Lesbian Gay Bisexual & Transgender Workplace Rights

LGBT Cases of Interest

Advocates for the workplace rights of gender non-conforming people scored a huge victory in September when a federal judge in Washington, D.C. ruled that the Library of Congress (the “Library”) violated federal anti-discrimination law in refusing to hire a transitioning applicant.  In concluding that the plaintiff, Diane Schroer, was discriminated against because of sex in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), the court rejected traditionally narrow interpretations of Title VII, and opened the way for broader protections for individuals who change their gender.  In a press release issued shortly after the court’s decision became public, Sharon McGowan, one of the ACLU LGBT Project staff attorneys who brought and tried the case, said:  “The court got it exactly right, sending a loud and clear message to employers everywhere:  if you fire or refused to hire someone for transitioning, you are guilty of sex discrimination and may well find yourself liable.”

Background:

Schroer, a retired Special Forces officer, applied for a position with the Library as a senior terrorism research analyst in August 2004. In this position, Schroer would provide expert policy analysis to congressional committees, members of Congress and their staffs.  With 25 years experience in the U.S. Armed Forces, including her experience “as the director of a 120-person classified organization that tracked and targeted high-threat international terrorist organizations[,]” Schroer was more than qualified for the position.  Schroer v. Billington, No. 05-1090, slip op. at 2 (D.D.C. Sept. 19, 2008).  Indeed, during her tenure, Schroer had “analyzed sensitive intelligence reports, planned a range of classified and conventional operations, and regularly briefed senior military and government officials, including the Vice President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff.”  Id. Unsurprisingly, given her remarkable credentials, the Library offered her the job..

Soon after she accepted the position, she informed the Library that she would be transitioning from male to female.  During lunch with her future boss, Schroer explained that she was transgender, was in the process of transitioning, and would be presenting as female when she started her job.  The following day, Schroer received a call from her future boss rescinding the job offer.

On June 2, 2005, Schroer filed a complaint in the United States District Court for the District of Columbia, alleging unlawful sex stereotyping and sex discrimination in employment.  Several motions to dismiss followed, with Schroer prevailing in each attempt by the Library to eliminate her lawsuit.

Finally, on September 19, 2008, after a bench trial on the merits, United States District Judge James Robertson issued a detailed and well-reasoned 35-page opinion holding that when it refused to hire Schroer, the Library violated Title VII’s prohibitions against sex discrimination under both legal theories posited by Schroer. 

Affirming the Application of the Sex Stereotyping Theory:

Schroer had claimed that the Library had violated Title VII under a “sex-stereotyping” theory.  Under this theory, numerous federal courts, beginning with the Supreme Court in its landmark decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), “have concluded that punishing employees for failure to conform to sex stereotypes is actionable sex discrimination under Title VII.”  Id. at 22 (citing cases).  In fact, in Smith v. Salem, 378 F.3d 566, 574-75 (6th Cir. 2004), the Sixth Circuit Court of Appeals applied the sex stereotyping theory in a case brought by a transsexual plaintiff and held that “[s]ex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination” under Title VII. 

In analyzing Schroer’s claims under this theory, Judge Robertson focused on certain comments made by the official responsible for filling the position sought by Schroer.  For example, the official had testified that Schroer “would not be deemed credible by Members of Congress and their staff because people would perceive her to be a woman, and would refuse to believe that she could possibly have the credentials that she had.”  Id. at 28.  Judge Robertson found that “Schroer was entitled to judgment based on a Price Waterhouse-type claim for sex stereotyping, whether the official’s comments could be parsed to mean that the Library withdrew its offer “because it perceived Schroer to be an insufficiently masculine man, an insufficiently feminine woman, or an inherently gender-nonconforming transsexual.”  Id. at 28.    

Broadening Protections for Gender Non-Conforming People:

The second theory under which Schroer brought her suit was that “because gender identity is a component of sex, discrimination on the basis of gender identity is sex discrimination” under Title VII.  Id. at 29.  Looking at the statutory language of Title VII, the court ruled that the Library’s “refusal to hire Schroer after being advised that she planned to change her anatomical sex by undergoing sex reassignment surgery was literally discrimination ‘because of  . . . sex.’”  Id. at 33-34.  In doing so, the court rejected a line of cases dating back more than 25 years in which courts had consistently held that discrimination based on changing one’s sex is not discrimination “because of sex” for purposes of Title VII. 

Finding that the courts in those cases had “allowed their focus on the label ‘transsexual’ to blind them to the statutory language itself,” the court compared discrimination against transsexuals to discrimination against religious converts in the following manner:   

Imagine that an employee is fired because she converts from Christianity to Judaism.  Imagine too that her employer testifies that he harbors no bias toward either Christians or Jews but only to “converts.”  That would be a clear case of discrimination “because of religion.”  No court would take seriously the notion that “converts” are not covered by the statute.  Discrimination “because of religion” easily encompasses discrimination because of a change of religion.

Id. at 31 (emphasis in original).  In analogizing a change in sex to a change in religion, the court reasoned that discrimination against a transitioning individual constituted discrimination on the basis of sex for purposes of finding Title VII liability. 

The case now moves to the damages phase, in which the court will assess what damages are due to Ms. Schroer.