Wednesday, June 21, 2006
Transgender Employment Discrimination Suits Increase Nationally
Published on Law.com
By Marie-Anne Hogarth
The Recorder04-25-2006
In what appears to be part of a new wave of employment discrimination suits involving transgenders, San Francisco attorney Waukeen McCoy is suing an international engineering firm on behalf of a 44-year-old pre-operative female who was forced out of her job.
Danielle Ryan worked as an IT systems analyst with Parsons Brinckerhoff in Sacramento for a decade before she began her shift from male to female, the suit alleges.
After she began taking hormones and coming to work in woman's clothing, she was harassed by co-workers and superiors, who asked her to bare her breasts and compared her to Klinger, a character from the television program "MASH." The company demoted her to part-time status and ultimately forced her out, according to the lawsuit.
The suit filed in Sacramento County Superior Court last month is the latest to take advantage of a 2004 amendment to California's Fair Employment and Housing Act that explicitly protects transgender employees. At least four similar cases have settled in California.
And nationally, transgenders are having more luck making their case in federal court under Title VII.
"I do think there is a momentum building and that I will get more clients like Ms. Ryan," says McCoy. "I've gotten a few calls since the case was filed. I think people are being educated by this case."
Fernando Gaytan, an associate with Hadsell & Stormer in Pasadena, Calif., said his firm has settled two cases this year that were filed under the new provisions of the California Fair Employment and Housing Act.
In one case, a company refused a transgender female a job with a construction company, though they had previously offered her a position when she was a male. And in the second case, a transgender female in the service industry experienced harassment and was forced to resign after working at the same job for years.
"We are receiving calls as people learn that we have handled these cases," says Gaytan.
Gloria Allred, who represented the family of slain transgender teen Gwen Araujo, says her firm settled one of these employment discrimination cases this year.
"I do think individuals who suffer from transgender discrimination are more aware of their rights than they used to be and more willing to express their rights," Allred said.
At the Transgender Law Center in San Francisco, director Christopher Daley agrees courts are increasing protections for transgender people under existing language.
At the end of March, for instance, a federal district court in Washington D.C. allowed a suit brought on behalf of transgender U.S. Army veteran Diane Schroer to go forward. The American Civil Liberties Union filed the suit claiming the Library of Congress unlawfully refused to hire her.
Two similar suits filed in federal district court in Ohio ended up in the 6th U.S. Circuit Court of Appeals, Daley said. After that court allowed the cases to proceed, they both settled. Another case filed in district court in Utah wasn't allowed to go ahead, though.
"More and more people are transitioning at work and are seeking remedy when they are being discriminated against," says Daley. "I really think we are seeing the start of these cases."
Because many parts of the country lack the resources to serve these clients, many transgender people might not know they have recourse under the law. "It really is an emerging area of the law," says Daley.
And apparently, both plaintiff and defense lawyers are learning about it. Daley says his seminars on preventing discrimination are attended by a healthy mix of both types of lawyers. And while lawyers at big defense firms might not be handling these cases yet, they're certainly helping clients update their workplace policies and undergo trainings.
"We talk about the importance of not kidding," says Melinda Riechert, a partner at Morgan, Lewis & Bockius. "People tend to be defensive and deal with it by kidding.
"My aunt's accountant went from male to female," Riechert recalls. "She had a hard time with it because she was an old lady and had to get used to it."
Those lawyers who do take on cases on behalf of transgenders say more work often follows. Still, plaintiffs lawyers say the lack of data regarding settlement amounts makes negotiations difficult.
Heather Borlase, of Bayer & Borlase, encountered this in settling a case on behalf of an employee at the UC-San Francisco, who was treated differently after her supervisor learned she had transitioned from male to female.
Also, lawyers didn't know of any transgender cases that actually went to trial. That has many of them mystified as to how their cases would play out before a jury.
"You might really have to educate a jury," says Borlase. "Although the protection is there, people have to come to a place in their lives where they see this is a protected class."
Meanwhile, McCoy plans on using all the weapons in his arsenal to represent Danielle Ryan. In addition to filing a lawsuit, he has lodged a complaint with the San Francisco Human Rights Commission since Ryan's employer, Parsons Brinckerhoff, has a $14.6 million contract with the city doing work on Doyle Drive, part of the Golden Gate Bridge project.
