I recently received a call from a client who was concerned about an employee who showed up at a consumer’s house as Stephanie after eight months as Steven. Actually, those are not the names used, and the concern was not with the employee as much as the consumer’s possible reactions and confusion. So, how to respond? Was this employee protected under the anti-discrimination laws from any type of counseling or even termination?
The Answer: Depends on where Steven/Stephanie lives. The United States Court of Appeals for the Sixth Circuit, which has jurisdiction over Tennessee, Kentucky, Ohio and Michigan, has ruled in the recent past that a transsexual can state a claim under Title VII of the Civil Rights Act of 1964, as amended, for unlawful discrimination when an adverse job action is based upon his or her identification as a transsexual or due to his or her “gender non-conforming conduct.” Other courts have uniformly held that transsexuals are not protected under Title VII. That is, until the recent opinion in Schroer v. Billington, (D. D.C. 3/31/06) holding that a “highly qualified” transsexual applicant for a position with the Library of Congress may proceed on her claim for sex discrimination. Throughout the application process, Schroer had used her traditionally masculine name and dressed in traditionally masculine attire. Upon being offered the job, Schroer explained that she would be presenting herself at work as a woman pursuant to her physician’s care for gender dysphoria and to begin the initial phase of her sex-reassignment. She sued after the government withdrew its offer of the position due to her “circumstances” not being a “good fit.” The District of District of Columbia Court reaffirmed that allegations of sex stereotyping generally do not state a claim under Title VII, but reasoned that discrimination against a transsexual may nevertheless violate Title VII’s proscription of discrimination “because of…sex.”
The Schroer case moves away from the typically unsuccessful “gender stereotyping” analysis toward an analysis of discrimination against transsexuals “because of…sex.” The case will surely land before the United States Supreme Court if the government appeals, and we’ll keep you updated.
Practically Speaking: Currently there’s no protection for transsexuals under federal law in Texas, but do not forget to check local ordinances. Many cities in Texas have ordinances in place that prohibit discrimination on the basis of sexual orientation, gender identity, etc. If an employee complains of being treated differently because they do not act “male enough” or “female enough,” don’t discount the complaint. Rather, it is most cautious to treat the complaint as you would any other allegation of unlawful discrimination or harassment.
As for Stephanie…the client simply advised her that she needed some consistency in her appearance and attire, the consumer was consulted, and the employment relationship continued on as before without any further incident.
Many thanks to Michael Fox reporting this one on his blog at “Transsexuality – A Third Way” and his very informative seminar on the changing face of discrimination.