Employment Law Daily Yes, failure to hire due to transgender status is 'because of sex'
Wednesday, March 23, 2016

Yes, failure to hire due to transgender status is 'because of sex'

By Joy P. Waltemath, J.D. Clearly holding that employment discrimination on the basis of transgender identity is “because of sex” and violates Title VII, a federal district court in Connecticut cited Samuel Johnson’s 1755 Dictionary of the English Language, as well as dictionary definitions from the civil rights era, Congressional intent (or lack thereof), and a history of transgender cases from 1977 to the present to find that a transgender surgeon’s discriminatory failure-to-hire case avoided summary judgment. Notably, the hospital that extended a job offer had not shown that the on-call orthopedic surgeon position was beyond the scope of Title VII because it was for an independent contractor rather than an employee. The physician made out a prima facie case of discrimination and proffered sufficient evidence for a reasonable jury to find that the nondiscriminatory reasons the hospital offered for not hiring her after she disclosed in her final interview that she was transitioning to female were pretextual, said the court, stating the issues were for a jury to decide (Fabian v. Hospital of Central Connecticut, March 18, 2016, Underhill, S.). Almost hired. At a time she was still presenting as a man, the surgeon was allegedly “very nearly hired” as an on-call orthopedic surgeon by a hospital. She attended an interview that she characterized as “barely more than a formality” and claimed that she had already been told she would get the job, that she had already been given a contract with a start date (which she executed and returned), and that she relied on these actions to sell her family home in Massachusetts. At the end of her interview, she told her interviewers that she is a transgender woman and was transitioning to presenting as female. As a result, she was not hired, she claimed. In the resulting Title VII and state statutory litigation, the hospital claimed it had legitimate nondiscriminatory reasons not to hire her, and she had not shown pretext. It also claimed it would not have been her employer, because the position was for an independent contractor and that, in any event, transgender is not a protected status under Title VII and was not a protected status under the Connecticut Fair Employment Practices Act at the time. Independent contractor status. Whether it is ultimately for the court or a jury to find that an individual is an employee or an independent contractor remains unsettled, at least in the Second Circuit. But weighing the Reid factors is still highly fact-specific, noted the court, focusing on the first factor: the extent to which the hiring party controls the ‘manner and means’ by which the worker completes his or her assigned tasks. Recognizing the tension inherent in a highly skilled profession like medicine, where physicians “will necessarily always maintain a significant degree of autonomy,” does not automatically mean hospital physicians are simply excluded as a class from protection as employees under Title VII, however. Here, the physician never started work so some of the dynamics of the working relationship remained unclear. But under the hospital’s agreement (the one the physician received and executed), any physician hired would be subject to hospital bylaws, rules, regulations, policies, and procedures; required to maintain “Medical Staff privileges” and appropriate credentials; subject to hospital review and approval of their schedules; required to participate in quality assurance, medical audit, risk management, utilization review, safety, infection control, and peer review programs; follow policies and procedures with respect to medical records and timekeeping, to participate in staff committees, and to attend staff meetings. What was clear was that she would have far less autonomy—and the hospital would have greater control—than she would have had in an individual practice, in a partnership with a few other doctors, or if she merely had admitting privileges. Other factors favoring employee status included the location of the work and the source of the instrumentalities and tools; the duration of the relationship (she was to become a “regular part of the hospital personnel, said the court); and the hospital’s interest and involvement in the hiring process, and the fact that it interviewed and declined to hire Fabian, even though it had contracted with a third-party staffing company to provide it with candidates. Although none of those factors was dispositive, the court did not need to decide the issue because the hospital had not shown that as a matter of law, the physician would not have been an employee. Her alleged status as an independent contract did not prevent the case from advancing. Discriminatory failure to hire. First addressing everything but whether she was a member of a protected class, the court found it undisputed the physician was qualified for the job and was denied it under circumstances giving rise “to an inference of invidious discrimination.” She presented evidence that she was led to believe she was all but formally hired, that she received some sort of contract (the hospital said it was a sample only), that she relied to her detriment on such representations to such an extent that she sold her home in Massachusetts, that she was not hired after disclosing her transgender identity, and that other doctors who are not transgender were subsequently hired. The hospital’s legitimate nondiscriminatory reasons for not hiring her—her alleged reluctance about being called in at late hours and about its electronic recordkeeping systems, and wanting to perform more surgery—were disputed as to their basis in statements she made during the interview. That was enough to get to a jury on pretext, the court concluded. Because of sex. The crux of the case was, of course, whether the Title VII words “because of sex” prohibit employment discrimination against transgender people because they are transgender people. “Framed differently, the question is this: If an employer does not discriminate against women as a class or against men as a class, but does discriminate against transgender people (irrespective of whether they are transgender men or transgender women), does that employer violate Title VII?” Title VII jurisprudence. Neither the Supreme Court nor the Second Circuit has ever addressed that question, noted the court, proceeding to trace the history of the Congressional intent behind adding “sex” to Title VII and subsequent Title VII jurisprudence. (The opinion is worth reading on that basis alone.) Among other things, the court cited the oblique legislative history where introducing sex as an amendment to Title VII apparently was an attempt “to scuttle the whole Civil Rights Act” that did not work. It cited former Justice Scalia in Oncale v. Sundowner Offshore Servs., Inc., finding male-on-male sexual harassment actionable. And it discussed gender stereotyping and the effect of Price Waterhouse, which did not directly address transgender identity, but which has been seen to shift the direction of Title VII cases on this issue, and which the court believed “shows that gender-stereotyping discrimination is sex discrimination per se.” In sum, discrimination on the basis of transgender identity is now recognized as discrimination “because of sex” in the Ninth, Sixth, and Eleventh Circuits, and by the EEOC. Discrimination on the basis of transgender identity is regarded as not constituting discrimination “because of sex” in the Tenth Circuit, and it is unclear in the Seventh and Eighth Circuits, instructed the court. Making much of dictionary definitions that go far beyond the notion that the word “sex” simply and only means “male or female,” the court reiterated that it can also mean “the distinction between male and female, or the property or characteristic (or group of properties or characteristics) by which individuals may be so distinguished.” This definition would surely include discrimination on the basis of gender stereotypes, and just as surely discrimination on the basis of gender identity. Reciting a well-used example, the court pointed out that discrimination “because of religion” easily encompasses discrimination because of a change of religion—conversion from Christianity to Judaism, for one. “Discrimination against converts, or against those who practice either religion the ‘wrong’ way, is obviously discrimination ‘because of religion.’ Similarly, 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 the properties or characteristics typically manifested in sum as male and female—and that discrimination is literally discrimination ‘because of sex,’” concluded the court, sending the question of whether the hospital discriminated against the physician on the basis of her gender identity to a jury.

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