The defense has not yet answered the complaint, and Carolyn Burnette, a partner at Jackson Lewis, which represents Parsons, declined comment. ¶ 7:32 PM
By Marie-Anne Hogarth
The Recorder04-25-2006
In what appears to be part of a new wave of employment discrimination suits involving transgenders, San Francisco attorney Waukeen McCoy is suing an international engineering firm on behalf of a 44-year-old pre-operative female who was forced out of her job.
Danielle Ryan worked as an IT systems analyst with Parsons Brinckerhoff in Sacramento for a decade before she began her shift from male to female, the suit alleges.
After she began taking hormones and coming to work in woman's clothing, she was harassed by co-workers and superiors, who asked her to bare her breasts and compared her to Klinger, a character from the television program "MASH." The company demoted her to part-time status and ultimately forced her out, according to the lawsuit.
The suit filed in Sacramento County Superior Court last month is the latest to take advantage of a 2004 amendment to California's Fair Employment and Housing Act that explicitly protects transgender employees. At least four similar cases have settled in California.
And nationally, transgenders are having more luck making their case in federal court under Title VII.
"I do think there is a momentum building and that I will get more clients like Ms. Ryan," says McCoy. "I've gotten a few calls since the case was filed. I think people are being educated by this case."
Fernando Gaytan, an associate with Hadsell & Stormer in Pasadena, Calif., said his firm has settled two cases this year that were filed under the new provisions of the California Fair Employment and Housing Act.
In one case, a company refused a transgender female a job with a construction company, though they had previously offered her a position when she was a male. And in the second case, a transgender female in the service industry experienced harassment and was forced to resign after working at the same job for years.
"We are receiving calls as people learn that we have handled these cases," says Gaytan.
Gloria Allred, who represented the family of slain transgender teen Gwen Araujo, says her firm settled one of these employment discrimination cases this year.
"I do think individuals who suffer from transgender discrimination are more aware of their rights than they used to be and more willing to express their rights," Allred said.
At the Transgender Law Center in San Francisco, director Christopher Daley agrees courts are increasing protections for transgender people under existing language.
At the end of March, for instance, a federal district court in Washington D.C. allowed a suit brought on behalf of transgender U.S. Army veteran Diane Schroer to go forward. The American Civil Liberties Union filed the suit claiming the Library of Congress unlawfully refused to hire her.
Two similar suits filed in federal district court in Ohio ended up in the 6th U.S. Circuit Court of Appeals, Daley said. After that court allowed the cases to proceed, they both settled. Another case filed in district court in Utah wasn't allowed to go ahead, though.
"More and more people are transitioning at work and are seeking remedy when they are being discriminated against," says Daley. "I really think we are seeing the start of these cases."
Because many parts of the country lack the resources to serve these clients, many transgender people might not know they have recourse under the law. "It really is an emerging area of the law," says Daley.
And apparently, both plaintiff and defense lawyers are learning about it. Daley says his seminars on preventing discrimination are attended by a healthy mix of both types of lawyers. And while lawyers at big defense firms might not be handling these cases yet, they're certainly helping clients update their workplace policies and undergo trainings.
"We talk about the importance of not kidding," says Melinda Riechert, a partner at Morgan, Lewis & Bockius. "People tend to be defensive and deal with it by kidding.
"My aunt's accountant went from male to female," Riechert recalls. "She had a hard time with it because she was an old lady and had to get used to it."
Those lawyers who do take on cases on behalf of transgenders say more work often follows. Still, plaintiffs lawyers say the lack of data regarding settlement amounts makes negotiations difficult.
Heather Borlase, of Bayer & Borlase, encountered this in settling a case on behalf of an employee at the UC-San Francisco, who was treated differently after her supervisor learned she had transitioned from male to female.
Also, lawyers didn't know of any transgender cases that actually went to trial. That has many of them mystified as to how their cases would play out before a jury.
"You might really have to educate a jury," says Borlase. "Although the protection is there, people have to come to a place in their lives where they see this is a protected class."
Meanwhile, McCoy plans on using all the weapons in his arsenal to represent Danielle Ryan. In addition to filing a lawsuit, he has lodged a complaint with the San Francisco Human Rights Commission since Ryan's employer, Parsons Brinckerhoff, has a $14.6 million contract with the city doing work on Doyle Drive, part of the Golden Gate Bridge project.
The defense has not yet answered the complaint, and Carolyn Burnette, a partner at Jackson Lewis, which represents Parsons, declined comment. ¶ 7:32 PM
