Four years ago, the 6th Circuit handed down a landmark decision in Smith v. Salem. In Smith, the Court reversed the district court's dismissal of a Title VII sex discrimination claim brought by a transgendered firefighter. It found that
Sex stereotyping based on a person’s gender non-conforming 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 non-conformity....
Having alleged that his failure to conform to sex stereotypes concerning how a man should look and behave was the driving force behind Defendants’ actions, Smith has sufficiently pleaded claims of sex stereotyping and gender discrimination.
The following year, in Barnes v. Cincinnati, the same court followed suit by affirming a jury verdict in favor of Phillip Barnes, a pre-operative male-to-female transsexual who was denied a job in the Cincinnati Police Department.
Last week, the D.C. District Court, following Smith and Barnes, reached a similar conclusion in Schroer v. Billington. In that case, the Library of Congress had offer a position to David Schroer, until he told his his future employer that he would be showing up at work as Diane. He sued for gender discrimination after the Library rescinded the job offer. The trial judge ruled that the employer is liable for sex discrimination:
The evidence establishes that the Library was enthusiastic about hiring David Schroer -- until she disclosed her transsexuality.... The Library revoked the offer when it learned that a man named David intended to become, legally, culturally, and physically, a woman named Diane. This was discrimination "because of ... sex."
In other words, while transsexuality and transgenderism are not protected classes in and of themselves, men who fail to conform to sexual stereotypes of how men are supposed to look and act might be protected by Title VII's prohibition against sex discrimination. My concern with this decision is that if gender identity is protected under the umbrella of sex discrimination, why do we need to amend Title VII to specifically include gender identity as a new protected class.
For companies, the lesson to be learned in a universal one - employment decisions should always be made based on legitimate criteria and not innate personal characteristics. The former can always be defended; the latter opens up an organization to liability.