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Transsexual discrimination #33
by Ross Runkel at LawMemo
The law on discrimination against transsexuals is changing.
A transsexual is a person whose gender identity does not match the sex that was assigned at birth. Some transsexuals get medical treatment (surgery or hormones or both) in order to bring their body into alignment with their gender identity.
Title VII:
Title VII forbids discrimination "because of sex," and one legal question is whether this forbids discrimination because a person is a transsexual.
The bulk of the courts to address this issue hold that Title VII does not forbid discrimination because of transsexuality because that's not discrimination "because of sex."
A recently-developed theory discussed in some cases is that transsexuals are victims of "sexual stereotyping" as discussed in Price Waterhouse v. Hopkins, 490 US 228 (1989). The difficulty with this theory is that a person who came into life identified as female and is now male often acts in a typical male fashion, so there really is no "sexual stereotyping" involved.
A third theory is that transsexuals simply are being discriminated against "because of sex." This theory is new, not well developed, and has not been used by many courts. One example is Schroer v. Billington (D DC 03/31/2006).
I've suggested a fourth theory: I reason by analogy to religion discrimination. If an individual changes from being a Mormon to being a Baptist, and that's the reason the person gets fired (or not hired), then I think that would be a clear-cut case of discrimination "because of religion." If someone changes from being a man to being a woman, and that's the reason the person gets fired (or not hired), then that should constitute discrimination "because of sex." I don't know of any courts that have adopted this idea, and I can't figure out why.
The Americans with Disabilities Act (ADA):
The ADA, which protects against discrimination because an individual's disability, specifically excludes protection from discrimination on the basis of being a transsexual, or having a gender identity disorder or sexual behavior disorder.
State laws:
The laws of some states and some local governments do provide protection against transsexual discrimination.
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Sexual orientation Discrimination #32
by Ross Runkel at LawMemo
"Sexual orientation" refers to one's status as a heterosexual, homosexual, or bisexual.
Title VII does not prohibit discrimination because of an individual's sexual orientation. Although Title VII prohibits discrimination because of sex, the word sex is interpreted as meaning gender (that is, being male or being female), and has nothing to do with sexuality or sexual conduct. This same idea is extended to discrimination because an individual is a transsexual or transvestite.
Sexual harassment can violate Title VII. Although most sexual harassment involves a male and a female, same-sex harassment is also illegal if it takes place because of sex (meaning gender). It should not matter that the victim (or the perpetrator) is heterosexual or homosexual, so long as the harassment is because of the victim's sex.
Title VII has been interpreted as barring employers from relying on "sexual stereotypes" such as a woman being too macho or too aggressive, when men are allowed to be that way.
Also, homosexuals, heterosexuals, and bisexuals alike enjoy the same protections against discrimination because of their sex, race, religion, national origin, disability, age, and so on.
The Americans with Disabilities Act (ADA), which protects against discrimination because an individual's disability, specifically excludes protection from discrimination on the basis of being a homosexual, bisexual, transvestite, transsexual, or having a gender identity disorder or sexual behavior disorder.
State laws: Although federal law provides no protection against discrimination because of sexual orientation, the laws of some states and some local governments do provide such protection. Some of these laws are similar to Title VII and prohibit employers from discriminating because of sexual orientation. Some of these laws require employers to provide employees' domestic partners with the same benefits (such as health insurance) that are provided for spouses. Some do both.
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Remedies for Discrimination #31
by Ross Runkel at LawMemo
The remedies that are available in an employment discrimination case will depend on (1) the facts of the case and (2) the statute involved.
Make whole relief. In general, the idea will be to provide "make whole" relief, which essentially means to put the plaintiff back into the situation she would have been in if the discrimination had not occurred.
Reinstatement and hiring. If the plaintiff was discharged unlawfully, the court should order her to be reinstated, with no loss of seniority. If the employer unlawfully refused to hire her, the court should order that she be hired, and credited with the seniority she would have earned if she had been hired earlier. If there truly is no vacancy, then the court will order "front pay" instead of reinstatement or hiring. The amount of front pay will be based on an estimate of how much she would have earned in the future.
Back pay. The court will order payment of back pay from the date of discrimination to the date of the court judgment. In order to make the plaintiff whole, this will include wages, probable overtime payments, sick leave, vacation, pension benefits, health insurance, and anything else that has a monetary value. The court will then reduce that amount by the amount that the plaintiff earned (or with reasonable effort should have earned) during the same period of time.
Compensatory damages are available in cases arising under Title VII (discrimination because of race, sex, national origin, religion) and the Americans with Disabilities Act (ADA), but not the Age Discrimination in Employment Act (ADEA). This will include things that are somewhat imprecise and don't always have a clear monetary value such as humiliation, emotional distress, inconvenience, loss of reputation.
Punitive damages are available in cases arising under Title VII (discrimination because of race, sex, national origin, religion) and the Americans with Disabilities Act (ADA), but not the Age Discrimination in Employment Act (ADEA). These damages are designed to punish past wrongdoing and deter future wrongdoing, and the plaintiff must prove that the employer acted with "malice" or in reckless disregard for federally protected legal rights. There are lots of detailed rules about exactly how and when an employer can be required to pay punitive damages, as well as rules as to how much these damages can be.
Caps on damages. Most federal statutes have caps (upper limits) on how many dollars can be recovered for compensatory damages and punitive damages. These caps range from $50,000 to $300,000 (based on the compensatory and punitive damages combined), depending on how many employees an employer has. Two forms of damages are excluded from the caps: back pay and front pay.
Liquidated damages. Three statutes allow a court, in specific circumstances, to award liquidated damages equal to the amount of back pay: Equal Pay Act, Age Discrimination in Employment Act (ADEA), Family and Medical Leave Act (FMLA).
Attorney fees. A prevailing plaintiff can recover attorney fees under Title VII, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA). In addition, prevailing parties recover "costs" which include filing fees, transcripts, and other items.
Coming next: Discrimination because of sexual orientation #32: Employment Law 101
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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