Transgender Applicant Wins Discrimination Suit
An applicant who was denied a job after disclosing that he was in the process of becoming a woman won a discrimination lawsuit against the Library of Congress.
The Facts
David Schroer served in the U.S. Army for twenty-five years, including a stint as a Special Forces Commander leading a team that tracked international terrorists. After retiring as a colonel in 2004, Schroer applied for a terrorism and international crime research position at the Library of Congress.
According to Schroer's attorney, Schroer received the highest interview score of all the candidates who applied for the position. He was offered the job in December 2004.
Before starting the job, Schroer had lunch with his new boss, Charlotte Preece. During lunch, Schroer disclosed that he was transitioning to become a woman named Diane. Schroer testified that after the disclosure Preece said, "Well, you've given me a lot to think about. I'll be in touch."
Preece then put a halt to the processing of Schroer's employment documentation. She then allegedly expressed concern about whether Schroer's "transitioning" would be a distraction and whether it would negatively affect his/her security clearance, contacts within the Army and intelligence community and ability to credibly represent the Library before Congress.
The next day, Preece called Schroer to inform him that the Library was withdrawing the job offer. Preece allegedly told Schroer that "after a long and sleepless night, based on our conversation yesterday, I've determined that you are not a good fit, not what we want." Preece then filled the position with a male applicant who had a lower interview score than Schroer.
Schroer sued, claiming gender discrimination in violation of Title VII.
The Trial
In defending the Library, the Justice Department argued that Title VII neither protects transsexuals nor prohibits gender identity discrimination. They argued that the Library had legitimate nondiscriminatory reasons for revoking the job offer, including the security clearance and distraction concerns cited by Preece.
Schroer's attorneys argued that the reasons offered by the Library were pretextual and that it discriminated against Schroer based on gender stereotypes in violation of Title VII.
While acknowledging that several federal courts have held that Title VII does not protect transgender discrimination, U.S. District Judge James Robertson sided with Schroer. He found "compelling evidence" that the Library's hiring decision was "infected by sex stereotypes."
"The evidence establishes that the Library was enthusiastic about hiring David Schroer -- until she disclosed her transsexuality," the judge stated. "The Library revoked the offer when it learned that a man named David intended to become legally, culturally and physically, a woman named Diane. This was discrimination 'because of . . . sex.'"
An upcoming hearing will determine Schroer's remedies. For the full text of the court's decision, click here. For a video interview with Schroer, click here.
The Lesson
The lesson here is simple. While courts may take different approaches to transgender issues, the safest course is to evaluate ALL candidates based on purely nondiscriminatory job-related criteria.
Article by Mark Toth, Chief Legal Officer of Manpower's North American operations, and courtesy of Manpower Employment Blawg. Mark also serve as Chief Compliance Officer and Vice President of Franchise Relations and serve on our Global Leadership Team, North American Lead Team, Executive Diversity Steering Committee and Sarbanes-Oxley Steering Committee.
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