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LABOR & EMPLOYMENT LAW — 12/20/07

Transsexual job applicant can pursue Title VII sex bias claim

A federal district court in the District of Columbia concluded that a male-to-female- transsexual job applicant could proceed with her Title VII sex bias claim against the Library of Congress, which allegedly withdrew its job offer for a terrorism research analyst position with the Congressional Research Service after the applicant disclosed that she was under a doctor's treatment for gender dysphoria and would be transitioning to a female before beginning work with the agency. (Schroer v Billington, DDC, 90 EPD ¶43,028)

When the applicant met with the decisionmaker to discuss the details of her start date, she disclosed that, consistent with her treatment, she would present herself at work as a woman, change her name and begin dressing in traditionally female clothing. In part to allay any concerns the decisionmaker might have about whether she would be dressing in a workplace-appropriate manner, she brought photographs of herself dressed as a women. The next day, the decisionmaker withdrew the offer, deciding that "'for the good of the service,'" the applicant would not be a "'good fit'" given the "'circumstances that [they] spoke of yesterday.'" After exhausting her administrative remedies, the applicant filed suit under Title VII. Her amended complaint alleged that the decisionmaker's refusal to hire her was motivated by her failure to conform to sex stereotypes. She also alleged discrimination against transsexuals "because they are transsexuals" might "'literally'" be discrimination "'because of…sex.'"

Explaining that Title VII prohibits bias against employees, transsexual or not, for failing to act or appear sufficiently masculine or feminine enough for their employer, the district court held that the applicant's transsexuality was not a bar to her sex bias claim under a sex stereotyping theory developed in Price Waterhouse and its progeny. Here, the applicant did not claim her non-selection resulted solely from disclosing her gender dysphoria and her intention to present herself as a woman. Rather, she asserted that she was discriminated against because, when presenting herself as a woman, "she did not conform to [the Library of Congress's] sex stereotypical notions about women's appearance and behavior," confirmed the court.

Without deciding the applicant's alternative theory alleging bias simply because she was a transsexual, the court did note there was precedent for the theory based on the Sixth Circuit's decision in Smith v City of Salem (85 EPD ¶41,661). In Smith, the Sixth Circuit held that Title VII's reference to "sex" encompasses both biological differences between men and women and sex bias—"'discrimination based on a failure to conform to stereotypical gender norms.'" However, the court also noted that the House recently passed the Employment Non-Discrimination Act (H.R. 3685), which would ban discrimination only on the basis of sexual orientation, not gender identity, suggesting that as a result, the applicant's definition of sex under Title VII might be too expansive.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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