Charles S. Plumb, Editor
Doerner, Saunders, Daniel & Anderson, LLP

Vol. 15, No. 11
November 2007

GENDER-IDENTITY ISSUES

A boy named Sue: What's an Oklahoma employer to do?

Scott Hall

Discrimination based on a person's status as a transsexual isn't discrimination "because of sex" under Title VII of the Civil Rights Act of 1964, the Tenth U.S. Circuit Court of Appeals (which covers Oklahoma) recently ruled. In the same case, the court implied that it may recognize a Title VII claim for discrimination based on an employee's failure to conform to stereotypical gender norms.

Actually, it's a boy named Krystal

Krystal Etsitty believes she was born with the wrong anatomical organs. Etsitty is a male but was diagnosed with adult gender identity disorder. Etsitty identifies herself as a woman now, living and dressing like one. She was even taking prescribed female hormones for an upcoming sexual reassignment surgery.

Before the surgery, Etsitty was hired by the Utah Transit Authority (UTA) as a substitute bus driver. During her training period, Etsitty represented herself as a man. Later, she informed her supervisor that she was going to have sexual reassignment surgery. The supervisor was supportive. Eventually, Etsitty began wearing makeup, jewelry, and acrylic nails while driving her bus route.

When "nature calls" during a bus route, UTA drivers typically stop and use a public restroom. Even though Etsitty was still anatomically male, she began using female restrooms. The transit authority's operations manager became concerned over Etsitty's choice of restroom, placing her on administrative leave before terminating her.

The operations manager blamed the termination on the potential liability arising from Etsitty's restroom usage. Etsitty never received any complaints about her performance, appearance, or restroom usage while employed by the UTA.

Etsitty sued the UTA and her former supervisor for gender discrimination under Title VII. She claimed that she was fired because she was transsexual and failed to conform to her employer's expectations of stereotypical male behavior.

Tenth Circuit suggests possible claim

Title VII protects against gender discrimination ― not sexual orientation discrimination or discrimination based on being a transsexual. The court noted that another circuit, the Sixth Circuit (which isn't binding on Oklahoma), has extended Title VII protection to transsexuals claiming they were discriminated against for "failing to conform to social stereotypes" about how a person of their gender should act and appear. A number of courts have used that theory to recognize a Title VII discrimination claim based on an employee's failure to conform to stereotypical gender norms.

The Tenth Circuit didn't reach the same conclusion because it wasn't necessary for this case. The court, however, did imply that it may recognize such a claim in future lawsuits. Etsitty v. Utah Transit Authority, Case No. 05-4193 (10th Cir., 9/20/07).

What this means to you

Title VII prohibits only gender discrimination. It doesn't extend to discrimination based on sexual orientation or one's status as a transsexual. A transsexual person such as Etsitty may have a Title VII claim, however, if she can present evidence that she was discriminated against for failing to conform to male social stereotypes. In fact, if the UTA hadn't been able to show a legitimate reason for firing Etsitty (i.e., the potential liability of having an employee with male genitalia using the women's bathroom), her Title VII claim might have survived if she could show that she was discriminated against for not conforming to those stereotypes.

As an employer, it's important for you to be tolerant of others. If you terminate a transsexual employee for proper cause, a Title VII discrimination claim may follow. The individual may allege that she was fired for failing to conform to a gender stereotype. If you have to terminate someone who may have such a claim, document your proper reason. In Etsitty's case, the UTA's properly documented reason for termination was its saving grace.

Scott Hall is an attorney with Doerner, Saunders, Daniel & Anderson, LLP, in Tulsa. He can be reached at mhall@dsda.com.

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Copyright 2007 M. Lee Smith Publishers LLC

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