A transgender woman’s sex discrimination lawsuit examined the extent of protection, if any, offered for gender identity by federal anti-discrimination law. Jamal v. Saks & Company, No. 4:14-cv-02782, complaint (S.D. Tex., Sep. 30, 2014). Issues relating to transgender persons, generally defined as someone who identifies with a different gender than the one they were assigned at birth, have gained considerable prominence in recent years, particularly with regard to their rights against workplace and public discrimination. New Jersey and other states prohibit employment discrimination based on “gender identity or expression” N.J. Rev. Stat. § 10:5-12(a), but federal anti-discrimination laws do not expressly mention gender identity.
The defendant operates the Saks Fifth Avenue chain of department stores. The plaintiff, a transgender woman, first worked at an outlet store in suburban Houston, Texas until she was transferred to its “full-line store” in Houston. Jamal, complaint at 3. She alleges that the defendant routinely “misgendered” her by referring to her with male pronouns and other indicators, and denying permission to use the women’s restroom. The store manager allegedly requested that she “change her appearance to a more masculine one.” Id. at 5. Managers and fellow employees, the plaintiff claims, routinely harassed and belittled her on the basis of her gender identity. She complained to the EEOC, and was fired ten days later.
The plaintiff sued for wrongful termination, hostile work environment, harassment, and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. The defendant filed a Rule 12(b)(6) motion to dismiss in December 2014 that referred to the plaintiff as “he,” and used the term “[sic]” when quoting portions of the plaintiff’s complaint that used female pronouns. This term is used to indicate that quoted text includes errors or inaccuracies found in the original. The defendant later withdrew its motion, and the parties stipulated a dismissal of the lawsuit in March 2015. The questions it raised still remain, though.
At least two federal appellate courts have allowed transgender plaintiffs to assert discrimination claims based on “sex stereotyping” under Title VII. The U.S. Supreme Court held that “stereotyped remarks can certainly be evidence that gender played a part” in an employment decision in Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989). Plaintiffs can plead a sex discrimination case based on, for example, efforts to enforce stereotypical gender behaviors.
The Sixth Circuit Court of Appeals recognized a transgender woman’s sex stereotyping claim in Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004). The district court had suggested that her sex-stereotyping claim was an “end run” around a claim of discrimination based on “transsexuality.” Id. at 571. The appellate court held that she met the pleading requirements of Price Waterhouse by alleging that the defendant’s actions were based on the plaintiff’s “failure to conform to sex stereotypes concerning how a man should look and behave.” Id. at 572. Another court affirmed a transgender woman’s right to recover damages under 42 U.S.C. § 1983 in Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011).
The Sixth Circuit’s decision is just over a decade old, but it clearly shows how much has changed in public discourse. The court refers to the plaintiff as “he” despite her female gender identity, and makes repeated mention of her diagnosis with gender identity disorder (GID). The American Psychiatric Association renamed GID “gender dysphoria” and moved it from the section on disorders to its own section when it published its newest manual, the DSM-5, in 2013.
If you are dealing with an employment law matter in New Jersey or New York, please contact the Resnick Law Group today online, at 973-781-1204, or at (646) 867-7997 to schedule a confidential consultation to discuss your case.
More Blog Posts:
New Jersey Law Protects Workers from Discrimination Prohibited by Proposed Federal Employment Non-Discrimination Act, The New Jersey Employment Law Firm Blog, December 5, 2013
Exxon to Begin Offering Same-Sex Spousal Benefits in New Jersey and Across the U.S. Amid Allegations of Sexual Orientation Discrimination, The New Jersey Employment Law Firm Blog, December 3, 2013
Lawsuit Alleges Gender Discrimination After Plaintiff Revealed Transgender Status, The New Jersey Employment Law Firm Blog, February 5, 2013
Photo credit: By Nived 90 (Own work) [CC BY-SA 3.0], via Wikimedia Commons.