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LABOR & EMPLOYMENT LAW — 07/15/09

DOJ will not appeal transgender veteran's $491,190 award against the Library of Congress

The US Department of Justice (DOJ) has decided not to appeal a federal district court ruling awarding transgender veteran Diane Schroer a total of $491,190 for the discrimination she suffered because of her sex after being refused a job with the Library of Congress. The deadline for seeking an appeal was June 30, 2009. The American Civil Liberties Union (ACLU) has represented Schroer in her case (Schroer v Billington, DDC, No 1:05-cv-01090-JR).

The Obama Administration's decision whether to appeal the final ruling in the case has been closely watched, said the ACLU in a July 1 press release, and is consistent with the Administration's campaign promises to not only protect transgender workers against discrimination and the Administration's recent order taking steps to bar gender identity discrimination in federal employment.

"I am grateful that the court took the time to examine the case in detail and come to a fair and unbiased decision. In that same light, I am gratified that the current administration saw this for what it was, a case of sex discrimination focused against transgender people, and recognized that it must end in this country," said Schroer, an Army Special Forces veteran with 25 years service. "The important signal that the Administration's decision sends to all LGBT individuals gives me renewed hope and restores some of my shaken faith in what our country stands for."

Background. On April 29, 2009, the District Court for the District of Columbia awarded Schroer a total of $491,190, including $183,653 for back pay and benefits, $300,000 for emotional pain and suffering, and $7,537.80 for other out-of-pocket expenses that were incurred as a result of the Library's discriminatory conduct.

Schroer had applied for a terrorism specialist position at the Library of Congress. Schroer was well-qualified for the job, having served in the US Armed Forces and having directed an organization that tracked and targeted international terrorist organizations. At the time she applied for the position, Schroer was undergoing the process to transition from male to female, but had not yet reached the stage of presenting herself as a woman. When she interviewed for the job, she used her legal, male name and presented herself to the decisionmaker with a male appearance. The Library of Congress offered her the job.

After the hiring paperwork had been submitted, but before she actually started work, Schroer told the decisionmaker 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, she brought photographs of herself dressed as a woman. The next day, the decisionmaker withdrew the job offer, stating that Schroer would not be a "good fit" for the Library of Congress. With the help of the ACLU, Schroer filed suit under Title VII. The Library moved to dismiss the case on different occasions, claiming that transsexuals were not covered under Title VII. The motions were denied (See 87 EPD 42,334 & 90 EPD 43,028).

After a bench trial in August 2008, District Court Judge James Robertson found that the Library of Congress had violated Title VII by discriminating against Schroer because of sex (91 EPD 43,333).

While the court found that the Schroer's gender identity made her Title VII sex bias claim under the sex stereotyping theory "difficult" because it "may look a great deal like discrimination based on transsexuality itself," which nearly all federal courts have said is unprotected under Title VII, the court held that she was entitled to judgment on her claim. The record revealed that the decisionmaker who evaluated her did so based on sex stereotypes. The decisionmaker admitted that when she viewed the photographs of Schroer in traditionally feminine attire, with a feminine hairstyle and makeup, not only did she see a man in women's clothing, but she believed that others at the Library would not take her seriously. The decisionmaker also stated that she had difficulty understanding the Schroer's decision to "transition" because of her prior Army and Special Forces background "as a particularly masculine kind of man." The court found that it did not matter for purposes of Title VII liability whether the Library withdrew its job offer because it perceived the applicant to be "an insufficiently masculine man, an insufficiently feminine woman, or an inherently gender-nonconforming transsexual" --the comments of the decisionmaker could be parsed out each way.

The court also ruled that the Schroer was entitled to judgment "based on the language of the statute itself," as the Library's refusal to hire her "was literally discrimination 'because of...sex.'" Drawing an analogy to religion, the court explained that an individual who changes religions from Christianity to Judaism cannot lawfully be fired by an employer that professes to harbor no bias toward Christians or Jews, but only "converts." "That would be a clear case of discrimination 'because of religion.' No court would take seriously the notion that 'converts' are not covered by the statute," wrote the court. Such should be the case where a plaintiff has changed her sex and faces discrimination as a result, the court reasoned. "The Library refused to hire [Schroer] because she was changing her physical sex through surgery. Likewise, it falls within the literal definition of 'because of...sex.'"

"We are pleased and relieved that the Obama Administration has decided to bring an end not only to years of hard-fought litigation but also to a painful chapter of Ms. Schroer's extraordinary life," said Sharon McGowan, a staff attorney with the ACLU LGBT Project. "The Administration's decision not to challenge this important civil rights ruling is a welcome sign that it intends to live up to its commitment to help end transgender discrimination in the workplace."

"This case put employers on notice that discrimination against transgender individuals is like any other form of discrimination - counterproductive and against our principles as a nation," added Schroer. "But this case alone won't end the rampant discrimination that transgender people face throughout the country. That's why we need Congress to pass the Employment Non-Discrimination Act that was introduced last week."

In addition to McGowan, the legal team consisted of Ken Choe, Senior Staff Attorney for the ACLU LGBT Project, James Esseks, Litigation Director for the ACLU LGBT Project and Arthur Spitzer, Legal Director of the ACLU of the Nation's Capital.

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

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