Monday, September 22, 2008

Judge: Federal Law Protects Transsexual Workers

In a landmark ruling, a federal court ruled last week that transgendered workers are protected by Title VII, the law prohibiting discrimination on the basis of sex, race, religion, national origin, and color. The judge took evidence in a bench trial in this "failure to hire" case in August.

Who is the applicant? She had received the highest interview score of 18 candidates for a position as a Specialist in Terrorism and International Crime. She sought a position with the Congressional Research Service in the Library of Congress. She had served in the military for 25-years leading counter-terrorist operations.

The selection committee had unanimously recommended that she be hired. She was told that they were excited she was joining them because she was "significantly better than the other candidates."

Then all hell broke loose. Diane had been born a man. She had interviewed as a man. They hired a man. When she disclosed that she would be transitioning from male to female gender, they freaked.

They had a series of meetings to decide what to do. Diane's experience hadn't changed. Since 1986 she had been involved in leading counter-terrorism and counter-insurgency operations all over the world. She served our country proudly, and was a 25-year military veteran.

But now they said she "wasn't a good fit" and withdrew the job offer the day after finding out about her transition. At the end of that meeting, they thanked her for her honesty. Then they offered the position to a man with a lower interview score, who accepted.

The Library of Congress asserted various defenses, saying they worried about her credibility, truthfulness, her ability to maintain contacts in the military (based on their assumptions about stereotypes against transgendered workers), possible distraction from her job during the transition, and security clearance.

The judge didn't buy any of it. These after-the fact justifications just didn't jibe with the evidence. They had a couple of damaging e-mails showing their true bias. The court also pointed out that their stated concern of truthfulness was contradicted by one of the last things they said when snatching her job: "Thank you for your honesty."

And by the way, the court followed well-established legal precedent in ruling their stated concern with the discrimination of others (possibly losing military contacts based on discriminatory stereotypes) was itself facially discriminatory. The law forbids employers from using other people's discrimination to effect their own discriminatory conduct. Employment agencies can't refuse to send a woman for an interview just because the potential employer asks them to discriminate unlawfully. In the same way, the Library of Congress can't refuse to employ a transgendered worker based on its fear of military stereotypes.

Discussing the legal theories of sex stereotyping, the Court put it this way:

"Ultimately I do not think it matters for purposes of Title VII liability whether the library withdrew its offer of employment because it perceived Schorer to be an insufficiently masculine man, and insufficiently feminine woman, or an inherently gender-nonconforming transsexual."

There was sexual stereotyping. The judge also concluded Schorer is entitled to judgment based on the language of the statute itself.

Title VII prohibits discrimination "because of sex." They wanted to hire a man. They thought they had hired a man. They changed their minds when the man was actually a woman. The court analogized it to a religious conversion. It would be illegal to discriminate against a Christian or a Jew, regardless of conversion. Here, the court found that the Library of Congress literally discriminated because of sex.

This decision does not apply outside of D.C., but other courts may follow this lead. It could also be appealed, but for now, the case goes on. The next step is a conference for the remedial phase. Will the judge require reinstatement? Award money?

Stay tuned. Read the well-reasoned opinion here: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DIANE J ...

Subscribe to Kimberlie Ryan's Working Wellness

No comments:

Post a Comment