Jottings By An Employer's Lawyer

Monday, April 27, 2009

Transgendered Workers in the Mainstream Press

Transgender Workplace Diversity has a post about a Fortune Magazine article about the most vexing workplace issue for employers of transgendered individuals, neatly encapsulated in the title, When a staffer switches genders. The story is about how the change happened in one small business. On Tony (formerly Ann) Ferraiolo's first day back,
Madison owner and president Steve Schickler walked in and sat down. "So you're a 'he' now, right?" Schickler asked. Ferraiolo nodded. "Good enough," Schickler said briskly. "I'll let the managers know."

For Schickler, 50, there was no question about what would happen next. Ferraiolo would continue to supervise more than half of the plant's 50 employees. Life would go on as before, with one small difference: Ferraiolo would no longer use the ladies' room.

Besides 'tolerance' the article has some other suggestions on managing the transition.

One interesting note in the article, 322 major companies have added gender identity to their diversity programs. One small mistake is the statement that the first court to recognize protection for transgendered employees under Title VII was a DC District Court case brought by an employee of the Library of Congress last year. In reality that honor goes to the 6th Circuit decision Smith v. City of Salem, almost five years ago, see Transsexual Discrimination - By Definition Sex Stereotyping and Actionable Under Title VII.


Actually, Smith is only the first US Circuit Court to acknowledge the rights of transgender plaintiffs under Title VII. The first federal opinion to do so was in 1983, by Judge Grady of the Northern District of Illinois, in Ulane v. Eastern Airlines, 581 F.Supp. 821 (N.D.Ill. 1983), but his carefully written opinion was reversed by the Seventh Circuit. The first standing opinion on title VII was in 2001, by Judge O'Malley of the Northern District of Ohio, in Doe v. United Financial Services, 2001 WL 34350174 (N.D.Ohio 2001). There were also decisions in favor of transgender plaintiffs in 2000 on statutes similar to Title VII.

In addition to the Sixth Circuit's decision in Smith v. Salem, the First and Ninth Circuits have given indications that they might rule similarly. District courts in the Second , Third , Fifth and Seventh Circuits have ruled in favor of transgender plaintiffs, as has the Federal District Court for the District of Columbia . These developments suggest that “sex” refers to more than the traditional binary distinction of sex that it once connoted. A review of the historical progression of the term “sex” demonstrates that it now includes elements of “gender”. I have an article coming out on this in the fall in the Temple Political and Civil Rights Law Review.

Here's the cases in favor of transgender plaintiffs currently. First Circuit: Rosa v. Park West Bank & Trust Co., 214 F.3d 213, 214-215 (1st Cir. 2000)(non-Title VII case), Second Circuit: Tronetti v. TLC HealthNet Lakeshore Hosp., 2003 WL 22757935 (W.D.N.Y. 2003), Third Circuit: Morales v. ATP Health & Beauty Care, Inc., 2008 WL 3845294 (D.Conn 2008); Mitchell v. Axcan Scandipharm, Inc., 2006 WL 456173 (W.D.Pa. 2006), lv. to app. den. 2006 WL 986971(W.D.Pa. 2006), Fifth Circuit: Lopez v. River Oaks Imaging & Diagnostic Group, Inc., 542 F.Supp.2d 653 (S.D.Tex.2008), Seventh Circuit: Creed v. Family Express Corp., 2007 WL 2265630 (N.D.Ind. 2007) (distinguishing Ulane), Ninth Circuit: Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000)(non-Title VII case), Kastl v. Maricopa County Community College Dist., 2004 WL 2008954 (D.Ariz. 2004); Fischer v. City of Portland, 2004 WL 2203276 (D.Or. 2004); Sturchio v. Ridge, 2005 WL 1502899 (E.D.Wash. 2005), DC Circuit: Schroer v. Billington, 577 F.Supp.2d 293 (D.D.C. 2008).
Also, although Smith involved a transsexual plaintiff, that plaintiff succeeded on a sex-stereotyping claim. And an employee's transsexuality, as the Smith court carefully observed, is irrelevant to a sex-stereotyping claim under Price Waterhouse.

The DC case (Schroer v. Billington) is the first case recognizing protection of a transgender employee in the "sex" class defined by Title VII - that hasn't been reversed or overturned yet.
Excellent list. Thanks for putting it together.

Thanks for your kind words. The article is coming out probably next month: TRANSGENDER IDENTITY, TEXTUALISM, AND THE SUPREME COURT: WHAT IS THE “PLAIN MEANING” OF “SEX” IN TITLE VII OF THE CIVIL RIGHTS ACT OF 1964?, 18 Temp. Pol. & Civ. Rts. L. Rev. 573 (2009)
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