Ann Hopkins

Ann Hopkins is who everyone should thank for the ability to sue for employment discrimination based on sex stereotypes.

Price Waterhouse oral argument.

Price Waterhouse v. Hopkins __ 490 U.S. 228 (1989) __ Justia U.S.

Clinton Rusthoven filed two separate pro se employment discrimination cases in Montana.  In the complaints, he raises a variety of allegations, including discrimination under Title VII. The court recently dismissed one of his lawsuits. In dismissing his lawsuit against Victor School District #7, the court noted that Rusthoven asserted that he is “bi-gender.”  However, Rusthoven alleged “no facts, including in his objections, which support a plausible claim that he experienced a non-trivial adverse employment action, or that (the) Defendant discriminated against him because of his gender identity.” In his objection to the school district’s motion to dismiss, Rusthoven “provided unauthenticated photos ostensibly supporting this claim.” The photos show him wearing a dress.

The fact that a Man wears a dress is not sufficient to assert a claim for employment discrimination.

Rusthoven v. Victor Sch. Dist. #7

RUSTHOVEN School complaint

RUSTHOVEN

Rusthoven v. Youth Homes, Inc. Docket

Rusthoven v. Victor School District #7 Docket

Ashley Yang is a transgender woman fired from a job at the Transportation Security Administration because of gender identity discrimination. Yang objected to being told to pat down male passengers. We understand Yang’s objections, as they are similar to those of Women TSA agents asked to pat down Transwomen, or Women being subjected to pat down searches by Transwomen.

Ashley Yang, transgendered former TSA agent, was forced to pat down male passengers_ suit – NY Daily News.

Donovan Gianfredi, of East Haven, Connecticut, was fired from his job as a medical assistant in 2011. Gianfredi, who has transitioned from a woman to a man, said he wanted to take time off for his gender-reassignment surgery. He said his request was denied while fellow employees were granted time off for medical reasons. The Connecticut Commission on Human Rights and Opportunities denied Gianfredi’s claim of discrimination because investigator Kathleen Bowden Garassino found there was “no reasonable cause for believing that a discriminatory practice has been or is being committed as alleged.”

Gianfredi’s attorney, Patricia Confrancesco, appealed the decision in September. In her request for reconsideration, she stated that her client’s former employers violated the Family Medical Leave Act by not allowing him to take time off to move forward with his sex transition.

The case is pending.

Transgender Worker, Tenant Bring Discrimination Lawsuits _ Connecticut Law Tribune.

Loretta Eure is a woman who apparently identifies as a man. In December 2010, Eure began working as a truck-driving instructor at The Sage Corporation’s San Antonio location. Eure reported to San Antonio School Director Margie Brandon (“Brandon”), Western Regional Director Barbara Blake (“Blake”), and President Gregg Aversa (“Aversa”) as her supervisors. At the beginning of her employment, Eure claimed that she received insufficient training because her trainer, Noel Smith (“Smith”) only permitted her to shadow him for twenty-four hours.

Eure also claimed that Smith subjected her to “sarcasm and innuendos,” in which Smith complained about having to instruct Eure and expressed his desire to work in Brandon’s supervisory role. Eure reported these comments to her supervisor, Brandon. In March 2011, Carmela Campanian (“Campanian”), a National Project Director for Sage, arrived at the San Antonio campus to conduct specialized training. Brandon alleged that, early that day, Campanian saw Eure with a student and asked Brandon, “What is that and who hired that?” Brandon alleged that Campanian then said, “Please don’t tell me that is a Sage instructor” and informed Brandon that Sage did not hire “cross genders.” After Brandon told Campanian that she hired Eure because Eure was qualified and filled the school’s need for a bilingual instructor, Brandon alleged that Campanian told her, “We will deal with you seriously for hiring that.”  Brandon further alleged that Campanian indicated she would discuss the matter with Sage’s President, Gregg Aversa (“Aversa”) and discuss appropriate punishment for Brandon.

On that day or the following day, Brandon alleged that she reviewed the instructor schedule that Campanian had reworked. Brandon alleged that when she told Campanian that Eure had been omitted from the schedule, Campanian indicated that the omission was purposeful and asked Brandon if she understood the severity of the consequences for hiring a transgender instructor. That same day, Campanian informed Eure that Eure could not use a particular truck with her student and Eure proceeded with the student’s lesson in a different truck. After Eure returned from the lesson, Brandon’s assistant, Maria Solis (“Solis”), informed Eure that Campanian had called her to the office. When Eure met with Campanian, Eure alleged that Campanian said “I’ve never had to deal with something like this.” In response, Eure asked, “What do you mean? Because I’m gay?” Eure alleged that Campanian paused and then said that Eure was insubordinate. Eure alleged that Campanian then received a phone call and dismissed Eure from her office. Eure immediately reported this incident to Brandon.  Later that evening, Eure called Brandon again to discuss the incident. At the same time, she attempted to report the incident to Aversa, but she obtained Aversa’s contact information through a search engine and mistakenly emailed the incorrect Aversa. When the incorrect recipient informed her of the mistake, she redirected the complaint to Aversa on March 31, 2011.

