Tuesday, May 12, 2009

Transgender Title VII Claim Worth Half-a-million

The price tag for a recent U.S. District Court of the District of Columbia transgender Title VII case:
  • Back Pay and Benefits: $183,653
  • Nonpecuniary Losses: $300,000
  • Past Pecuniary Losses: $7,537.80
Total judgment: $491,190.80! Schroer v. Billington, 1:05-cv-01090-JR (D.D.C. April 28, 2009). So how did it get there, and since when did Title VII cover transgenders?

David Schroer interviewed for a job with the Library of Congress. They offered him the job. He accepted and then notified his future employer that he would be reporting for duty as Diane Schroer; Ms. Schroer is a transgender. The Library of Congress subsequently rescinded the offer kicking off Ms. Schroer's Title VII claim.

The finding of discrimination actually occurred in September of last year. Schroer v. Billington, 577 F.Supp. 2d 293 (D.D.C. 2008). The Court recognized that:
“[N]early all federal courts have said [transsexuality] is unprotected by Title VII. See Ulane v. Eastern Airlines, 742 F.2d 1081, 1085 (7th Cir.1984); Sommers v. Budget Mktg., Inc., 667 F.2d 748, 750 (8th Cir.1982); Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662-63 (9th Cir.1977); Doe v. U.S. Postal Service, 1985 U.S. Dist. LEXIS 18959, 1985 WL 9446, *2 (D.D.C.1985).”
The D.C. District Court declined to follow this precedent based on two different rationales.

First, the Court found that Schroer was entitled to judgment on the basis of "sex stereotyping":
“Ultimately, I do not think that it matters [whether the Library] perceived Schroer to be an insufficiently masculine man, an insufficiently feminine woman, or an inherently gender-nonconforming transsexual.”
Second, the Court held that discrimination against transgenders was "based on sex." The previous cases had held that "sex" under Title VII meant nothing more than "male and female." In this case, however, the Court reasoned:
“Imagine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer testifies that he harbors no bias toward either 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. Discrimination 'because of religion' easily encompasses discrimination because of a change of religion.”
Judgment for the Plaintiff.

So, are transgenders protected under Title VII? This latest decision comes from but one federal district court of many. Whether additional federal courts (district or appellate) will follow suit remains to be seen. Furthermore, wildcards abound. Will Congress legislate in this area? What about state legislation? The D.C. Human Rights Act, for example, already recognizes "gender identity". Ultimately, only time will tell.

UPDATE (6/28/2009) - Barney Frank introduces ENDA in the house - would essentially afford Title VII-like protection from discrimination based on "Gender Identity."