Washington, D.C. – District Court Holds That Transsexual Plaintiff Can Assert Claim Under Title VII Based on Sex Stereotyping Theory
 
March 5, 2008
 
Jonathan E. "Jon" O'Connell- Northern Virginia

In Schroer v. Billington, Civil Action No. 05 1090 (D.D.C. November 28, 2007), plaintiff Diane Schroer, a transsexual, filed suit against the Librarian of Congress (the librarian) claiming that her offer of employment was rescinded in violation of Title VII of the Civil Rights Act of 1964 and the due process clause of the United States Constitution. Schroer’s complaint alleged that following a job interview, in which she presented as a man, she was extended an offer for a position as a terrorism research analyst with the Congressional Research Service (CRS). Subsequently, during a lunch meeting with a CRS employee to discuss her start date, Schroer disclosed that she was receiving medical care for gender dysphoria and that she intended to begin using a female name and dressing in women’s attire. According to Schroer, following this disclosure, the CRS employee stated that Schroer had “really given [her] something to think about.” The following day, the librarian rescinded Schroer’s offer of employment.

Schroer filed a lawsuit alleging sex discrimination in violation of Title VII and a violation of the due process clause of the United States Constitution. Schroer’s Title VII claim was based on two distinct theories: (i) that the defendant violated Title VII by engaging in sex stereotyping, and (ii) that discrimination against transsexuals violates the plain language of Title VII. Schroer’s due process claim focused on the assertion that she possessed “a constitutionally protected liberty interest in making medical decisions without penalty by the government in the absence of a constitutionally sufficient justification.” The librarian moved to dismiss all of Schroer’s claims. For purposes of its analysis of the legal claims, the Court identified Schroer as a woman.

Sex Stereotyping Claim

In analyzing Schroer’s claim that the librarian’s alleged sex stereotyping violated Title VII, the Court cited the United States Supreme Court case of Price Waterhouse v. Hopkins, in which the Supreme Court held that a woman who was denied partnership because she was perceived as being too “macho” could sustain a claim under Title VII. The Court observed that “[a]pplying the logic of Price Waterhouse, numerous federal courts have held that punishing employees for failure to conform to sex stereotypes, including stereotypes regarding dress and appearance, is a form of sex discrimination actionable under Title VII.” The Court denied the motion to dismiss Schroer’s sex stereotyping claim, noting that Schroer’s complaint contained allegations that she was discriminated against because her appearance did not conform to the librarian’s expectations of how a woman should appear, and was not based solely on her gender dysphoria.

Discrimination Against Transsexuals Claim

In addition to Schroer’s assertion that the librarian violated Title VII by engaging in gender stereotyping, Schroer also alleged that discrimination against transsexuals because they are transsexuals constitutes a violation of Title VII as it is discrimination “because of … sex.” Because the court found that Schroer could proceed with her Title VII claim based on a sex stereotyping theory, it did not expressly resolve the issue of whether discrimination against transsexuals violates Title VII. However, the Court observed that the “plaintiff’s definition of sex under Title VII may be too expansive.”

Due Process Claim

Schroer’s due process claim was based on the assertion that she had “a constitutionally protected liberty interest in making medical decisions without penalty by the government in the absence of a constitutionally sufficient justification.” Ultimately, the court rejected Schroer’s due process claim. In doing so, the court held that “the decision to undergo gender reassignment does not implicate a fundamental liberty interest ... .”

Conclusion

While the scenario involving transsexual employees or job applicants is unusual, it is becoming more common. Nevertheless, the reasoning in Schroer illustrates the care employers should use in making employment decisions concerning the more common scenario of applicants or employees who may not conform to what many view as “traditional” notions of gender behavior. Employers and their managers should be aware that employment decisions based on sex stereotyping can create a basis for liability under Title VII.

For more information, email Jonathan O’Connell at jonathan.oconnell@hklaw.com or call toll free, 1.888.688.8500.