Because Aversa was out of town, Blake responded to the complaint on behalf of Aversa on April 1, 2011. Blake asked that Eure call Sage’s Vice President and General Counsel Chris Thropp sometime that day to discuss the matter over the phone. On April 4, 2011, Eure submitted a charge of discrimination with the EEOC, which alleged discrimination based on sex against Sage. That same day, Aversa returned from his trip and spoke with Eure. Aversa asked Eure to consider returning to work and assured Eure that he planned to investigate the incident further. On April 5, 2011, Aversa replied to Eure’s email, expressing his apologies for the events that unfolded, his intention to address the matter with Campanian, and his support for Eure’s return to work. He also stated that “[t]he reports from [Brandon] on your teaching skills and your overall performance were very positive and encouraging to Barb Blake and to me.” On April 6, 2011, Eure replied that she would need additional information about the hours that she would be able to work and whether Brandon and Solis would be returning before she agreed to return to work. Eure never returned to work and sued for sex discrimination under Title VII. Sage moved for summary judgment.

The U.S. District Court for the Western District of Texas granted the motion, holding that:

…although Price Waterhouse provides a vehicle for transgender persons to seek recovery under Title VII, neither the Supreme Court nor the Fifth Circuit have held that discrimination based on transgender status is per se gender stereotyping actionable under Title VII. Without any briefing from the parties on the issue, this Court declines to hold otherwise. Because Eure has failed to present evidence showing that the discrimination was motivated by her failure to act as a stereotypical woman would,^[8] Eure has not presented a cognizable gender stereotyping claim and cannot succeed in showing that the discrimination or hostile work environment claim that she presents is “because of sex,” as Title VII requires.

The Texas federal court does not mention the EEOC’s position in the Macy case, which makes very clear that transgender persons are covered by Title VII and Price Waterhouse. We note that Eure’s attorney did not seem to raise the Macy decision in his opposition to the motion for summary judgment.

This is a bad decision and we hope Eure appeals.

Eure v. THE SAGE CORPORATION, Dist

Eure v. THE SAGE CORPORATION Docket

In September 2005, Izza Lopez, a 26-year-old transgender woman, accepted a job as a scheduler with River Oaks Imaging and Diagnostic in Houston. After resigning from her position with her then-current employer,
Lopez received a call from River Oaks rescinding the job offer because of her “misrepresentation” of herself as a woman. Lopez was unable to get her previous job back and was without employment for several months and filed suit. A federal court held that Lopez’s “transsexuality is not a bar to her sex stereotyping claim. Title VII is violated when an employer discriminates against any employee, transsexual or not, because he or she has failed to act or appear sufficiently masculine or feminine enough for an employer.”

Court Recognizes Viability of Lambda Legal___s Sex Discrimination Claim on Behalf of Transgender Woman; Case Proceeds to Trial _ Lambda Legal DC CM_ECF LIVE- US District Court-Texas Southern lopez_tx_20080403_memo-and-order-us-district-court-southern-district-tx-houston-division

Sherri Parks was a lesbian plumber who worked for the Port of Oakland who lost a case for employment discrimination claiming she was discriminated against based on sex stereotypes. It is quite an interesting read.

Parks v. Port of Oakland.

In a long-overdue move, U.S. Attorney General issued a memorandum stating that the U.S. Department of Justice Department will no longer assert that Title VII’s prohibition against discrimination based on sex does not encompass gender identity per se (including transgender discrimination). Title VII is the federal law that bans employment discrimination. Title VII applies to transgender and gender nonconforming people because of the ruling in Price Waterhouse.

Many gay activists have said for years that Title VII applies to transgender people. We hope that GLBT Organizations will stop trying to advance “transgender inclusive” legislation in Congress to ban discrimination based on gender identity, because it is not, in fact, needed and because GLBT Organizations do a terrible job of describing the legislation. What is needed, however, is legislation to ban discrimination based on sexual orientation.

Attorney General Holder Directs Department to Include Gender Identity Under Sex Discrimination Employment Claims _ OPA _ Department of Justice

Leyth O. Jamal, a transgender woman living in Texas, filed a federal lawsuit in the fall against her former employer, Saks Fifth Avenue, alleging that she was exposed to a hostile working environment at the luxury department store’s Houston-area location. Saks has filed a Motion to Dismiss. Transgender people are able to sue for employment discrimination now under Title VII; in contrast, gay people cannot sue under Title VII. Jamal is represented by Jillian Weiss.

