Title VII Sex Discrimination Includes Gender Identity, According to Federal Court

Library of CongressThe terms “gender identity” and “gender expression,” in the context of New York City gender identity discrimination law, encompass a spectrum of factors related to gender and self-image. New York City has included these factors in its employment discrimination law since 2002. A federal court did not find in favor of a gender identity discrimination claim until 2008. The landmark decision in Schroer v. Billington, 577 F.Supp.2d 293 (D.D.C. 2008), is worth revisiting.

“Gender identity” refers to a person’s sense of their own gender, whether or not it matches their biological sex. “Gender expression” consists of how a person presents their gender, such as through their name, clothing, and behavior. A transgender person is someone who identifies as a different gender than the biological sex assigned to them at birth, and who might express themselves in accordance with that gender identity. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex and other factors. 42 U.S.C. § 2000e-2(a)(1). A U.S. Supreme Court ruling recognizing “sex stereotyping” as a form of sex discrimination under Title VII, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), has led some courts and administrative agencies to extend Title VII protections to gender identity and gender expression claims.

The plaintiff in Schroer was a transgender woman who transitioned to a female gender identity and expression as an adult. Prior to her transition, she served in the U.S. Armed Forces for 25 years, retiring in January 2004 with the rank of colonel. She held a very high-level security clearance at the time of her retirement, due to her anti-terrorism work with the U.S. Special Operations Command.

In August 2004, the plaintiff applied for a position with the Library of Congress that involved policy analysis on international terrorism, which required a security clearance. She was in the process of transitioning to a female gender identity at the time she applied for the position. In the early stages of the application process, she still used her birth name and maintained a stereotypically male gender expression. The plaintiff received a job offer from the defendant in December 2004. She asked to meet with the staff member who made the offer. At this meeting, the plaintiff informed her of her transgender status and her impending transition.

The defendant rescinded the job offer the next day, citing the difficulty of transferring the plaintiff’s security clearance to her female name. The staff member who met with the plaintiff reportedly also had doubts that someone with the plaintiff’s resume, which included service in the Special Forces, could be transgender. The plaintiff filed suit for sex discrimination and sex stereotyping under Title VII, alleging that the defendant’s concerns about security clearance, as well as the plaintiff’s “trustworthiness” and “credibility,” were merely a pretext.

After a bench trial in August 2008, the court ruled in the plaintiff’s favor. In ruling for the plaintiff on the sex discrimination claim, the court noted that the defendant “was enthusiastic about hiring [the plaintiff]—until she disclosed her transsexuality.” It ruled that “refus[ing] to hire [the plaintiff] after being advised that she planned to change her anatomical sex by undergoing sex reassignment surgery was literally discrimination because of sex.”

The gender identity discrimination attorneys at Phillips & Associates advocate for the rights of New York City workers in claims of gender identity discrimination and other unlawful employment practices. To schedule a free and confidential consultation with a member of our team, contact us today online or at (212) 248-7431.

More Blog Posts:

U.S. Justice Department Reverses Position on Gender Identity Discrimination Claims in New York and Nationwide, New York Employment Attorney Blog, December 20, 2017

Lawsuit Uses Theory of Employment Discrimination Based on Sex to Assert Claim for Gender Identity Discrimination, New York Employment Attorney Blog, October 13, 2017

New York Lawsuit Seeks Confirmation of Arbitration Award in Favor of Plaintiff Claiming Sex Stereotyping Discrimination, New York Employment Attorney Blog, October 2, 2017

Photo credit: Oliverchauncey (Own work) [CC BY-SA 4.0], via Wikimedia Commons.

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