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Transgender identity … crisis for the courts




By Gina Helou

The Equal Employment Opportunity Commission (EEOC) states “Discrimination against an individual because that person is transgender is discrimination because of sex in violation of Title VII.”  Although the EEOC has taken this position, the courts have not yet specifically addressed whether transgender/gender identity discrimination is protected by Title VII.  The U.S. Court of Appeals for the Third Circuit issued a decision on this matter which was not binding on any courts and is not considered to create any new law.  However, the decision still provides useful guidance in situations involving transsexual or transgender individuals.

The employee’s gender discrimination claim
An engineer who, at the time of her hire, identified as male and exhibited masculine qualities, wearing male clothes and carrying a predominately male name, was diagnosed with GID four years after her employment began.  The engineer immediately sought treatment, which ultimately led to her full transition into a woman.  The engineer kept her employer aware of her treatment, and once she had fully transitioned, she changed her name, wore feminine clothing, and had several surgeries to alter her appearance.  

Within a year of her full transition, the engineer was reassigned to a new department under a new supervisor.  She received a performance evaluation from her previous supervisor, as she did every year, and felt the review was unfair.  The engineer complained to her new supervisor about her belief she received this review due to her GID diagnosis and subsequent transition.  The new supervisor investigated the engineer’s allegations and found that she received the same evaluation the year before, prior to her diagnosis and transition.  Furthermore, the most recent evaluation resulted in a salary increase for the engineer.

The company then merged and the acquiring company had a policy expressly prohibiting gender identity discrimination.  During the merger, almost 4,000 positions were eliminated based on a program that rated the employees’ skill set in execution, teamwork, communication, technical versatility, and customer focus.  The engineer’s new supervisor applied this program and decided she was ranked lower than several of her peers.  He took his analysis and assessment to his superiors, who agreed, and the engineer was notified of her termination.  Five years later, the engineer filed suit against the employer for, among other things, unlawful gender identity discrimination and retaliation under Title VII.

The court’s  analysis of Title VII discrimination
On appeal to the Third Circuit, the engineer claimed her gender identity and gender transition was the employer’s motivating factor behind her termination.  To support this allegation, the engineer stated 1) another employee replaced her; 2) her skill assessment occurred after the decision to terminate her; 3) the skill assessment test suffered serious weaknesses; 4) her supervisor purposefully targeted her; and 5) the reason for termination changed over time.

The Third Circuit disagreed, finding 1) a current employee replaced the engineer, which was consistent with the reduction-in-force; 2) she provided no record-evidence that the decision to terminate her occurred before her skill assessment; 3) the skill assessment test was adequate; 4) due to the test’s adequacy, she was not targeted; and 5) all of the reasons offered for her termination were consistent with one another.  Based on these findings, the engineer failed to meet her burden of proving there was a discriminatory reason for her termination.  The court dismissed the case in favor of the employer.

The takeaway
Although this case opened another transgender door which courts seem tentative to walk though, the Third Circuit focused on the same burden-shifting analysis applied in all gender discrimination cases.  Notably, the court did not directly address the issue of whether transgender/gender identity discrimination is protected by Title VII.  The court did not need to because the matter was not specifically raised on appeal.  Its glaring absence in the unpublished, non-precedential opinion may lead the next transgender employee filing a discrimination lawsuit to place the matter front and center.


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