We support lawsuits by transgender people under Title VII.

Texas Trans Woman Sues Saks Fifth Avenue Over Alleged Harassment _ Advocate

DC CM_ECF LIVE- US District Court-Texas Southern

Jamal v. Saks

Motion to Dismiss

Carla Cruzan, a female teacher at Minneapolis Special School District, # 1, alleged that her school district discriminated against her on the basis of her sex and her religion by allowing a transgender coworker to use the women’s faculty restroom. Cruzan lost.

Cruzan v. Special School Dist,# 1

Xyaira Chanel Lewis is a transgender woman and a certified nursing assistant who sued High Point Regional Health System for employment discrimination under Title VII based on transgender status. A federal court in North Carolina recently declined to dismiss Lewis’ lawsuit. The Equal Employment Opportunity Commission wrote an amicus brief in support of Lewis.

We support Lewis’ lawsuit and hope the lawsuit is successful.

Lewis v. Highpoint Reg’l Health Sys.

Docket.

In an unprecedented move. New York Attorney General  Eric T. Schneiderman sent a letter to Saks Fifth Avenue, demanding that Saks provide documents on all existing anti-discrimination policies that apply to Saks employees in New York. The demand also asked Saks to detail how it allows employees to file harassment or discrimination complaints, and to outline training materials it uses to educate its employees on workplace harassment. Federal and New York law protects employees from discrimination based on sex stereotypes (which captures gender identity), while New York City law explicitly bans discrimination based on both sex and gender identity.

Schneiderman did this in connection with a Texas lawsuit filed by a transgender person against Saks. I cannot recall a similar case where an attorney general in another state demanded such access to human resources documents without a complaint of discrimination being file with the attorney general. He did this, no doubt, to bolster his chances of becoming New York’s next governor in 2018. Further, Schneiderman hates Cuomo and no doubt would enjoy embarrassing Cuomo over Cuomo’s inability to get a gender identity law passed in New Your State.

Saks Treatment of Transgender Employees Is Investigated – NYTimes

Noel Cummings, a transwoman, alleged in a lawsuit that her employer, the Greater Cleveland Regional Transit Authority (“RTA”), discriminated and retaliated against her based on her race, gender, and gender identity. Cummings has worked at RTA for 27 years; her current title is Manager of Service Quality. Cummings is African American and was born male in the state of Alabama. In 2001, Cummings underwent a surgical procedure anatomically changing her sex to female. Cummings claims that since 2009, RTA denied her equal pay and a series of promotions because of her race, gender, and gender identity.

One of Cummings’ claims is that RTA violated Ohio public policy when it failed to promote her because of her gender identity. Ohio recognizes a cause of action for wrongful termination in violation of public policy, a so-called Greeley claim. The court found, however, that Ohio does not recognize a claim for failure to promote in violation of public policy. Cummings also argued that Cleveland Codified Ordinance 667.05 provided a clear public policy against discrimination based on gender identity. The court found that a Greeley claim only exists where “an employee is discharged or disciplined in contravention of a clear public policy articulated in the Ohio or United States Constitution, federal or state statutes, administrative rules and regulations, or common law. . . .” Because city ordinances are not part of this list, they not are potential sources of public policy that can support a wrongful discharge claim, the court concluded. The court allowed other claims to proceed, including a Equal Pay Act claim and a state law sex discrimination claim.

We are not aware of other cases involving a transgender plaintiff that have asserted a state Equal Pay Act claim. This is an interesting approach to address irrational discrimination against transgender people. Gender Identity Watch supports the right of all people to work in an environment free from irrational discrimination. Transgender people have every right to work in an environment where they are afforded equality opportunities, including pay raises based on performance, merit, or other non-discriminatory factors.

Cummings v. Greater Cleveland Regional Transit Authority et al Opinion

Cummings v. Greater Cleveland Regional Transit Authority et al

Keira James is a Man who identifies as a Woman who claims he was fired from his job because he used the toilets designated for Women.

Transgender woman ‘sacked after being forced to continue using men’s toilets’ – Telegraph

The Massachusetts Commission Against Discrimination ruled in favor of a transgender woman who claimed she was fired from a Framingham fitness studio five years ago because of her gender status. The commission ordered Naz Fitness Group to compensate Jackie Ravesi back pay losses of $154,850 on top of $25,000 in emotional distress damages, according to a copy of the January decision.

We support this decision, as no one should lose employment because they are transgender.

