Firing Someone for Not Acting Enough Like a Man Is Discrimination

By Donna Eich Brooks

The headline of this article was worded very specifically. You may have seen write-ups on a recent opinion from the U.S. Court of Appeals for the Eleventh Circuit (the federal appeals court for Alabama, Florida, and Georgia) that announced some seismic shift in the law like “Transgendered persons protected from discrimination” or “Getting a sex change is now protected.” Racy headlines are good for drawing attention. But in this case, it’s important to focus on what the decision really stands for: You are on dangerous ground when you start trying to mandate how femininely or masculinely someone should act.

To Everything There Is a Season . . .

Vandiver Elizabeth Glenn (although her name changes throughout her story, we’ll refer to her as “Glenn”) was born a biological male named Glenn Morrison. From the time he hit puberty, Glenn felt he was a woman, and in 2005, he was diagnosed with gender identity disorder. That same year, he started taking steps to transition from male to female under medical supervision.

The process of transitioning included living as a woman outside the workplace before sex reassignment surgery could be performed. In October 2005, Glenn (who appeared male and in fact was male at the time) was hired as an editor by the Georgia General Assembly’s Office of Legislative Counsel (OLC). The head of the OLC was Sewell Brumby (whose name sounds like a character in a movie ― we can’t really bring ourselves to call him just “Brumby” because it seems to lose something).

In 2006, Glenn informed his direct supervisor that he was a transsexual and was in the process of becoming a woman. For Halloween that year, OLC employees were allowed to wear costumes to work, and Glenn came dressed as a woman. When Sewell Brumby saw Glenn, he said the costume wasn’t appropriate and sent him home.

In explaining his reaction to Glenn, Sewell Brumby was nothing if not direct; he never tried to cloud his opinions with bothersome finesse or subtlety. He explained that Glenn’s appearance was inappropriate “because he was a man dressed as a woman and made up as a woman” and further explained that “it’s unsettling to think of someone dressed in women’s clothing with male sexual organs inside that clothing.” (At that point, we might stop to wonder why Sewell Brumby was so preoccupied with such a thought.) Ultimately, he declared that a man in women’s clothing is “unnatural.”

After the ill-fated Halloween costume incident, Sewell Brumby discussed the costume with Glenn’s supervisor, who told him that Glenn intended to undergo gender transition. We’re guessing that probably surprised Sewell Brumby quite a bit and gave him some more stuff to think about.

In the fall of 2007, Glenn informed her supervisor that she was ready to proceed with gender transition, she would begin coming to work as a woman, and she was changing her legal name. The supervisor told Sewell Brumby, who subsequently terminated Glenn because the intended transition “was inappropriate” and would “be disruptive [and] some people would view it as a moral issue, and that it would make Glenn’s coworkers uncomfortable.”

And . . . There’s Your Lawsuit

Glenn sued, alleging two claims of discrimination under the Equal Protection Clause of the U.S. Constitution. She first claimed sex discrimination based on Sewell Brumby’s decision to fire her because she failed to conform to the sexual stereotypes associated with the gender he perceived her to be. Second, she claimed that he discriminated against her based on her medical condition.

First let’s discuss what kind of lawsuit this wasn’t. Note that there were no claims under Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act (ADA). Those are the types of claims you’d usually expect to see in employment-law situations. In this case, however, Glenn was a state employee, and the law on how to sue states is annoyingly complicated ― so much so that we won’t get into it here. It’s enough to just recognize that she had to file a different kind of claim than most of your employees would file, and that’s worth remembering as we discuss this case. The legal analysis of an equal protection claim isn’t exactly the same as the analysis of a Title VII claim, but there sure are a lot of similarities.

Court’s Decision Was Actually Fairly “Old School”

The Eleventh Circuit held that Sewell Brumby, by discriminating against Glenn on the basis of her gender nonconformity, had violated the Equal Protection Clause’s prohibition against discrimination. Despite its seeming “trailblazer” status, this case really isn’t that earth- shattering. The court relied heavily on an old and often-cited U.S. Supreme Court case from 1989: Price Waterhouse v. Hopkins.

In that case, a senior manager at Price Waterhouse was denied partnership in the firm because she was considered “macho.” She was advised that to increase her chances for promotion, she should walk more femininely, wear makeup, get her hair styled, and wear jewelry. She won her case when the Supreme Court found those comments to be indicative of gender discrimination and held that Title VII bars not only discrimination because of biological sex but also gender stereotyping when an employer penalizes someone for failing to appear and act according to expectations defined by gender. So when you look at the Price Waterhouse decision, the result in this case really isn’t surprising: Sewell Brumby clearly linked Glenn’s termination to his personal disgust that she was acting outside of how he perceived her gender would dictate.

Also, even though this case wasn’t a Title VII case, all you have to do is read some of the passages from the court’s opinion to realize how its holding can easily carry over to Title VII opinions:

• “Discrimination against a transgender individual because of her gender-nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender.”

• “All persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype.”

Had Glenn filed a disability discrimination claim under the ADA, the court would have had to address the Act’s provision that the term disabled “shall not apply to an individual solely because that individual is a transvestite,” and the Act’s regulations state that disability doesn’t include “transvestism,” “transsexualism,” or “gender identity orders not resulting from physical impairments, or other sexual behavior disorders.” So the court saved the untangling of that knot for another day.

What If You Were Sewell Brumby?

We’ve actually walked some clients through the process when an employee has declared his intent to undergo gender transition. There’s no question that it’s a tricky path to negotiate, but it can be done relatively smoothly. The “bathroom question” is one of the primary concerns employers have ― Sewell Brumby gave some lip service to having that concern, but he was too explicit in his real reasons for terminating Glenn to convince anyone he was really concerned about bathrooms.

It is a quandary, though: Will our female employees feel safe in a bathroom with someone who was formerly male (and may currently still be,in an anatomical sense), and will our male employees feel OK in a bathroom with someone who could be transitioning to female? Single- occupancy restrooms provide an easy answer for employers because they don’t allow more than one person to be in the bathroom at the same time. In fact, the court noted that Sewell Brumby’s bathroom concern had no real merit because the OLC had only single-occupancy restrooms.

If you don’t have single-occupancy restrooms, then coming up with a plan is going to involve discussions with the employee in anticipation of the transition. In fact, your whole plan about how to proceed should start with having a frank and respectful discussion with the employee about how she hopes the transition will proceed, what she would like communicated to other employees (and the scope of that communication), and whether she has any concerns. You may want to have meetings at which different levels of information are communicated to employees depending on their need to know and their level of involvement with the transitioning employee.

Overall, your safe zone is to focus on the job and make job-related decisions. In this case, Sewell Brumby focused on his own personal disgust (and the troubling image of male genitalia under a skirt that was apparently replaying in his head) instead of acknowledging his personal reactions and then moving on to an objective analysis of what the real work-related issues might (or might not) be. The clients we’ve worked with have found that the process evolved rather uneventfully, much to their surprise. But that was likely due to some good discussions, planning, and education, all conducted proactively as soon as the transition issue was raised.

Donna Eich Brooks is a shareholder in the Birmingham, Alabama, office of Lehr Middlebrooks & Vreeland, P.C. and contributor to Alabama Employment Law Letter. She may be contacted at dbrooks@lehrmiddlebrooks.com.

Learn how to legally accommodate transgender employees and how to avoid claims of workplace harassment and discrimination with the HR Hero audio conference, Transgender Employees: Overcoming Practical and Legal Issues on CD. For more information, call (800) 274-6774 or go to http://store.hrhero.com/transgender-employees-cd.