Friday, April 4, 2008

Texas court rejects "deception" defense in trans employment suit

Lambda Legal just announced an important victory in a Title VII suit brought by a transgender woman in Texas. Izza Lopez sought and was offered a job at a medical imaging company in 2005, but the company rescinded the offer after it discovered she was trans. ( The company's explanation: she had "misrepresented" herself as a woman despite being born male.

The federal district court rejected motions for summary judgment by both sides, but Lambda viewed the decision as a victory for trans workers, since it apparently accepted the premises that (1) anti-trans discrimination can be considered sex discrimination under Title VII, and (2) employers can't, as a defense, characterize a person's gender expression as "deception" -- at least not where they made no attempt to hide their gender history.

As I've discussed previously, federal courts have had had difficulty grappling with the treatment of anti-transgender discrimination under Title VII. Employers will typically argue that it simply isn't covered by federal law or, as here, assert a "defense" that is simply a reframing of their discriminatory animus. For some background on this in the context of a still-ongoing case with similar facts, see this 2006 post by Arthur Leonard.

The decision isn't up on Westlaw yet, and Lambda's press release is skimpy on details, so it's unclear as yet why the court rejected Ms. Lopez's motion for partial summary judgment. Trans discrimination cases are unusual in that they so often involve "smoking-gun" evidence of discriminatory intent, and this case is no exception: the employer told her the decision was about being transgender. Once the employer's legal arguments are rejected, that wouldn't seem, at first blush, to leave much in the way of material fact questions. Probably there's more to it, and I look forward to reading the decision itself.


Élise Hendrick said...

To which I would add that, since sex discrimination in employment is prohibited (albeit inadequately in many ways) by Title VII, even if her gender identity and expression could somehow be qualified as "deceptive" (in an odd sense of the term that would allow one to "deceive" by making an assertion one knows to be true, rather than one that one knows to be false), there's still the problem of materiality. To say that "deception" as to one's gender is grounds for termination is ultimately to say that one's gender is considered an occupational qualification by the employer, which is precisely what employers may not do (BFOQs notwithstanding)

Harper Jean Tobin said...

I expect that's more or less the analysis of the court in rejecting summary judgment for the employer - but of course I still have to get my hands on the decision. As the plaintiff's counsel argued, it would be discrimination to rescind a job offer because you found out someone had given you the wrong impression about their race, religion or nationa l origin. Even if what the plaintiff did could be categorized as somehow dishonest, misrepresenting something so persona and irrelevant to the job hardly seems like a legitimate, nondiscriminatory reason.

Élise Hendrick said...

Yes, it amounts to firing someone for their answer to a question you shouldn't have asked in the first place, sort of an "exculpatory no" in the employment context (though one hopes it will fare better there than it did in the criminal context)

Élise Hendrick said...

By the way, would you be so kind as to e-mail me a copy of the decision when you get it?

adam brown said...
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