December 7, 2011
By Scott T. Silverman and Kimberly A. Lopez
REPRINT FROM JD SUPRA
In a decision issued on December 6, 2011, the Eleventh Circuit Court of Appeals (which
has jurisdiction over Florida) has ruled that an employer may not discriminate against a
transgender employee on the basis of gender non-conformity. That case, Vandiver
Elizabeth Glenn v. Sewell R. Brumby, -- F. 3d -- , 2011 WL 6029978 (December 6,
2011) (11th Cir. 2011), makes clear that employers can be liable for sex or gender discrimination in taking adverse action against a transgender or transsexual, as with any
employee, on the basis of the employee's failure to comply with gender-based
behavioral norms and gender stereotypes.
The Plaintiff in Glenn was born a biological male, and in 2005 was diagnosed with
Gender Identity Disorder ("GID"). Starting in 2005, Glenn began taking steps to
transition from male to female. In 2006, Glenn advised her direct supervisor that she
was a transsexual and in the process of becoming a woman. After Glenn advised her
supervisor in 2007 that she was ready to proceed with gender transition and would
begin coming to work as a woman, Defendant Brumby terminated Glenn because
"Glenn's intended gender transition was inappropriate, that it would be disruptive, that
some people would view it as a moral issue, and that it would make Glenn's coworkers
uncomfortable." Brumby testified in his deposition that he fired Glenn because he
considered it "inappropriate" for her to appear at work dressed as a woman and that he found it "unsettling" and "unnatural" that Glenn would appear in woman's clothing.
Brumby further admitted that his decision to fire Glenn was based on "the sheer fact of
the transition."
Glenn sued Brumby seeking relief for sex discrimination. The trial court entered
summary judgment in Glenn's favor. On appeal, the Eleventh Circuit affirmed, relying on
the Supreme Court decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which found that discrimination on the basis of gender stereotype is sex-based
discrimination.
The Eleventh Circuit explained that "[a] person is defined as transgender precisely
because of the perception that his or her behavior transgresses gender stereotypes."
Because the case law already established that gender stereotype discrimination is
prohibited, the Court held that discrimination against a transgender or transsexual
individual because of her gender-nonconformity is clearly sex discrimination whether it
is described as being on the basis of sex or gender. Brumby's deposition testimony
provided direct evidence that he acted on the basis of Glenn's gender non-conformity,
which mandated summary judgment for Glenn.
Although the case dealt with claims under the Constitution, the decision clearly applies
to sex discrimination charges against private employers under Title VII. As such,
employers should ensure that workplace policies protect against transgender
discrimination. In addition, the decision reinforces that employers must prohibit
discrimination against any employee on the basis of gender stereotypes and genderbased behavioral norms.
This Akerman Practice Update is intended to inform firm clients and friends about legal
developments, including recent decisions of various courts and administrative bodies.
Nothing in this Practice Update should be construed as legal advice or a legal opinion, and
readers should not act upon the information contained in this Practice Update without
seeking the advice of legal counsel. Prior results do not guarantee a similar outcome.
Akerman Senterfitt, Akerman Senterfitt LLP, Attorneys at Law
akerman.com | Disclaimer
If you are seeking an Executive Coach for yourself or your organization, consider contacting CB Bowman, MBA, CMC at Executive Leadership, LLC 908.509.1744 cb@exec-leadershipllc.com; http://www.exec-leadershipllc.com.
CB Bowman, ia a Certified Master Coach and president, CEO of Executive Leadership, LLC. She is also the Chairperson and Founder for the Association of Corporate Executive Coaches (http://www.acec-website.org).
Among mid to senior level professionals Executive leadership LLC is the go to company for individuals and companies seeking human capital repositioning, development and/or growth through coaching, counseling, and strategic advice.
With her Fortune 500 business background, laser like precision, and a take no prisoners approach she swiftly narrows in on the issue, and unlike others, she presents financially sound, creative and action oriented solutions with infinite possibilities.
