• Discrimination against Transgender Worker Is Illegal, Federal Appeals Court Rules
  • December 19, 2011 | Author: Michelle E. Phillips
  • Law Firm: Jackson Lewis LLP - White Plains Office
  • “All persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype,” the federal appellate court in Atlanta has held.  Glenn v. Brumby, No. 10-14833, 10-15015 (11th Cir. Dec. 6, 2011).  While the case was brought under the Equal Protection Clause against a public employer, its conclusion also will impact claims brought against private employers under Title VII of the Civil Rights Act of 1964.

    The Facts
    Vandiver Elizabeth Glenn was born a biological male.  Starting in 2005, Glenn began transitioning from male to female under the supervision of health care providers.  Following accepted medical guidelines, Glenn started living as a woman outside of the workplace before making the decision to undergo sex reassignment surgery.

    In 2005, while known as Glenn Morrison and presenting as a man, Glenn was hired by the Georgia General Assembly’s Office of Legislative Counsel (“OLC”).  Sewell Brumby, the head of the OLC since 1987, was responsible for personnel decisions.  (Brumby retired on August 31, 2011.)

    In 2006, Glenn informed her direct supervisor, Beth Yinger, that she was a transsexual and was in the process of becoming a woman.  Later, on Halloween, when OLC employees were permitted to come to work wearing costumes, Glenn showed up presenting as a woman.  Brumby told her that her appearance was not appropriate and asked her to leave the office.  Brumby later discussed Glenn’s appearance with Yinger and Yinger told him that Glenn intended to undergo gender transition.

    In the fall of 2007, Glenn informed Yinger that she was ready to proceed with gender transition and would begin coming to work as a woman and was changing her legal name.  Yinger told Brumby and Brumby terminated Glenn, calling Glenn’s gender transition “inappropriate.”

    Glenn sued in federal court, asserting that she was discharged on the basis of gender in violation of her 14th Amendment right to equal protection. The trial court granted summary judgment in Glenn's favor.  The Court of Appeals for the Eleventh Circuit affirmed.

    Discrimination for Non-Conformity
    The Court said that the question in this case is “whether discriminating against someone on the basis of his or her gender non-conformity constitutes sex-based discrimination under the Equal Protection Clause.” (Emphasis added.) The  Eleventh Circuit Court followed the Price Waterhouse decision, in which the U.S. Supreme Court held that denying partnership to a  highly skilled, successful female accountant who did not conform to the gender-based stereotypes of how a “lady was expected to act”  violated the prohibition on sex discrimination in Title VII.  Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In Price Waterhouse, Ann Hopkins was advised by her mentor that she could improve her partnership chances if she would “‘walk more femininely, talk more femininely, dress more femininely,’” and that she needed a “‘course in charm school.’”  The Supreme Court held that Title VII barred not just discrimination because of biological sex, but also gender stereotyping.

    After Price Waterhouse, many federal courts have ruled that discrimination against transgender individuals violates Title VII.  The Eleventh Circuit Court also cited Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004), in which the federal appeals court in Cincinnati ruled that discrimination against a transgender individual because of his or her gender non-conformity is gender stereotyping prohibited by Title VII and the Equal Protection Clause.

    “All persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype,” the Eleventh Circuit Court declared.  It concluded, “[A] government agent violates the Equal Protection Clause’s prohibition of sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity.”

    The next question addressed by the Court was whether Glenn was fired on the basis of sexual stereotyping.  To prove her discrimination claim, Glenn was required to show through direct or circumstantial evidence that Brumby acted on the basis of Glenn’s gender non-conformity.

    The Court found ample evidence in the record that Brumby discharged Glenn for her gender non-conformity:  Brumby testified that he fired Glenn because he considered it “inappropriate” for her to appear at work dressed as a woman and found it “unsettling” and “unnatural” that Glenn would appear wearing women’s clothing.  Brumby admitted his decision was based on both his “perception of Glenn as ‘a man dressed as a woman and made up as a woman’” and “the sheer fact of the transition.”

    “If this were a Title VII case, the analysis would end here,” the Court said, as discrimination had been proved.  However, this case was based on the Equal Protection Clause, because Glenn was a government employee, and the Court considered, under heightened scrutiny, whether Brumby showed a “sufficiently important governmental interest” in or an “exceedingly persuasive justification” for his discriminatory conduct.

    Brumby argued that he was concerned about potential litigation from other women objecting to Glenn’s restroom use.  The Court was unconvinced, principally because the record showed the OLC had only single-occupancy restrooms and Brumby testified that he “viewed the possibility of a lawsuit by a co-worker if Glenn were retained as unlikely....”  Brumby did not offer any other reason for firing Glenn because of her gender non-conformity that would achieve a “sufficiently important governmental purpose.”  Accordingly, the Court affirmed summary judgment for Glenn.  (Glenn reportedly has returned to her job at the OLC.)

    Employers should be mindful of the Glenn decision, as it shows a court will not defer to a manager’s personal beliefs or discomfort regarding an employee’s transition when there is nothing more than “a speculative concern about lawsuits arising if [the employee] used the women’s restroom.” Employers should consider examining their harassment policies to ensure that all employees, whether they are transitioning or generally not conforming to traditional gender-based roles, are treated with respect and tolerance.

    New Jersey Case
    Pending in the Superior Court of New Jersey is a case of first impression regarding a transgender man who was fired from his position as a urine monitor for a drug treatment center.  In response to the employee’s suit that he was fired in violation of the New Jersey Law Against Discrimination (LAD), which protects transgender people from employment discrimination, the center argues that the firing was lawful, “since the sex of the employee engaged in that particular job position is a bona fide occupational qualification.”  Devoureau v. Camden Treatment Associates, LLC, t/a Urban Treatment Associates, Inc.  The court’s decision will be followed closely by employers as it could affect the rationale underlying any future BFOQ-based decisions.

    ***

    In addition to reviewing harassment policies with employees, employers should consider providing training on gender identity/gender non-conformity issues or supplementing their existing EEO (equal employment opportunity) training programs to address these burgeoning issues. As of November 2011, 17 states, the District of Columbia, New York City and San Francisco, among other localities, have outlawed employment discrimination based on gender identity. Many companies have developed gender transition guidelines, which provide helpful parameters and clearly defined expectations for the transitioning employee, the Human Resources Department and the rest of the staff.