the situation
You are interviewing a number of candidates for a vacant
position. One particular candidate stands out and he seems like he will
be the best fit. After you offer him the job, he tells you that he is a
transgender and will be presenting as a female by the time he begins to
work. Can you rescind your job offer?
the ruling
If you revoke your offer, you might face a Title VII claim. Late
last week, a federal court in Connecticut found that a plaintiff
alleging discrimination under similar circumstances could go forward
with her claim, despite the employer’s claim that Title VII does not
prohibit discrimination on the basis of transgender status. Fabian v. Hospital of Central Conn., No. 3:12-cv-1154 (D. Conn. March 18, 2016).
An orthopedic surgeon, with the assistance of a third party placement
service for physicians, went to the Hospital of Central Connecticut to
interview for an on-call surgeon position in the emergency department.
She had been assured that she had the job and that the interview was
just a formality. In fact, she had already signed a contract which
included a start date and based upon this, she had sold her home and
moved to the location of the hospital. At the time of the interview,
the surgeon was presenting as male and known as David Fabian. During
the interview, she disclosed that she was transitioning to female and
she would begin work with the hospital as Deborah Fabian. Fabian was
ultimately not hired and filed suit against the hospital.
One of the claims asserted by Fabian was that the hospital had
violated Title VII. The claimed that there were other reasons why it
did not hire Fabian, but that regardless, transgender status was not a
protected status under Title VII. The court disagreed.
As the court explained, the question is what it means to discriminate
“because of . . . sex” in violation of Title VII. If an employer
discriminates not against women as a group or men as a group, but
instead against transgenders (both men and women) as a group, is that
discrimination? The court explained that the United States Supreme
Court has not weighed in on this question and while some courts have
held that gender identity is not protected under Title VII, “the weight
of authority has begun to shift the other way . . .” Fabian at 13.
After analyzing multiple other courts’ view of the issue, the Fabian court
essentially concluded that “because of sex” does not just mean because
of one’s maleness or femaleness. Instead, discrimination because of sex
could relate to discrimination “because of the distinction between male and female or because of the properties or characteristics by which individuals may be classified as male or female.” Id. at
26. So then, discrimination because of sex would extend to
discrimination on the basis of gender stereotypes, and then clearly to
discrimination on the basis of gender identity (which may imply a
failure to comply with gender stereotypes).
the point
As the Fabian court recognized, the Supreme Court has not
yet tackled this issue. In the meantime, the same rationale underlying
the EEOC’s recent lawsuits alleging discrimination on the basis of
sexual orientation would apply to a claim that one’s transgender status
is protected under Title VII. Employees should be aware of the
potential for this type of claim and tread carefully when provided
information by an employee or prospective employee regarding his or her
transgender status.
Originally posted to Virginia Employer Law Blog, by Elaine Hogan on March 23, 2016.