiple occasions and ultimately fired. The long-time on-call server provided legal documentation in 2005 showing her identification as a female.

While she alleged in her HWE claim that she was misgendered every day since the day she presented the court order legally changing her name, she only provided specifics as to three incidents, which were relatively minor and did not amount to frequent conduct. The conduct may have been upsetting but the use of the wrong pronoun was not profane, said the court. She also failed to identify a similarly situated comparator or produce other evidence from which discriminatory intent could be inferred; thus, her gender identity bias claim also failed.

“What is that?” That same month, the Fifth Circuit affirmed summary judgment against a retaliation claim by an employee who allegedly was threatened with a 50-percent pay cut because she hired a transgender truck driver. The employee claimed that when a visiting regional director saw the transgender driver, she asked the employee, “What is that and who hired that?” The appeals court, however, found that a reasonable person in the employee’s shoes would not have been dissuaded from protected activity by the threat because it was made by someone outside her chain of command. The high-level employee should have waited to receive confirmation as to whether the threat was official before resigning, said the court.

Tried not to act like a girl. In October, a federal district court in Maryland granted summary judgment against a transgender employee’s gender-based claims. A few years before his termination, the long-tenured employee was diagnosed as being transgender. Although he continued to dress like a man, use the men’s room, and “tried not to act like a girl,” he grew out his hair. He claimed a coworker threatened him because he was transgender, said he would rape him, and poked various parts of his body.

The employee was fired after he asked the coworker whether he “wanted to take the argument outside,” raised his middle finger, and used profanity toward him. Because the employee’s actions and word choice could have been perceived as threatening and consequently violated his employer’s policies, the court found he was not meeting his employer’s legitimate expectations. Further, he failed to show that his employer’s real reason for terminating him was his transgender status.

“Don’t rock the boat.” Just a month earlier, a federal district court in Arkansas ruled that a jury could hear gender stereotyping claims by a transgender woman who was fired within months of informing her supervisor of her transition status and legal name change, and within weeks of beginning to wear female attire at work. The court cited contradictory deposition testimony inferring that the stated reason for the firing—she had threatened to sue the site at which she was performing electrical work—was pretext for sex discrimination.

Although the employer argued that transsexuals may not claim protection under Title VII from discrimination based solely on their status as a transsexual, the court pointed out that the employee’s theory of discrimination was that she was terminated because of her gender transition and her failure to conform to gender stereotypes, a theory it found well settled under Title VII precedent.

As to the employer’s contention that the employee could not establish a prima facie case of sex discrimination, the court noted that the employee presented evidence that when she told her supervisor about her transgender status, he instructed her not to “rock the boat” and repeatedly forbade her to use her legal name, talk about her transgender status, or wear feminine clothes at work. Soon after she began wearing feminine attire at work, he allegedly told her she was too much of a distraction and fired her. That was ample evidence from which a jury could find she was fired because of her sex.

“Came on pretty strong.” In June, a federal court in Maryland granted summary judgment against a transgender female’s Title VII and state law claims asserting she was not selected for a position with a police department’s volunteer mounted patrol because of her gender identification and nonconforming gender conduct. A single email from six months earlier, in which a decisionmaker commented to a fellow officer “Hope not promoting the idea??!!” was a stray remark and too far removed. Moreover, she failed to refute the county’s asserted reasons for its actions.

The employee transitioned her gender identity from male to female in 2002, the same year she retired from her 25-year career as a sergeant for the U.S. Capitol Police. In 2011, she applied for a position with the volunteer mounted patrol. Ultimately, she was rejected based in part on the fact that she “came on pretty strong” during her interview.

A magistrate judge first clarified that her gender bias claim was being considered both as to transgender status and as to her nonconformance with gender stereotypes. However, the magistrate found no direct evidence that she was denied the position because she was transgender or because of her self-identified nonconformance with gender stereotypes. She only pointed to the one email, made months prior to the hiring decision. Even if this isolated instance reflected directly on the decisionmaker’s allegedly discriminatory attitude towards transgender persons, it had no relation to the selection process or the selecting officers’ decision to not offer her a position. In fact, the selection process did not begin until six months after the email, and decisions were not made until nine months after.

Nor did the employee provide any evidence that she was rejected for the position in favor of someone not in her protected class or from which bias could be inferred. Only one of the three decisionmakers knew she was transgender and there was nothing to suggest her “nonconforming gender conduct” was even considered. To the extent that their discussion of her “commanding” behavior and tendency to “take over” in her interview had any relation to “nonconforming gender conduct,” the only comments the selecting officers made in this regard related to her past experience as a commanding law enforcement officer, not her status as a transgender woman.

Protected class. Denying a university’s motion to dismiss a transgender female professor’s Title VII hostile work environment claim, a federal district court in Oklahoma rejected the argument that transgender employees are not in a protected class. The argument was inapposite because she alleged the discriminatory actions were based on the university’s dislike of her presented gender, and gender stereotyping falls within Title VII’s purview.

While the university argued that the Tenth Circuit, in Etsitty v. Utah Transit Auth., held that “transsexuals may not claim protection under Title VII . . . based solely on their status as a transsexual,” it went on to clarify that “like all other employees, such protection extends to transsexual employees only if they are discriminated against because they are male or because they are female.”

