Taryn Phaneuf Apr. 18, 2016, 10:42am


HARTFORD, Conn. (Legal Newsline) — Over the last decade, federal courts and a federal agency have agreed that a law protecting people from sex discrimination also includes discrimination based on a person’s gender identity or transition from one gender to the other.

In Fabian v. Hospital of Central Connecticut, decided in March, those previous decisions led federal Judge Stefan Underhill, of the district of Connecticut, to conclude that a claim made by an orthopedic surgeon and transgender woman against the hospital could proceed under Title VII of the Civil Rights Act, which prohibits sex discrimination.

In the lawsuit, Dr. Deborah Fabian claimed she “was very nearly hired” by the Hospital of Central Connecticut as an on-call orthopedic surgeon. During an interview that she considered a formality, she disclosed that she is transgender and, though she presented as male at the time, she would transition to presenting as female by the time she began work at the hospital.

Later, the hospital declined to hire her. Fabian alleges the decision was made because she is transgender.

While the suit raises questions about whether Fabian’s position constituted an employee or a contractor because her employment would have been through a third-party employment agency, the Title VII claims took center stage.

In his decision, Underhill explained that “sex” discrimination in federal law is broader than “discrimination against women because they are women and ... men because they are men.” It includes discrimination based on the characteristics by which people are categorized as male or female.

Backed by precedent, Underhill determined that sex discrimination includes discrimination on the basis of gender stereotyping and gender identity.

The Second Circuit hasn't decided this issue, yet.

While the Ninth, Sixth and Eleventh circuits, along with the Equal Employment Opportunity Commission, have each recognized that discrimination based on a person’s transgender identity constitutes sex discrimination, other circuits have ruled the opposite.

Such a split means the issue will likely reach the U.S. Supreme Court, which considers that as a factor when it decides which cases to hear, Professor Arthur Leonard of the New York School of Law told Legal Newsline.

“I think we need a Supreme Court decision to set a national standard,” said Leonard, who founded The LGBT Bar Association of Greater New York.

Discrimination claims like this one may be more frequent — or they may be simply getting more attention — because of a few factors, Nathaniel Glasser, an employment attorney at Epstein Becker Greene in Washington D.C., told Legal Newsline.

Those factors include the LGBT movement and public support for LGBT issues, the Supreme Court’s marriage equality decision and legislation on the state-level that prohibits discrimination based on sexual orientation and gender identity.

Additionally, EEOC is taking more action after expanding its definition of sex discrimination, he said.

“I do believe these cases will inspire more claims,” he added.

As he counsels employers on matters like this, Glasser said he first advises them to be compliant with state and local law. At least 21 states and D.C. have laws protecting sexual orientation. Most of those laws include protections for gender identity.

“I advise employers that don’t operate in those jurisdictions to extend those protections to their employees because, from a practical perspective, it fosters a better and more welcoming office environment and, from a legal perspective, prevents against discrimination claims filed under the broader interpretation of federal law,” he said.

“It’s best for employers to proactively create a healthy work atmosphere and deter any such claims than have to react to defend them later.”

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