In an decision of first impression in Connecticut, a federal court on Friday ruled that a transgender discrimination claim based on a failure to hire can proceed under both Title VII and Connecticut’s counterpart, CFEPA.
While the groundbreaking decision in Fabian v. Hospital of Central Connecticut (download here) is sure to be the subject of discussion, as the court notes, Connecticut has — in the interim — passed a state law explicitly prohibiting discrimination on the basis of gender identity. Thus, for a few years now, Connecticut has already explicitly prohibited transgender discrimination under state law. (The case was based on facts that occurred before passage of the state’s anti-discrimination law.)
But the decision obviously goes further than that and takes up the logic advanced by the EEOC and others of late — namely that Title VII’s prohibition of discrimination “because of…sex” should be read to include transgender discrimination. The court’s opinion should be mandatory reading not only in the state, but for practitioners nationwide faced with similar claims.
The decision addresses the notion of gender-stereotyping discrimination noting that such discrimination is sex discrimination “per se”. In the court’s view, the Supreme Court’s decision years ago in Price Waterhouse has led to a “significant shift in the direction of decisions examining alleged discrimination on the basis of transgender identity”.
In doing so, the court notes the split in the circuits that has been developing, even though the Second Circuit hasn’t truly spoken yet on the issue:
In sum, discrimination on the basis of transgender identity is now recognized as discrimination “because of sex” in the Ninth Circuit (as Schwenk recognized the abrogation of Holloway), the Sixth Circuit (as recognized in Smith), and in the Eleventh Circuit (as recognized in Glenn); and the E.E.O.C. (in Macy) and has agreed with that authority. Discrimination on the basis of transgender identity is regarded as not constituting discrimination “because of sex” in the Tenth Circuit (under Etsitty). The continued vitality the pre–Price Waterhouse decisions in the Seventh and Eighth Circuits (Ulane II & Sommers, respectively) is unclear.
Judge Underhill, who penned the decision, then goes on to discuss the language of “because of…sex” found in the statute itself. He notes that:
discrimination on the basis of gender stereotypes, or on the basis of being transgender, or intersex, or sexually indeterminate, constitutes discrimination on the basis of the properties or characteristics typically manifested in sum as male and female — and that discrimination is literally discrimination “because of sex.”
On the basis of the plain language of the statute, and especially in light of the interpretation of that language evident in Price Waterhouse’s acknowledgement that gender-stereotyping discrimination is discrimination “because of sex,” I conclude that discrimination on the basis of transgender identity is cognizable under Title VII.
For employers in Connecticut, this decision is likely to be closely followed by other federal courts in Connecticut. Judge Underhill is well-regarded and until this decision gets reviewed by the Second Circuit, it’s hard to see how other judges in Connecticut will decline to follow it.
In other words, employers in Connecticut should be alert that a plaintiff may make a gender identity claim under Title VII in Connecticut.
But, as I noted at the top, this decision’s impact in Connecticut may be more muted because Connecticut has now explicitly protected gender identity in the state’s anti-discrimination statutes.
Nevertheless, the decision is an important one to read in the field of gender identity claims.