Here, the court found it clear the employee claimed the university’s actions occurred because she was female but they regarded her as male. Thus, the actions she alleged it took against her were based upon dislike of her presented gender. This distinction, explained the court, was recognized in Etsitty in a footnote citing to the Sixth Circuit case, Smith v. City of Salem, in which the appeals court stated: “Sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior; a label, such as ‘transsexual,’ is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender nonconformity.” The employee’s allegations here brought her claim squarely within the Sixth Circuit’s reasoning, as adopted by the Tenth Circuit in Etsitty.

Unacceptable. In April, a federal district court in Michigan found that in alleging a transgender funeral home director’s failure to conform to sex stereotypes was the driving force behind the decision to terminate her, the EEOC sufficiently pleaded a sex-stereotyping gender discrimination claim under Title VII. Accordingly, the court declined to dismiss the agency’s Title VII claim against the funeral home.

Approximately two weeks after the employee informed her employer and coworkers that she was undergoing a gender transition from male to female and intended to dress in appropriate business attire as a woman from then on, her employer allegedly told her what she was “proposing to do” was unacceptable and fired her. Bringing suit on behalf of the employee, the EEOC argued that the termination decision was motivated by sex-based considerations. Specifically, it alleged that the funeral home fired the employee because she was transgender, because of her transition from male to female, and/or because she did not conform to the employer’s sex- or gender-based preferences, expectations, or stereotypes.

Acknowledging that transgender status is not a protected class, the court observed that if the agency had alleged that the funeral home fired the employee based solely on her status as a transgender person, it would have failed to state a claim under Title VII. But, the EEOC also asserted that the funeral home fired the employee because she did not conform to its sex- or gender-based preferences, expectations, or stereotypes. Although the court noted that the agency, in its brief, appeared to seek a more expansive interpretation of sex under Title VII that would include transgender persons as a protected class (arguing that the EEOC’s “complaint states a claim of sex discrimination under Title VII because [the employee] is transgender and [the funeral home] fired her for that reason,” there was no Sixth Circuit or Supreme Court authority to support this position.

Citing to the Sixth Circuit’s decision in Smith v. City of Salem and the Supreme Court’s decision in Price Waterhouse, the court explained that even though transgender/transsexual status is currently not a protected class under Title VII, the statute nevertheless “protects transsexual persons from discrimination for failing to act in accordance and/or identify with their perceived sex or gender.”

And while the funeral home argued that “[t]o the extent the EEOC’s claim is that [the employee] was terminated due to his gender identity disorder, the claim must be dismissed,” the court pointed out that the complaint never used the term Gender Identity Disorder or asserted that Gender Identity Disorder is a protected class under Title VII. Moreover, to the extent the EEOC asked the court to rule that transgender status was a protected class under Title VII, it declined to do so.

Intimate and private. In a decision several months later addressing discovery issues in the case, a federal magistrate judge ruled that information regarding the transgender employee’s sexual anatomy, her familial background and relationships, and any medical or psychological records related to her gender transition was of the most intimate and private nature. Finding that it would be harassing and oppressive to require its disclosure at this time where the employer failed to show its relevance to the disposition of the gender-stereotyping claim brought by the EEOC on the employee’s behalf, the court granted the agency’s motion for a protective order in part.

Transsexual status not sexual orientation. Because sexual orientation and gender identity, specifically transsexual status, are two different things, a federal district court in North Carolina declined in January to dismiss a transsexual CNA’s Title VII refusal-to-hire claim based on precedent that Title VII did not protect sexual orientation.

The CNA, who was transitioning from male to female, interviewed for three positions at the hospital. At her third interview, a group of CNAs allegedly harassed and ridiculed her about being transsexual. She returned a fourth time for an interview conducted by a department manager and unit charge nurse, whom she alleged was now aware that she was transsexual. After that interview, she was told the charge nurse wanted someone with “more experience.”

Although the hospital argued that neither the Supreme Court nor the Fourth Circuit has recognized Title VII as protecting individuals because of their sexual orientation, the court explained that transgender status differs from sexual orientation. Noting instead that sexual orientation and gender identity are separate issues, and that the CNA never alleged discrimination on the basis of sexual orientation, the court denied the motion to dismiss.

Employer take-away. What does this mean for employers? As these decisions illustrate, while Title VII does not explicitly protect sexual orientation or gender identity, the agency and some courts have found that sex discrimination includes discrimination based on nonconformance to traditional gender stereotypes. Employers should consider updating their antidiscrimination policies to include prohibitions on sex stereotyping. In its Gender Stereotyping: Preventing Employment Discrimination of Lesbian, Gay, Bisexual or Transgender Workers brochure, the EEOC notes that it is illegal for an employer to deny employment opportunities or permit harassment because a woman does not dress or talk in a feminine manner; a man dresses in an effeminate manner or enjoys a pastime (like crocheting) that is associated with women; a female employee dates women instead of men; a male employee plans to marry a man; an employee transitions from female to male or male to female. Employers should also consider training its workforce to use the name and pronouns appropriate to a transgender employee’s new gender.

In addition, OSHA has published a guide to help employers in dealing with the issue of providing appropriate restroom access to transgender workers. Although it includes best practices and discusses federal, state, and local laws pertaining to restroom access by transgender employees, OSHA made clear in a disclaimer that the guide is not a standard or regulation, and it creates no new legal obligations.

Finally, employers should be aware that state laws may also protect against gender identity discrimination.