Civil Rights

Taking Center Stage: The Workplace Rights of Trans Employees

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.

DOES FEDERAL LAW PROHIBIT SEXUAL ORIENTATION DISCRIMINATION? QUESTION MOVES CLOSER TO SUPREME COURT SHOWDOWN

In New York City, an employer who discriminates on the basis of sexual orientation violates the New York City Human Rights Law and is liable for damages.  Whether workers in other parts of the country enjoy this same protection is an issue that has divided the federal courts, and the question may be headed to the Supreme Court in the next year or two. In the Second Circuit, which comprises the federal courts in New York, Connecticut, and Vermont, claims for sexual orientation discrimination are often brought under the guise of “gender stereotyping” discrimination - that is, discrimination for not acting stereotypically male or female.  So, a gay man who is harassed for allegedly acting like “a submissive sissy” has a claim.  Unfortunately, this is often fitting a square peg in a round hole.  Discrimination claims that have nothing to do with stereotypical behavior, such as an employer asking a prospective employee about their sexual orientation, and refusing to hire on that basis, are not covered under the “gender stereotyping” dodge.

This week, the Seventh Circuit, based in Chicago, took the bold step of holding flat-out that Federal law in fact forbids sexual orientation discrimination.  Earlier this year, the Eleventh Circuit, based in Atlanta, held the opposite.  For its part, the Second Circuit this week suggested, without actually ruling, that it was time to recognize sexual orientation claims under the federal civil rights laws.  This issue is at a boil, and given the split in the circuit courts appears headed to the Supreme Court soon.

Beranbaum Menken Files Landmark Infertility Treatment Coverage Lawsuit on Behalf of New Jersey Women in Same-Sex Relationships

New Jersey law requires insurance companies to extend coverage for medically-indicated infertility treatment to women who qualify as infertile under what is referred to as the New Jersey Infertility Mandate. Despite the existence of myriad diagnostic tools and techniques by which a fertility specialist may diagnose infertility independent of heterosexual intercourse, a woman may only qualify as "infertile" under the Mandate after engaging in unprotected sex with a male partner for 1 or 2 years, depending on her age, and failing to conceive. As a result, New Jersey women with female partners are often forced to pay tens of thousands of dollars out of pocket to treat their infertility in the hope of one day becoming mothers. As reported by the New York Times, last week Beranbaum Menken filed Krupa et al. v. Badolato in the United States District Court for the District of New Jersey, aimed at forcing New Jersey to expand the protection of the Mandate to all women struggling with clinical infertility in the State. As stated in the Complaint:

This civil rights case is about family and the right of all New Jersey women who dream of becoming mothers to access the reproductive healthcare they need to realize that dream on an equal basis, regardless of their sexual orientation. “Rising from the most basic human needs,” parenthood “is essential to our most profound hopes and aspirations,” just like marriage. Obergefell v. Hodges, 135 S. Ct. 2584, 2594 (2015). In fact, as quoted by Justice Anthony Kennedy in Obergefell, Cicero wrote: “The first bond of society is marriage; next, children; and then the family.” Id. (citing De Officiis 57 (W. Miller transl. 1913)). Now, as presaged by Kennedy as he extended Cicero’s first bond of society to all American same-sex couples in Obergefell, that decision also compels states like New Jersey to treat heterosexual and same-sex couples equally with respect to Cicero’s remaining bonds of society, as well. In order to protect all women who wish to have children and start families on equal footing, as required by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, because, like marriage, procreation is a fundamental right protected by the Due Process Clause of the same Amendment, and because 42 U.S.C. § 1983 prohibits the deprivation of Plaintiffs’ federal constitutional and statutory rights, New Jersey must extend the protections of its infertility insurance mandate to women in same-sex relationships.

This case will surely explore the ramifications of the Supreme Court’s landmark decision in Obergefell.

Additional media coverage from ABC Channel 7 and CBS 2 News.

 

New York City Council strengthens Human Rights Law

The New York City Human Rights Law (NYCHRL) is already one of the strongest laws in the nation protecting worker rights. Yesterday the City Council passed amendments making it even more so. Prior amendments in 2005, known as the "Restoration Act." made it clear that the NYCHRL was to be interpreted liberally, and not limited by some courts' narrower interpretations of similar laws, such as Title VII, even though they may have similar language to the NYCHRL. One of yesterday's amendments adds language stating that "Exceptions to and exemptions from the provisions of this title shall be construed narrowly in order to maximize deterrence of discriminatory conduct." This would presumably apply to things like the "safe harbor" defense of Sec. 8-107(13)(d), which gives employers a defense to discriminatory conduct committed by an employee, if the employer took certain steps to prevent and promptly investigate complaints of such conduct.

Another amendment repealed the exceptions to the sexual orientation discrimination part of the law. Those exceptions, which applied to only the sexual orientation protections of the NYCHRL, had little practical effect, but were readily understood to be demeaning, particularly the section stating that protecting against sexual orientation discrimination did not "endorse any particular behavior or way of life."

Finally, the law was amended to provide for attorney's fees for individuals who choose to bring their cases in the New York City Commission on Human Rights. Previously, attorney's fees were only available in court actions.

The proposed amendments that effect employment law are attached.  The Mayor is expected to sign the legislation soon.   Amendments 2016 sexual orientation exceptions repeal

Amendments 2016 re construction

Amendments 2016 attorneys fees

BERANBAUM MENKEN FILES POLICE BRUTALITY LAWSUIT

Beranbaum Menken has filed a federal civil rights lawsuit in the Southern District of New York charging unreasonable force, false arrest, and malicious prosecution against the City of New York and individual police officers on behalf of Vito Amalfitano, who was senselessly and violently beaten by a group of NYPD officers on the Lower East side earlier this year. On January 10, 2015, Mr. Amalfitano, a 24 year-old father with no criminal record, was standing outside a building in his neighborhood when a group of men emerged from an unmarked van and ran at him.  Fearing for his safety, Mr. Amalfitano ran into the building.  The men chased him, caught up with him, and viciously beat him.  It was only after the men placed him in handcuffs that Mr. Amalfitano realized they were actually police officers.

Mr. Amalfitano was hospitalized with multiple facial fractures and a dislocated shoulder, among other injuries.  Despite having committed no crime, Mr. Amalfitano was arrested and charged with misdemeanor marijuana possession and resisting arrest.  All charges against him were dismissed within six weeks.

Beranbaum Menken’s investigation revealed that the supervising officer involved in the attack, then-Sergeant Eric Dym, has been sued in federal court at least four times since 2011 for excessive force and false arrest, including an attack on a 14 year-old boy.  Since Mr. Amalfitano’s arrest in January 2015, Mr. Dym has been promoted to lieutenant.

The case is Vito Amalfitano v. The City of New York et al, 15-CV-9100.

Click Here to Read the Complaint