H. Mark Adams, Editor; Jennifer L. Anderson and Jennifer Faroldi Kogos, Associate Editors
Jones Walker

Vol. 17, No. 3
June 2008

GENDER IDENTITY ISSUES

Title VII protection for transsexuals? It could go either way

Joseph F. Lavigne

Most employers and HR professionals know that Title VII of the Civil Rights Act of 1964 protects employees against discrimination based on their sex, race, national origin, color, and religion. You also know that Title VII doesn't offer protection to all groups, though. For instance, it doesn't protect against discrimination against lawyers just because they're lawyers, or mean people just because they're mean, or young people just because they're young.

But what about groups that blur the line between a protected and an unprotected group? One such group that has perplexed the courts in considering whether Title VII affords them protection is transsexuals. Neither Title VII nor any other federal law protects an employee simply because of his transsexual status.

So if Title VII doesn't protect a particular group and if an employee who's a member of that group is an at-will employee (i.e., doesn't have a contract or guarantee of employment for any specific period of time), can you fire him just because he's transsexual? One federal court in Texas recently had a chance to address that precise issue, and the answer may surprise you.

Austin Powers: 'That's a man, baby!'

A medical clinic in Texas interviewed a person it thought was a woman for a scheduler position. The prospective employee filled out an application using both her legal name (Raul) and her known name (Izza). She was interviewed by two clinic managers; one of the managers admitted that she knew the applicant was a transsexual before and during the interview. After the interview, the applicant was offered the job pending a background check and drug test.

The applicant completed the background check and drug test paperwork using both names, and a few days later, the clinic's recruiter told her she passed the background check and drug test and formally offered her the position. Before she started, however, the clinic's HR director and recruiter withdrew the job offer because the background check revealed she is really a man. Ultimately, the clinic withdrew the job offer because the applicant "misrepresented" herself as a woman when she is really a man.

The applicant sued the clinic, claiming it discriminated against her because she is a transsexual and/or because she "failed to conform with traditional gender stereotypes." The clinic argued that her claims should be dismissed because the law doesn't protect transsexuals.

Six one way, half a dozen the other

The court first addressed whether transsexuals are protected under Title VII and quickly concluded that they aren't. Relying on a U.S. Supreme Court case, however, the court decided that the clinic would be liable under Title VII if the applicant could prove that she wasn't hired because her appearance and conduct didn't conform to traditional male stereotypes. In other words, if the clinic withdrew the offer because the applicant is male but appeared to be female and thus didn't fit a traditional male stereotype, it could face liability.

The Supreme Court previously concluded that an accounting firm violated Title VII by refusing to promote a woman who was "macho" and didn't dress or act like a woman. The Court wrote: "In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender." In deciding this case, the court focused on that language and decided there's no difference between the "macho" female accountant and the effeminate male transsexual applicant and it was up to a jury to decide whether the applicant wasn't hired because she didn't conform to traditional male characteristics.

The court found that there's no clear-cut rule for determining whether people who have characteristics or an appearance contrary to their actual gender are protected from discrimination, but employers that take adverse job actions against them based on gender stereotyping run afoul of Title VII. Lopez v. River Oaks Imaging & Diagnostic Group, Inc., 2008 U.S. Dist. LEXUS 27216 (S.D. Tex., 4/3/08).

Louis Armstrong: 'Potato, potahto . . . tomato, tomahto'

The court's decision reminds us of the old Louis Armstrong/Ella Fitzgerald song "Let's Call the Whole Thing Off." It's all semantics. An employer can fire an employee or choose not to hire an applicant because he's transsexual, but can't fire or refuse to hire him because he fails to conform to traditional sex-based stereotypes. Clearly, any male-born transsexual isn't going to conform to "traditional stereotypes" of men because he will dress, act, and live his life as a woman. So it could be argued that firing someone because of his transsexual status is by definition firing him for failing to adhere to gender-based stereotypes.

To make matters more confusing for employers, a Louisiana federal court addressed a similar case but rejected the argument that transsexuals are covered by Title VII when they're discriminated against for failing to conform with gender stereotypes. That case turned on some factual distinctions not present in the Texas case, however. What remains clear is that the U.S. Supreme Court, the highest court in the country and the ultimate authority on Title VII, has recognized protection for transsexuals and others who are discriminated against for not adhering to gender stereotypes.

So even though the waters may seem murky when it comes to the lower court decisions, you should follow the Supreme Court's lead to avoid legal problems in this area. And remember, firing or refusing to hire an employee based on personal traits or characteristics and without any legitimate business reason is never a good idea. It's likely to lead to hard feelings and litigation, and it isn't likely to be viewed by a jury as "fair."

You can catch up on the latest court cases involving transgender employees and Title VII in the subscribers' area of www.HRhero.com, the website for Louisiana Employment Law Letter. Just log in and use the HR Answer Engine to search for articles from our 50 Employment Law Letters. Need help? Call customer service at (800) 274-6774.

Copyright 2008 M. Lee Smith Publishers LLC

LOUISIANA EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Louisiana employment law. Questions about individual problems should be addressed to the employment law attorney of your choice. The State Bar of Louisiana does not designate attorneys as board certified in labor law.