EEOC and courts have protected transgender employees against discrimination
Cases involving the firing, suspension or harassing of transgender teachers have made national news in recent years, raising the issue of how to handle a teacher’s contract if parents create an uproar over an instructor’s transgender status.
What are the legal issues that a school or its HR manager must consider? Can a private school make the case that its business will be significantly damaged by keeping the transgender teacher on board? Are parochial schools protected from discrimination lawsuits by transgender employees?
“If you had the most radical African-American person or radical feminist, and the school said, ‘We don’t like that person,’ most of us would agree you can’t say, ‘We’re not going to let these [people] teach our children,’ ” said Robert G. Brody, founder and managing partner of Westport, Conn.-based Brody and Associates LLC. “You can’t discriminate against them, either. Now you have this person who’s decided to dress like a different sex, but even though it’s ruffling a lot of feathers, that’s tough.”
Title VII of the Civil Rights Act of 1964 doesn’t specifically prohibit discrimination on the basis of gender identity. Yet the U.S. Equal Employment Opportunity Commission (EEOC) has interpreted Title VII to provide protections for transgender employees, as have a number of courts that have ruled that discrimination against someone because of their transgender status is a type of sex discrimination.
Moreover, 16 states, the District of Columbia and more than 140 local governments have laws expressly prohibiting discrimination on the basis of gender identity or expression.
Cases involving the firing or harassing of transgender teachers have received national attention in the past two years:
• In Lumberton, Texas, a transgender substitute teacher was told in April 2014 not to return to class after parents complained that her transgender status would distract and confuse young children. Laura Jane Klug, who was born Kurt Klug, told a local news station that a school human resources official suspended her pending a school board decision whether to continue her employment. The school reinstated her a few days after the suspension.
• In March 2014, parents at California’s Yosemite High School wrote letters to a local newspaper telling a transgendered science teacher to quit after the teacher showed up in class for the first time as a woman. The former Gary Sconce—a Yosemite High teacher for 24 years—notified school officials earlier in the year that she was transitioning from male to female and would return after spring break as Karen Adell Scot.
• In January 2013, a transgender teacher sued New York City’s St. Francis Preparatory School, a Catholic school where he worked for more than 30 years, claiming he was wrongfully terminated after parents of a ninth grader complained about his appearance. The teacher, Mark Krolikowski, remained anatomically male but grew out his hair, wore earrings and painted his fingernails.
In recent years, there has been a surge of legal opinions, policy positions and government rulemakings that have afforded the transgender community greater protections against employment discrimination.
In September 2012, the U.S. Department of Health and Human Services clarified that provisions in the Patient Protection and Affordable Care Act prohibiting sex discrimination in health insurance apply to transgender people.
The EEOC ruled in April 2012, in Macy v. Holder, that an employer who discriminates against an employee or applicant because of the person’s gender identity is violating the prohibition on sex discrimination contained in Title VII.
In 2011, the 11th Circuit Court of Appeals ruled that while transgender people don’t belong to a protected class, they may still enjoy protection from discrimination under the federally protected classes of sex and gender if an employer takes adverse action against them because their appearances or behaviors don’t fit gender stereotypes.
“Parental uproar is not a basis to abridge another person’s protected rights,” said Denise M. Visconti, office managing shareholder with Littler in San Diego, Calif.
Title VII does provide an exemption for religious entities. However, that exemption is narrowly tailored to religion, and may not always entitle religious schools to discriminate based on gender, including transgender status.
“The Supreme Court has ruled that when it comes to clergy, you can do pretty much whatever you want in terms of Title VII, which means if you want to say, ‘Our priest can’t be an African American or over 60 or a woman,’ the court has generally said we’re not going to step between church and state,” Brody said.
Yet when it comes to parochial school, for employees who don’t have a religious role in the institution, it could be harder to fight a discrimination lawsuit, he said.
A school would have “a hard time explaining why the janitor has to be male or female in the traditional sense,” he said. “They’d have a hard time explaining why the security guard or cafeteria worker, or maybe the receptionist, has to be.”
Typically, the first legal recourse for a transgender employee who believes he or she has been the victim of discrimination is to file a grievance with any applicable labor union, or to lodge a complaint with the EEOC, Visconti said.
Most school districts, however, are likely to try to settle the matter before the employee lodges a complaint.
In the case of private schools that may start hemorrhaging money if parents who object to a transgender teacher are pulling their children out of school, one remedy is to try to pay out the teacher’s contract in exchange for his or her departure.
“Don’t force the person out, buy her out,” Brody said. “If she signed off on a settlement that the school is going to pay her ‘X’ dollars and she waives her right to sue, you’d probably be fine, especially if you give her a little more [money] than the contract” dictates.
If a teacher refuses to go, however, and a school suspends or fires him or her, “that teacher absolutely has a sex discrimination case,” he said. “The EEOC will back that up and a number of courts will. It has not been the uniform case throughout the nation, but it seems to be going that way.”
Some schools might choose to go to court, relying on the argument that the institution would be financially destroyed by keeping the teacher on board, or that schoolchildren would be psychologically harmed. Even those arguments are shaky, Brody said, because they’ve been used before—unsuccessfully—when white parents objected to school integration in the 1960s, or when exclusive membership groups argued that the organizations would flounder if black members were admitted.
“The first time we integrated a school or country club, everyone heard the same arguments. In the case of schools, white kids used to get confused when they saw an African-American teacher because they’d never been exposed to one before. Today, it’s not going to get us anywhere by saying kids are confused because this biological male is looking very female. And if the school says, ‘We’ll go out of business if we integrate with transgender people,’ I have a feeling the courts would reject that argument.”
Dana Wilkie is an online editor/manager for SHRM.
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