Transgendered people are thought by many inhabit the outskirts of mainstream society. They are often unfairly marginalized, ridiculed, and even dehumanized. It is perhaps unsurprising, given this history, that transgendered people have not often found much refuge in the law. In the context of gender discrimination, for example, courts have traditionally refused to expand protection against sex discrimination under Title VII of the Civil Rights Act of 1964.
However, as the attorneys at Spitz, The Employee’s Law Firm know, Title VII prohibits any discrimination whatsoever “because of” sex. And, as the Supreme Court decided nearly 24 years ago in Price Waterhouse v. Hopkins, “because of” includes discrimination against someone because they aren’t fulfilling a gender role stereotype.
What is a “gender role”? A gender role is acting “man enough” or acting “like a lady.”
Enter the transsexual.
A transsexual is someone who identifies with a gender inconsistent or not culturally associated with their assigned sex, i.e. in which a person’s assigned sex at birth conflicts with their brain sex. Thus, it is easy to see how a transsexual may be thought by their employer to not be fulfilling their gender role.
Where this issue has come up in the Sixth Circuit, the Courts have generally found that transsexuals can assert a claim under Title VII. For example, in Smith v. City of Salem, the Sixth Circuit Court of Appeals was faced with the question of whether a firefighter could make out a claim under Title VII after he was terminated when he began to dress and act like a woman. The firefighter had worked for the City of Salem for seven years without incident as a male, but when he was diagnosed with Gender Identity Disorder, he began to dress and act more feminine at work. The firefighter’s co-workers began questioning him about his appearance and commenting that his appearance and mannerisms were not “masculine enough.”
As a result, the firefighter notified his immediate supervisor about his GID diagnosis and treatment. He also told him that his treatment would eventually include complete physical transformation from male to female. The firefighter had hoped that by telling his supervisor about his condition, the supervisor would take steps to stop the firefighter’s coworkers from harassing him. Instead, the supervisor called the City Law Director and the City’s executive board to devise a plan to discharge the firefighter from his employment.
The City decided to require the firefighter to undergo three separate psychological evaluations with physicians of the City’s choosing. The City hoped that the firefighter would either resign or refuse to comply. If the firefighter refused to go along, the City planned to terminate him for insubordination. When the firefighter found out about the City’s plan, he filed a complaint with the Equal Employment Opportunity Commission, and he retained an employment law attorney. Subsequently, the City suspended him, based on his alleged infraction of a City and/or Fire Department policy.
The firefighter then sued the City for sex discrimination and retaliation. The District Court dismissed his lawsuit, reasoning that Title VII did not apply to transsexuals. The firefighter appealed, and the Court of Appeals reversed, finding that pursuant to the Supreme Court’s reasoning in Hopkins, someone who is faced with discriminatory treatment because they fail to “conform to sex stereotypes concerning how a (man or woman) should look and behave” has been discriminated against “because of gender,” and can make out a claim for gender discrimination under Title VII.
The take away from this case is that gender discrimination is just that- discrimination because of gender. This is a broad definition. Any decision an employer makes which is influenced by the gender of an employee is potentially suspect. (there are exceptions in the law for, say female waitresses at a Hooters restaurant, or dancers at adult clubs- but that is the topic of a whole other blog entry)
If you feel that you are being discriminated based on your gender or sex, then call the right attorney. It is never appropriate to discriminate employees based on their gender.
Discrimination includes being harassed, fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, and denied wages. When you call the right attorney to schedule a free and confidential consultation at 866-797-6040, you will meet with an attorney from Spitz, The Employee’s Law Firm to discuss wrongful discrimination claims and help you determine the best way to pursue your gender/sex discrimination claims.
The materials available at this employment law website are for informational purposes only and not for the purpose of providing legal advice. Your best option is to contact an Ohio attorney to obtain advice with respect to gender discrimination questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.