State sides with transgendered woman’s dismissal claim in Framingham – News – The Framingham Tab – Framingham, MA

A former police officer is suing the city, the mayor, the police chief, two lieutenants and another former officer over harassment and discrimination. Francesca Quaranta filed a civil complaint in Hartford Superior Court on Dec. 10, alleging that she endured sexist or otherwise offensive comments from lieutenants Jaime Del Mauro and Paul Maturo and former Officer Christopher Lavoie, that the Middletown Police Department management singled her out for discriminatory discipline and that the city capriciously and improperly terminated her employment.

Quaranta already lost an administrative complaint asserting discrimination.

Terry Sanders brought an employment action alleging that her former employer, the May Department Stores Company (“May”), violated the Family and Medical Leave Act (“FMLA”) when it did not give her leave while she recovered from sex reassignment surgery. Sanders lost.

Sanders v. May Dept. Stores Co.

On December 6, 2011, the U.S. Court of Appeals for the 11th Circuit decided Glenn v. Brumby. In Glenn, Vandy Glenn, a male-to-female transsexual, prevailed in her unlawful termination lawsuit against her boss at the Georgia General Assembly’s Office of Legislative Counsel. Glenn claimed that Brumby discriminated against her based on sex in violation of the Equal Protection Clause of the U.S. Constitution. There is no dispute that Brumby fired Glenn because of her transition. We support this decision.

The U.S. Justice Department announced that it filed a lawsuit against Southeastern Oklahoma State University (“Southeastern”) and the Regional University System of Oklahoma for violating Title VII of the Civil Rights Act of 1964 by discriminating against a transgender employee on the basis of sex and retaliating against the employee when he complained about the discrimination.  According to the lawsuit, filed in federal district court in Oklahoma City, Robert Tudor began working for Southeastern as an Assistant Professor in 2004.  At the time of his hire, Tudor presented as a man.  In 2007, Tudor, consistent with his gender identity, began to present as a woman, Rachel, at work. Throughout his employment, Tudor performed his job well, and in 2009, he applied for a promotion to the tenured position of Associate Professor. Southeastern’s administration denied his application, overruling the recommendations of his department chair and other tenured faculty from his department.  The complaint alleges that Southeastern discriminated against Tudor when it denied his application because of his gender identity, gender transition and non-conformance with gender stereotypes.

Trans professor denied tenure at SOSU

Justice Department Files Lawsuit Alleging that Southeastern Oklahoma State University Discriminated Against Transgender Woman _ OPA _ Department of Justice

DOJ Press Release

Seamus Johnson lost her lawsuit against Pitt yesterday, with the federal court dismissing her lawsuit with prejudice. The federal court noted that the lawsuit presented “one central question: whether a university, receiving federal funds, engages in unlawful discrimination, in violation of the United States Constitution and federal and state statutes, when it prohibits a transgender male student from using sex-segregated restrooms and locker rooms designated for men on a university campus. The simple answer is no.”

The court concluded that Pitt’s policy of segregating its bathroom and locker room facilities on the basis of birth sex is “substantially related to a sufficiently important government interest. Specifically, Pitt’s policy is based on the need to ensure the privacy of its students to disrobe and shower outside of the presence of members of the opposite sex, a justification that has been repeatedly upheld by courts.

The court noted that the U.S. Supreme Court has acknowledged that not all classifications based on sex are constitutionally impermissible: “The heightened review standard our precedent establishes does not make sex a proscribed classification . . . Physical difference between men and women, however, are enduring: ‘[t]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both.’” As such, the federal court concluded that “separating students by sex based on biological considerations—which involves the physical differences between men and women—for restroom and locker room use simply does not violate the Equal Protection Clause.”

The court also held that the University’s policy of requiring students to use sex-segregated bathroom and locker room facilities based on students’ birth sex, rather than their gender identity, does not violate Title IX’s prohibition of sex discrimination. To establish a prima facie case of discrimination under Title IX, a plaintiff must allege (1) that he was subjected to discrimination in an educational program; (2) that the program receives federal assistance; and (3) that the discrimination was on the basis of sex. The term “on the basis of sex” in Title IX means nothing more than male and female, under the traditional binary conception of sex consistent with one’s birth or biological sex, the court noted. The court found it convincing that the regulations implementing Title IX explicitly permit educational institutions subject to Title IX to provide separate toilet, locker room, and shower facilities on the basis of sex.

The court also rejected her sex stereotyping claim. Johnson  has not alleged that Pitt discriminated against her because of the way she looked, acted, or spoke. Instead, she alleges only that the University refused to permit her to use the bathrooms and locker rooms consistent with her gender identity rather than her birth sex. Such an allegation is insufficient to state a claim for discrimination under a sex stereotyping theory, the court concluded.

Johnston v. Univ. of Pittsburgh of the Commonwealth Sys. of Higher Educ. Docket

Johnston v. Univ. of Pittsburgh of the Commonwealth Sys. of Higher Educ.