Gender identity and gender expression are not specifically identified as protected categories in federal anti-discrimination law. New York City’s employment anti-discrimination statute includes both gender identity and gender expression, making it one of the most extensive such laws in the country. Despite a variety of recent setbacks at the federal level, caselaw has been gradually developing in a direction that offers some hope for the view that gender identity and gender expression are already protected by federal prohibitions on sex discrimination. A U.S. Supreme Court decision finding that Title VII of the Civil Rights Act of 1964 prohibits “sex stereotyping” could provide a basis for claims based on gender identity and expression. A New York gender discrimination case filed in a Manhattan federal court seeks confirmation of an arbitration award finding sex discrimination, based in part on sex stereotyping. Berger v. Kargo Global, Inc., No. 1:17-cv-04288, petition (S.D.N.Y., Jun. 8, 2017).Title VII states that it is “an unlawful employment practice” to discriminate against an employee or job applicant “because of…sex” or other factors. 42 U.S.C. § 2000e-2(a). The definition of “because of sex” has expanded over the years, through both legislation and court decisions, to include more specific acts like sexual harassment and pregnancy discrimination. See, e.g. id. at § 2000e(k). The Supreme Court has also held that sex discrimination under Title VII includes discrimination on the basis of stereotypes about how members of a particular gender should, or should not, behave. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
Justice Brennan, writing for the majority in Price Waterhouse, offered the example of “[a]n employer who objects to aggressiveness in women” but who “require[s] this trait” in employees. Id. at 251. This would put female employees “in an intolerable and impermissible Catch-22,” since they would risk losing their job no matter what they do. Id. Subsequent court decisions have indicated that unlawful sex stereotyping can involve both female employees deemed insufficiently feminine and male employees deemed insufficiently masculine. This analysis could also apply to transgender and gender-nonconforming employees, although no clear legal precedent currently exists.
The defendant in Berger, an advertising company, hired the plaintiff in August 2012 as Vice President of Sales for the Midwest region. According to the arbitrator’s decision, she excelled in this position, and she alleged that she was individually responsible for about half of the company’s increase in annual revenue from about $5 million to $135 million in four years. Despite this track record, the defendant terminated the plaintiff and, claiming that the termination was for cause, denied her benefits to which she would have been entitled under her employment contract.
The plaintiff submitted her claims to the American Arbitration Association, pursuant to an arbitration clause. The arbitrator issued a written decision in May 2017, finding in the plaintiff’s favor and awarding her $41 million in damages. The decision notes that the defendant’s “men’s culture” featured “profanity and inappropriately suggestive language,” as well as “potentially offensive language.” Berger, pet. exh. A-1 at 25. The defendant penalized the plaintiff, the arbitrator found, in part for engaging in similar behavior. This amounted to discrimination on the basis of sex stereotypes in violation of Title VII and other statutes.
The experienced and skilled gender discrimination lawyers at Phillips & Associates represent New York City job seekers, employees, and former employees, helping them assert claims for unlawful employment practices under local, state, and federal laws. Contact us online or at (212) 248-7431 today to schedule a free and confidential consultation to discuss your case.
More Blog Posts:
Understanding Recent Federal Actions on Gender Identity Discrimination in Employment, New York Employment Attorney Blog, August 22, 2017
U.S. Supreme Court Sends Gender Identity Discrimination Case Back to Appellate Court, New York Employment Attorney Blog, August 18, 2017
Appeal of Gender Identity Discrimination Lawsuit Takes an Unusual Turn, New York Employment Attorney Blog, August 4, 2017