Court Report: Transsexual Can Proceed With Sex Discrimination Claim

By Michael S. Cohen; Bradley W. Kampas and Scott Oborne Aug 1, 2004

HR Magazine, August 2004Transsexual’s discrimination claim allowed; labor neutrality law pre-empted; expression of interest amounts to application.

Smith v. Salem, Ohio, 6th Cir., No. 03-3399, June 1, 2004.

An employee is allowed to bring a Title VII claim for sex discrimination based on his gender nonconforming conduct and his identification as a transsexual, the 6th U.S. Circuit Court of Appeals has held.

Jimmie Smith—a transitioning preoperative transsexual—was a lieutenant in the City of Salem (Ohio) Fire Department and had held his job for seven years without incident. Anatomically a male, Smith was diagnosed with gender identity disorder, which the American Psychiatric Association recognizes as a disjunction between an individual’s sex organs and sexual identity.

After his diagnosis and as part of his therapy, Smith began to display a more feminine appearance, including while at work. Fellow fire department employees began to ridicule Smith, telling him his appearance and mannerisms were not “masculine enough.”

Smith notified his immediate supervisor of his diagnosis and therapy. Even though Smith had asked him not to, the supervisor told the fire chief. Thereafter, fire department and city officials had a meeting at which they concocted a scheme to try to get Smith to quit his job. Afterward, one of the officials present at the meeting telephoned Smith and tipped him off about the plan, calling it a “witch-hunt.”

Within days of the meeting, Smith’s lawyer informed the fire department of Smith’s legal representation and the potential ramifications of following through with the plan. Four days later, Smith was suspended. After appealing his suspension, which the city upheld but the Court of Common Pleas reversed, Smith filed suit in federal district court alleging violations of Title VII of the Civil Rights Act of 1964 among other claims.

The trial court dismissed Smith’s case because Title VII does not prohibit discrimination on the basis of transsexualism, but the 6th Circuit reversed on appeal. The 6th Circuit explained that Smith’s allegation that his failure to conform to sex stereotypes regarding how a man should look and behave was, in fact, the driving force underlying the fire department’s actions.

The appeals court held that “sex stereotyping based on a person’s gender nonconforming behavior is impermissible discrimination, irrespective of the cause of that behavior; a label, such as ‘transsexual,’ is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender nonconformity.”

The court also ruled that a claim based solely on self-identification as a transsexual, as opposed to one based on specific appearance and behavior, also is actionable sex discrimination under Title VII.

By Michael S. Cohen, an attorney with the firm of Wolf, Block, Schorr and Solis-Cohen LLP in Philadelphia.

Federal Law Pre-Empts State Labor Neutrality Law

U.S. Chamber of Commerce v. Lockyer, 9th Cir., No. 03-55169, April 20, 2004

Upholding employers’ right to express views in opposition to union organizing efforts, the 9th U.S. Circuit Court of Appeals recently struck down key provisions of a California law that effectively mandated employer neutrality in the face of union organizing efforts.

Effective Jan. 1, 2001, California enacted legislation that prohibits a wide range of employers who receive state funds from using those funds to “assist, promote, or deter union organizing.” The law requires employers that receive state funds to completely segregate public and private funds before spending any private money to oppose an organizing campaign. Employers who fail to comply face severe penalties in lawsuits filed either by unions or the California attorney general’s office.

Several individual employers and employer associations, including the U.S. Chamber of Commerce, filed a lawsuit (naming California Attorney General Bill Lockyer) challenging the neutrality legislation. The plaintiffs argued in part that the National Labor Relations Act (NLRA) pre-empts California’s neutrality law under two separate doctrines. Together, these doctrines serve to protect the exchange of speech and ideas during union organizing by preventing local or state governments from infringing on the delicate balance of power between unions and employers.

The 9th Circuit agreed, concluding that California’s neutrality law “both substantially and purposefully alters the balance of forces in the union organizing process, interfering directly with a process protected by the NLRA.” The court held that the legislation “is on its face designed to interfere directly with the NLRA’s own system for the promotion or deterrence of union organizing by employers and employees. The statute will alter the NLRA process of collective bargaining and union organizing, because an employer who decides against neutrality will incur both compliance costs and litigation risk.”

The California attorney general’s office and the intervenor American Federation of Labor and Congress of Industrial Organizations have filed requests for reconsideration of the 9th Circuit panel’s decision by the full court.

By Bradley W. Kampas and Scott Oborne, attorneys with the law firm of Jackson Lewis LLP in San Francisco.


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