In the case of a potential landmark decision, a federal district court in Connecticut ruled that “employment discrimination on the basis of transgender identity is employment discrimination ‘because of sex’ and constitutes a violation of Title VII of the Civil Rights Act.”
In Fabian v. Hosp. of Cent. Conn., No. 3:12-cv-1154 (D.Conn. March 18, 2016), a hospital allegedly told the plaintiff, a job applicant, that she would get the job as an on call orthopedic surgeon. The plaintiff executed a contract and the hospital provided a start date. However, during the interview, which the hospital allegedly told her was a mere formality, “she disclosed her identity as a transgender woman who would begin work after transitioning to presenting as female.” The plaintiff subsequently learned that the hospital would not hire her.
The plaintiff sued alleging, among other things, that the decision not to hire her violated Title VII. Under Title VII, it is unlawful for an employer “to fail or refuse to hire [. . .] any individual [. . .] because of such individual’s race, color, religion, sex, or national origin.” The central question in the case involved whether the prohibition against discrimination “because of sex” extends to gender identity. The federal district court explicitly found that “discrimination on the basis of gender stereotypes, or on the basis of being transgender, or intersex, or sexually indeterminate, constitutes discrimination” on the basis of sex and is, therefore, prohibited under Title VII.
This case is significant as it is the first known case which expressly finds that discrimination on the basis of transgender identity alone is employment discrimination “because of sex” and constitutes a violation of Title VII. While various courts recognize that the prohibition against discrimination “because of sex” extends to transgender individuals for purposes of sex stereotyping claims – i.e., a transgender person fails to conform to conventions on what it means to be masculine or feminine leading to discrimination – no known case expressly holds that discrimination based on transgender status, in and of itself, is discrimination “because of sex” under Title VII.
While the case did not originate in Ohio, the position adopted by the Fabian court is also the position currently adopted by the Equal Employment Opportunity Commission, the federal agency that enforces Title VII. To review the fact sheet outlining the EEOC’s position regarding gender identity or sexual orientation please click here. Moreover, it is anticipated that plaintiffs will use this case as a template in pursuing future litigation against their employers. Governmental employers are encouraged to contact their legal counsel or McGown & Markling to ensure that their non-discrimination policies are current with this advancing state of the law.
To read this case, please click here.
Authors: Matthew John Markling and Patrick Vrobel
Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.