sex discrimination

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.

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.

 

Beranbaum Menken Files Pregnancy Discrimination Lawsuit

Tiffany Kantrowitz, a Procter & Gamble ("P&G") employee, sold Dolce and Gabbana beauty products at a makeup counter at Saks 5th Avenue in Manhattan.  When she became pregnant in October 2014, she began to have brief spells of nausea and dizziness.  P&G repeatedly thwarted her requests to simply sit down for a few minutes while working while she waited for her symptoms to pass.  In the months after P&G became aware that she was pregnant, it became clear that P&G refused to accommodate her because it did not want a pregnant women selling its beauty products.  P&G eventually terminated her for storing "tester" items in a company-provided clear plastic bag--a practice that was commonplace and accepted among Ms. Kantrowitz's peers. On April 18, Beranbaum Menken filed a lawsuit on Ms. Kantrowitz's behalf in federal court, alleging discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Pregnancy Discrimination Act of 1978, 42 U.S.C. § 1981A, the American with Disabilities Act, 42 U.S.C. § 12101 et seq., as amended by the ADA Amendments Act of 2008, and the New York City Human Rights Law.

This case has been reported on by a number of media outlets.  A recent in-depth article discusses Ms. Kantrowitz's case in the context of the challenges working pregnant women face nationwide.

Beranbaum Menken LLP Representing Women in Two Equal Pay Act Cases

In two separate lawsuits filed in federal court, Beranbaum Menken LLP is representing women who were systematically underpaid and discriminated against because of their gender. In one case, Laurie Spina, M.D. v. Downtown Bronx Medical Assoc., P.C., Dr.  Spina, an anesthesiologist  working at Lincoln Hospital, sued her employer for paying her and other female anesthesiologists less than male anesthesiologists although they performed the same or similar work. Dr. Spina, as well as other female anesthesiologists, also experienced a sexually hostile workplace at the hospital. As an example, the department chair and at least one other male doctor routinely called them "bitches," and a number of the male anesthesiologists made a point of not referring to their female counterparts as "doctor," only as "Ma'am." The females were passed over for prestigious committees and as "team leaders" in favor of more junior, less experienced male doctors. When Dr. Spina complained about the discrimination, the department brought disciplinary charges against her for bogus reasons, and the chair pressured her to quit. The U.S. Equal Employment Opportunity Commission (EEOC) found that Dr. Spina was discriminated against because of her gender and subjected to a hostile environment. After we filed the lawsuit, the defendant, represented by the City of New York, brought a motion to dismiss the complaint. The U.S. District Court, however, denied the motion in its entirety and Dr. Spina is vigorously pursuing the litigation.

In the other case, Lorraine Porter-Bell v. Port Authority of NY & NJ, Ms. Porter-Bell worked for the Port Authority for 31 years. She retired in 2010 holding the position of Senior Project Manager in the Port Authority's Tunnels, Bridges and Terminals Department. Ms. Porter-Bell quit soon after learning the extent of the pay inequity to which the Port Authority was subjecting her: In 2010, the Port Authority employed 47 Senior Project Managers doing the same kind of work as Ms. Porter-Bell. Of the 47 Senior Project Managers, 39 were male. And of the 39 male Senior Project Managers, 38, or all but one, were paid more than Ms. Porter-Bell -- some of them as much as 30% more. The Port Authority, like the defendant in Dr. Spina's case, sought to have the case dismissed. But the firm was successful in opposing the motion to dismiss, and the litigation continues.