Court Declines to Consider Whether Title VII Prohibits Gender Identity Discrimination

Mounted police candidate’s response time by horse was slower than other applicants; this was reason enough for nonselection

By Kelly Hughes April 27, 2016

Most judicial decisions are important because of what the court’s opinion says about the law, but sometimes a court’s decision is interesting because of what it does not say. A recent ruling from the 4th U.S. Circuit Court of Appeals illustrates this point. The 4th Circuit could have decided whether Title VII of the Civil Rights Act of 1964 encompasses claims of employment discrimination based on transgender status. However, because of a procedural issue in the case, the 4th Circuit merely assumed—without deciding—that the plaintiff’s Title VII claim was legally viable, even though it ruled against her on the facts of the case. 

Tomi Boone Finkle, a transgender woman, filed a lawsuit against Howard County, Md., alleging that she was not selected for a position with the Howard County Police Department’s Volunteer Mounted Patrol (VMP) because of her “sex, to wit, her gender identification and nonconforming gender conduct.” 

In 2011, Finkle—a retired police sergeant with experience as the commander of a volunteer horse-mounted search and rescue organization—expressed interest in the newly established VMP and applied for the VMP’s inaugural class. Although Finkle was among a group of applicants selected for an interview and received “above standard” ratings, Finkle was not selected for a position with the VMP.

The Howard County Police Department gave several reasons for her nonselection. First, considering the type of informal, nonconfrontational mounted unit the police department aimed to develop, it did not want to fill the positions with retired police officers. Second, but related to the kind of mounted unit that it was trying to develop, the police department felt Finkle seemed to “take over” in the interview and that she questioned the department about various incident management protocols, “underscor[ing the] belief that Finkle may not jibe with the program they were trying to create.” Finally, Finkle admitted during the interview that it would take her three hours to arrive with her horse at a deployment site—double the next-longest response time given by the other interviewees.

Finkle argued that these reasons were false and that the real reason she was not selected was because she is a transgender person. Finkle alleged that one individual selected in her stead was a retired police officer and at least two others lived farther away from Howard County than she did. She also submitted evidence of an e-mail exchange several months before the selection process began in which one of the hiring decision-makers corresponded with a fellow officer about transgender awareness training and stated, “Hope not promoting the idea??!!”

In evaluating Finkle’s claims, the district court first noted that neither the Supreme Court nor the 4th Circuit had decided whether Title VII protection extends to sex discrimination claims based on an individual’s gender identity, including transgender status. However, the district court acknowledged that another judge had ruled earlier in the case that Finkle’s claim of gender identity discrimination was a cognizable claim under Title VII. The court also noted that the U.S. Department of Justice had recently clarified that Title VII protection did extend to gender identity discrimination. Given this legal backdrop, and the fact that the parties did not challenge Finkle’s protected status, the district court analyzed Finkle’s sex discrimination claim “both as to her transgender status and as to her alleged nonconformance with gender stereotypes.”

The district court ultimately dismissed Finkle’s case, concluding that she was not discriminated against on the basis of her gender identity or gender nonconformance. Specifically, the court determined that the e-mail had no connection to her nonselection; that the candidate whom she had represented as a fellow retired police officer had actually worked at a desk job with the Secret Service; and that the distance from one’s home does not equate to response time and that she had the longest response time of all the candidates.

When the 4th Circuit reviewed Finkle’s appeal of the district court’s decision, the standard of review was de novo, which means that the appellate court was not bound by the lower court’s interpretations or constructions on questions of law. Yet, because the parties did not dispute that Finkle fell within a protected class within the meaning of Title VII, the 4th Circuit analyzed Finkle’s claims assuming—without deciding—that such protections existed. The 4th Circuit concluded that Finkle did not meet her burden to show that the police department’s reasons for her nonselection were a pretext for gender identity discrimination.

Finkle v. Howard Cty., No. 15-1731 (4th Cir. March 8, 2016).

Professional Pointer: Employers should update their equal employment opportunity and anti-harassment policies to provide explicit protections against discrimination and harassment based on gender identity.

Kelly Hughes is a shareholder in the Charlotte, N.C., office of Ogletree Deakins.


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