An Important Court Ruling

I read many news articles and I follow a number of blogs gleaming nuggets to write about each day. One of the blogs that I follow is the Connecticut Employment Law Blog and the other day they had a post about the U. S. District Court of Connecticut ruling on a case. The court has allowed the Title VII case of a trans woman to proceed. The incident of discrimination against the trans woman was before the Connecticut gender inclusive non-discrimination law was passed. Mr. Schwartz writes in his blog,

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.

In the court’s decision the case was about,

II. Background
Deborah Fabian is an orthopedic surgeon and a transgender woman. She alleges that she was very nearly hired by the Hospital of Central Connecticut (“HCC” or the “Hospital”) as an on-call orthopedic surgeon for its Emergency Department, albeit with the involvement of a third party provider of physicians and management services—Delphi Healthcare Partners, Inc. (“Delphi”)—that the Hospital used as a means to find physicians. Fabian entered the hiring process with Delphi and subsequently went to interview at HCC believing that she was all but hired. At that time, she was publicly presenting as male and was known as David Fabian; she informed her interviewers at the end of her interview, however, that she is a transgender woman and transitioning to presenting as female, and that she would work at the hospital as Deborah Fabian. She subsequently learned that she would not be hired, and she alleges that she would have been except for her disclosure of her identity as a transgender woman. She alleges that the interview was barely more than a formality, that she had already been told she would get the job, that she had already been given a contract with a start date (which she executed and returned), and that it was in reliance on that reasonable understanding that she and her wife sold their home in Massachusetts.

This sounds like what happened to Diane Schroer’s case against the Library of Congress in 2008, where she was hired and then immediately fired when she said she was going to transition.

In the Fabian v. Hospital of Central Connecticut case the judge writes about the Supreme Court Price Waterhouse v. Hopkins case, the judge goes on to say,

IV. Conclusion
Employment discrimination on the basis of transgender identity is employment discrimination “because of sex” and constitutes a violation of Title VII of the Civil Rights Act.

HCC has not shown that the position Fabian sought is as a matter of law beyond the scope of Title VII as a result of being for an independent contractor rather than an employee. And Fabian has met her burden under McDonnell Douglas to make a prima facie case of discrimination and to proffer sufficient evidence for a reasonable jury to find that the non-discriminatory reasons HCC offers for not hiring her are pretextual. Whether the Hospital discriminated against Deborah Fabian on the basis of her gender identity is a question for a jury. Because she has proffered sufficient evidence for a reasonable jury to find that it did, the defendant’s motion for summary judgment is denied.

Note, this only allows the case to proceed; she still has a long way to goes to win her case. The judge notes,

The decision about employee status in a failure-to-hire case like this one may be even harder than in other cases of staff physicians suing hospitals, because the physician never started work and some of the dynamics that would have obtained are therefore less apparent.

So she has an uphill battle to win her case.