In recent years, transgender people and their legal rights have finally begun to take their rightful place in the public consciousness after being vilified, ignored, and erased for far too long. Unlike traditional gender- or race-based prejudice, many Americans still feel comfortable holding consciously transphobic perspectives. Just yesterday, for example, a lawyer representing a transgender man in his employment discrimination suit against the U.S. Department of Veterans Affairs called for a Texas federal judge to recuse himself on the basis of multiple comments made during a case management conference that allegedly demonstrated bias against trans folks.
The prevalence of employment discrimination and harassment against trans people is shocking. Among respondents to the National Center for Transgender Equality and the National Gay and Lesbian Task Force's 2009 National Transgender Discrimination Survey, 13% were unemployed, nearly double the national average at the time of the survey (the statistic was even more acute for respondents who were Black (26%), Latino (18%) and Multiracial (17%)). 47% of survey respondents had experienced an adverse job action (i.e. did not get a job, were denied a promotion, or were fired) because they were trans. 26% had specifically lost their job due to their gender identity or expression. Finally, a full 97% of respondents had experienced discriminatory harassment on the job. The bias underlying these numbers is a function of ignorance, and only through widespread advocacy efforts on behalf of transgender rights can we effectively combat it.
Luckily, in the context of employment law, attorneys have some surprisingly powerful tools at our disposal. Following the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which identified sex stereotyping as a form of sex discrimination, many courts have recognized that when trans employees experience discrimination based on an employer’s perception that they do not comport with stereotyped notions of what it means to be a man or a woman, they may bring sex discrimination claims under Title VII of the Civil Rights Act of 1964 in response.
For example, in Smith v. City of Salem, the court found that the plaintiff could bring a Title VII sex stereotyping claim when, after announcing she would be transitioning, she faced harassment from co-workers because they felt her “appearance and mannerisms were not ‘masculine enough.’” 378 F.3d 566, 568 (6th Cir. 2004). Following this rationale, federal courts around the country have recognized that trans people can bring viable sex discrimination claims under Title VII or other federal statutes barring sex discrimination. See, e.g., Tronetti v. TLC HealthNet Lakeshore Hosp., No. 03-CV-0375E(SC), 2003 WL 22757935 (W.D.N.Y. Sept. 26, 2003). In addition to the sex stereotyping theory recognized in Smith, some courts have also recognized that discrimination based on a person’s transgender status is per se sex discrimination, as the discrimination stems from the trans person’s change of sex. See, e.g., Fabian v. Hosp. of Cent. Connecticut, No. 3:12-CV-1154 (SRU), 2016 WL 1089178, at *12 (D. Conn. Mar. 18, 2016).
New York State and City law also provide important tools in vindicating the rights of trans employees.
The New York State Division of Human Rights enacted regulations effective in January of 2016 interpreting the New York State Human Rights Law ("NYSHRL") to prohibit discrimination on the basis of gender identity and transgender status. See 9 N.Y.C.R.R. § 466.13(c). These new regulations also establish that harassment based on gender identity or transgender status is sexual harassment under the NYSHRL, 9 N.Y.C.R.R. § 466.13(c)(3), that the definition of “disability” under the NYSHRL includes gender dysphoria, a psychological condition characterized by distress because an individual’s gender at birth is contrary to the one with which they identify, that an employer may not deny a reasonable workplace accommodation to an employee with gender dysphoria, 9 N.Y.C.R.R. § 466.13(d)(4), and that harassment on the basis of gender dysphoria is harassment on the basis of disability, 9 N.Y.C.R.R. § 466.13(d)(5).
On the city side, the Transgender Rights Act, enacted in 2002, amended the New York City Human Rights Law ("NYCHRL") to prohibit discrimination on the basis of gender identity, gender expression, and transgender status. See N.Y.C. Local Law No. 3 (2002). In the New York City Human Rights Commission's 2015 enforcement guidance on trans discrimination, the Commission clarified that gender identity-based discrimination under the NYCHRL extends beyond traditional notions of discrimination, harassment, and retaliation to include instructions for employers on the use of employee pronouns and names, dress codes, and how to deal appropriately with requests for accommodation.
The strength and effectiveness of these protections only grows the more trans employees and their attorneys pursue the vindication of trans rights in court. As such, Beranbaum Menken is committed to being part of this effort by providing compassionate, effective, trans-literate representation to trans employees facing workplace discrimination, retaliation, and harassment.