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Birmingham Bar Association Bulletin Fall 2015

II. Federal Law Now Protects Transgender Employees, And The Eleventh Circuit Court of Appeals Led the Way If you are an employer with 15 or more employees in this or the previous year, you must not discriminate against a transgender employee or applicant as to any recognized term or condition of employment, including hiring, promotion, termination, discipline, pay, etc. In 2012, the Equal Employment Opportunity Commission (“EEOC”) held that discrimination against a person because he or she is transgender is discrimination “because of sex and therefore is prohibited under Title VII of the Civil Rights Act of 1964.” 8 In sum, making employment decisions because an employee or applicant does not fit a gender stereotype is a form of sex or gender discrimination. In the final three quarters of the year 2013, the EEOC received 147 charges of discrimination and/or harassment based on gender identity/transgender status. In 2014, that number grew to 202 charges, and as of March 31, 2015, 112 charges have already been filed based on transgender status.9 In 2014, of the 9.2% transgender cases settled by the EEOC, the settlements totaled $530,995, which did not include the other 90.8 percent of cases that went to court or settled privately between the parties.10 Discrimination based on transgender status applies to both public and private sector employees.11 Even before the EEOC recognized transgender status as a protected category, the Eleventh Circuit Court of Appeals played an important role in recognizing the rights of transgender employees before they were officially protected by the EEOC and Title VII of the Civil Rights Act. In the case of Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011), arising under Section 1983, the defendant appealed from an adverse summary judgment in favor of the plaintiff finding that Brumby had violated the Equal Protection clause based on sex discrimination. At the time, Glenn was working as an editor for the Georgia General Assembly Office of Legislative Counsel (“OLC”). Defendant Brumby was the head of the OLC and was responsible for personnel decisions. Glenn, a male to female transgender individual was diagnosed with Gender Identity Disorder (“GID”) in 2005, and began transitioning from male to female under the supervision of health care providers. Part of the treatment required Glenn to live as a woman outside of the workplace as a prerequisite to surgery. 663 F.3d at 1313. “In. . . 2007, Glenn informed . . . her immediate supervisor that she was ready to proceed with gender transition and would begin coming to work as a woman and was also changing her legal name. The supervisor informed Brumby, who . . . terminated Glenn because ‘Glenn’s intended gender transition was inappropriate, that it would be disruptive, that some people would view it as a moral issue and that it would make Glenn’s coworkers uncomfortable.’” Id. In affirming summary judgment for the plaintiff, the appellate court stated, “The question here is whether discriminating against someone on the basis of his Employment Law or her gender non-conformity constitutes sex-based discrimination under the Equal Protection Clause. For the reasons discussed below, we hold that it does.” Id. at 1316. A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. “The very acts that define transgender people as transgender are those that contradict stereotypes of gender appropriate appearance and behavior.” Ilona M. Turner, Sex Stereotyping Per Se: Transgender Employer and Title II, 95 Cal. L. Rev. 51, 563 (2007). . . There is thus a congruence between discriminating against transgender and transsexual individuals and discrimination on the basis of gender-based behavioral norms. Id. (emphasis added.) In examining Glenn’s termination, the Court further stated, “In this case, Brumby testified at his deposition that he fired Glenn because he considered it ‘inappropriate’ for her to appear at work dressed as a woman and that he found it ‘unsettling’ and ‘unnatural’’ that Glenn would appear wearing women’s clothing. Brumby testified that his decision to dismiss Glenn was based on his perception of Glenn as a ‘man dressed as a woman and made up as a woman’ and Brumby admitted that his decision to fire Glenn was based on “the sheer fact of the transition.” 663 F.3d at 1320-1321. The Court held that “Brumby’s testimony provides ample direct evidence to support the district court’s conclusion that Brumby acted on the basis of Glenn’s gender non-conformity. If this were a title VII case, the analysis would end here.” 663 at 1321. (emphasis added.) In Macy v. Eric Holder, Department of Justice (Bureau of Alcohol, Tobacco, Firearms and Explosives Agency), Agency No. ATF- 2011-00751, Appeal No. 0120120821 Birmingham Bar Bulletin/ Fall 2015 21


Birmingham Bar Association Bulletin Fall 2015
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