Sex Discrimination Claims Under Title VII and the Equal Protection Clause: The Eleventh Circuit Bridges the GapMuch of the case law goes back to a 1989 Supreme Court decision in the Price Waterhouse v. Hopkins case, the court found that sex discrimination also covered sex stereotyping. The plaintiff said that she was denied a partnership because she did not look womanly enough and that this was sex discrimination under Title VII of the Civil Rights Act of 1964. It was under that Supreme Court ruling that the Connecticut Human Rights and Opportunities commission ruled that Connecticut anti-discrimination statutes sex discrimination also covered gender identity.
Verdict
David S. Kemp
March 19, 2012
In December 2011, the U.S. Court of Appeals for the Eleventh Circuit ruled in Glenn v. Brumby that the Fourteenth Amendment of the federal Constitution protects transgender government employees from discrimination on the basis of their transgender identity. Courts have long recognized that the Fourteenth Amendment prohibits discrimination against individuals because of their gender, but only recently have courts begun to acknowledge that the term “gender” encompasses transgender identity.
Most gender discrimination cases in the workplace arise under Title VII of the Civil Rights Act of 1964 (“Title VII”) because Title VII is enforceable against a vast majority of employers. In contrast, the Fourteenth Amendment’s Equal Protection Clause protects only against discrimination by governments.
The article goes on to say what you need to prove your case under Title VII,
To prove a case alleging sex discrimination in violation of Title VII, a plaintiff must show that despite being qualified, he or she suffered an adverse employment action (e.g., being demoted or fired, or being passed over for promotion or hiring) when other similarly situated employees did not, and that the difference in treatment was attributable to sex or to sex-stereotyping. Once the plaintiff has made that showing, then—unless the defendant can show a non-pretextual, legitimate, nondiscriminatory reason for the employment decision—the plaintiff will prevail.And that leads me to the Connecticut anti-discrimination statute, in Public Act No. 11-55 paragraph 21,
(21) "Gender identity or expression" means a person's gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person's physiology or assigned sex at birth, which gender-related identity can be shown by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held, part of a person's core identity or not being asserted for an improper purpose.The part that I emphasized has cause some angst in the transgender community, but what that section does is to provide some guidelines as to what constitutes what the Verdict article said, “and that the difference in treatment was attributable to sex or to sex-stereotyping.” You have to prove that you are a member of that protected class and that you were discriminated against because you are a member of that class.
In Connecticut, we now have that protection written in to law, but on the federal level we are still at the mercy of a judge sitting on a court bench. That is why we need to pass a gender inclusive Employment Non-Discrimination Act (ENDA) so that our protection is not based on the whim of a judge.
Diana,
ReplyDeleteThe 11th curcuit decision is similar to a number of findings by some other circuits. Some others have disagreed. The 11th is interesting because it is considered a conservative curcuit and their logic was put in terms that directly addresses Supreme Court Justice Kennedy's recent opinions in an apparent attempt to ensure any appeal would have a better chance of getting his, likely, deciding vote.
Leann
Even with a Federal Law we are still at the mercy of judges on a bench. It would just be spelled out perhps clearer what we as a gender minority must do.
ReplyDeleteHowever, these rulings are a clear step away from the landmark case Ulane v Eastern Airlines. In that ruling, the judge ruled agains Karen Ulane stating that Title VII did not apply. So the courts are now coming to realize that Ulane was wrong.
Or is it that we as a society are trying to find a way to protect gender and sexual minorities. Since governments won't act many times the courts stepped in. Civil rights got a huge impetus from the Brown V Board of Education and Women's (reproductive determination) rights got a big help from Roe V Wade.