Thursday, December 8, 2011

Transsexual Employee Protected by Constitution (and Title VII by Implication?) - COTW #70

In Glenn v. Brumby, the Eleventh Circuit analyzed whether the Equal Protection Clause of the Fourteenth Amendment of the Constitution prohibits public employer discrimination against transsexuals. But, it's also a big case for private employers.

The facts are pretty straightforward, which allows the Court to focus almost entirely on the transsexual discrimination issue:

[Defendant] testified at his deposition that he fired [Plaintiff] because he considered it "inappropriate" for her to appear at work dressed as a woman and that he found it "unsettling" and "unnatural" that [Plaintiff] would appear wearing women’s clothing. [Defendant] testified that his decision to dismiss [Plaintiff] was based on his perception of [Plaintiff] as "a man dressed as a woman and made up as a woman," and [Defendant] admitted that his decision to fire [Plaintiff] was based on "the sheer fact of the transition."
Are you there God? It's me Phil. Please send me a plaintiff terminated by a defendant who is this discriminatory and honest.

The Court did not address this as class-based discrimination against transsexuals though. Instead, the Court analyzed the equal protection claim as a gender-stereotyping, sex-based discrimination claim. Why does that matter? Two important reasons:
  1. Sex- and gender- based discrimination receive a heightened standard of review, "intermediate scrutiny" (I'm not aware of case law on this point, but I'm guessing transsexual-based discrimination would warrant only rational basis review); and

  2. If discrimination against transsexuals is sex-based discrimination... and Title VII prohibits sex-based discrimination by private employers... the unavoidable conclusion is that Title VII prohibits discrimination against transsexuals by private employers too.
The Court concluded that "a government agent violates the Equal Protection Clause’s prohibition of sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity."

The idea that discrimination against transsexuals is actually sex-based discrimination is hardly new. The Court provides a plethora of case law supporting the point. Although this was a public employer case under the Constitution, private employers should recognize the implications.

HT: Russ Runkel via Twitter:

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.