Sex Discrimination Found

The U.S. District Court for the District of Columbia recently found that the Library of Congress violated Title VII of the Civil Rights Act when it decided not to hire a qualified applicant who had disclosed to the selecting official that she was a transsexual and intended to transition from a male to a female. Schroer v. Librarian of Congress, Civil Action No. 05-1090 (September 19, 2008).

Diane Schroer is a male-to-female transsexual, i.e., a person born as a male but who identifies with being a female. Schroer was born as a male and was named David. Before changing her legal name or presenting herself as a female, Schroer applied for a position as a terrorism specialist at the Library of Congress. The duties of the position entailed providing expert policy analysis to congressional committees, members of Congress, and congressional staffers. The position required a security clearance which Schroer already had. Schroer received the highest interview score of all 18 candidates, and the selection committee for the position unanimously recommended that Schroer be offered the position. The selecting official offered Schroer the position, and Schroer accepted.

Before the selecting official had completed and submitted the paperwork necessary for finalizing the hire, Schroer asked the selecting official to lunch. During the ensuing lunch, Schroer disclosed that she had a gender identity disorder, intended to transition from a male to a female, and that she would be starting the job as "Diane" instead of "David." Schroer also explained that the overall transition process would not interfere with the performance of the job duties, and that she was aware of several transgender individuals who had retained their security clearances while transitioning.

The district court held that the defendant discriminated against Schroer because of sex in violation of Title VII. The District court found that the defendant's proffered legitimate, non-discriminatory reasons for not hiring Schroer were simply pretext for discrimination. In reaching this decision, the district court determined that employer actions involving a person's transsexuality may constitute sex discrimination.

The district court cited the principle in Price Waterhouse v. Hopkins, 490 US 228, 251 (1989), that Title VII prohibits discrimination based on a failure to conform to sex stereotypes. The district court also acknowledged that there is dissension among the federal courts as to whether Price Waterhouse prohibits discrimination against transsexuals is a form of sex stereotyping. Ultimately, the district court concluded that when direct evidence is presented of actions motivated by sex stereotypical views, then it is unnecessary for plaintiff to show that there was disparate treatment. The court found that Schroer presented such direct evidence and was entitled to judgment based on sex stereotyping.

Overall, this decision is interesting because the relatively strict interpretation of Title VII may actually result in broader protection in situations where an employer takes an adverse employment action involving an employee's or applicant's sexual orientation, transgenderedness, or transsexuality. Also, this decision may have a greater impact on the interpretation of Title VII by illuminating what it means to be subject to discrimination "because of" some protected basis.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com/

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