IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION
No. 5:13-CV-838-BO
XYAIRA LEWIS, )
Plaintiff, )
v. )
HIGH POINT REGIONAL HEALTH SYSTEM, )
Defendant. )
)
BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF AND IN OPPOSITION TO THE MOTION TO DISMISS PLAINTIFF’S COMPLAINT
STATEMENT OF INTEREST
The Equal Employment Opportunity Commission (“EEOC”) is the agency charged by Congress with administering and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”). This case raises the issue of whether, under Title VII, the failure to hire an individual because she is transgender is discrimination “because of … sex.” Here Plaintiff Xyaira Lewis, who is transgender, has alleged that she was not hired because of her sex and gender. Defendant High Point Regional Health System (“High Point”) has filed a motion to dismiss, claiming that discrimination against a transgender individual is not cognizable as sex discrimination under Title VII. High Point’s argument ignores Supreme Court precedent holding that discrimination against an individual because he or she does not conform to gender stereotypes is sex discrimination under Title VII. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). High Point also ignores the numerous court of appeals decisions invoking Price Waterhouse to hold that discrimination against an individual because he or she is transgender is sex discrimination. Because the Court’s ruling implicates the interpretation and effective enforcement of Title VII, we offer our views for the Court’s consideration.
STATEMENT OF THE ISSUE[1]
Is Title VII violated when an employer fails to hire an individual because he or she is transgender?
STATEMENT OF FACTS
In her complaint, Lewis alleges that she is “anatomically a male” but identifies as female. R.1 ¶ 6.[2] She is “currently undergoing hormone replacement therapy in preparation for a sex reassignment surgery.” Id. Lewis has been a Certified Nursing Assistant (“CNA”) since December 12, 2001, and has worked in nursing homes since her certification. Id. at ¶ 7. In February 2012, she applied to High Point for multiple CNA positions. Id. at ¶ 8.
On or around March 2, 2012, Lewis interviewed for two CNA positions with Orthopedic Department Manager, Anne Marie Taylor. Id. at ¶ 10. At the time, Taylor was unaware that Lewis was transgender. Id. at ¶ 12. After the interview, Taylor gave Lewis a tour of the units and introduced her to other employees. Id. at ¶ 10. At that point, Lewis believed she had secured a job, pending her background check results. Id.
High Point asked Lewis to attend another interview, throughout which her interviewers, a group of three CNAs, harassed and ridiculed her about her sex. Id. at ¶ 11.
Around March 5, 2012, Lewis received a call instructing her to return for another interview with Taylor and a Unit Charge Nurse, Janet Beasley. Id. at ¶ 12. Lewis alleges that Taylor was now aware of her gender. Id. During the interview, Taylor and Beasley asked Lewis the same questions that Taylor asked during the March 2nd interview. Id. Neither Taylor nor Beasley took notes of Lewis’ responses. Id. Taylor then informed Lewis that Beasley wanted someone with more experience. Id. Although Lewis had the qualifications for the position of CNA I, she was not hired. Rather, she reports that an individual with less experience was hired for the position. Id. at ¶ 13.
Lewis, acting pro se, filed suit against High Point alleging that High Point failed to hire her because of sex in violation of Title VII. Id. at ¶ 17. Defendant moved to dismiss, arguing that Title VII does not prohibit transgender discrimination. R.14 at 3. Plaintiff opposed the motion, arguing that High Point has conflated sexual orientation with gender identity and that transgender individuals are protected under Title VII. R.20.
ARGUMENT
Title VII makes it unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1).
The Supreme Court has clarified that the phrase “because of ... sex” means “that gender must be irrelevant to employment decisions.” Price Waterhouse v. Hopkins, 490 U.S. 228, 240 (1989). The plaintiff in Price Waterhouse was a female senior manager who was being considered for partnership in an accounting firm. Id. at 232. There was evidence that she was denied partnership because she was considered “not feminine enough” in dress and behavior. Id. at 235. Her evaluators suggested that she could improve her chances for partnership if she were less “macho” and learned to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Id. The Court held that the evaluation amounted to prohibited sex stereotyping, explaining that “[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Id. at 251 (citations omitted). The Court held that Title VII barred not just discrimination because the plaintiff was a woman, but also discrimination based on the employer’s belief that she was not acting like a woman. Id. at 250–51.
After Price Waterhouse, courts have recognized that Title VII’s prohibition on sex discrimination encompasses “discrimination based on the … fail[ure] … to conform to … gender expectations.” Schwenk v. Hartford, 204 F.3d 1187, 1201-02 (9th Cir. 2000) (citing Price Waterhouse, 490 U.S. at 240); see also id. (“under Price Waterhouse, ‘sex’ under Title VII encompasses both sex—that is, the biological differences between men and women—and gender”) (emphasis in original). More to the point, after Price Waterhouse, every court of appeals that has addressed the question has recognized that a transgender plaintiff may state a claim for discrimination because of sex if the defendant’s action was motivated by the plaintiff’s nonconformance with a sex stereotype or norm. See Smith v. City of Salem, 378 F.3d 566, 572-73 (6th Cir. 2004) (holding that an adverse action taken because of transgender plaintiff’s failure to conform to sex stereotypes concerning how a man or woman should look and behave constitutes unlawful gender discrimination); Schwenk, 204 F.3d at 1201-02 (concluding that a transsexual prisoner had stated a viable sex discrimination claim under the Gender Motivated Violence Act because “[t]he evidence offered … show[s] that [the assault was] motivated, at least in part, by Schwenk’s gender – in this case, by her assumption of a feminine rather than a typically masculine appearance or demeanor” and noting that its analysis was equally applicable to claims brought under Title VII); Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011) (stating that “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender”); cf. Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1224 (10th Cir. 2007) (assuming without deciding that Title VII protects “transsexuals who act and appear as a member of the opposite sex”).[3]
In addition, numerous district courts, including one from within the Fourth Circuit, have concluded that transgender discrimination is cognizable under Title VII. See, e.g., Finkle v. Howard Cnty., Md., CIV. JKB-13-3236, 2014 WL 1396386, at *8 (D. Md. Apr. 10, 2014) (holding that an officer’s claim that she was discriminated against because of her transgender status was a “cognizable claim of sex discrimination”); Lopez v. River Oaks Imaging & Diagnostic Grp., Inc., 542 F. Supp. 2d 653, 659-61 (S.D. Tex. 2008) (“Title VII and Price Waterhouse ... do not make any distinction between a transgendered litigant who fails to conform to traditional gender stereotypes and an ‘effeminate’ male or ‘macho’ female who while not necessarily believing himself or herself to be of the opposite gender, nonetheless is perceived by others to be in nonconformity with traditional gender stereotypes.”); Schroer v. Billington, 577 F. Supp. 2d 293, 305-06 (D.D.C. 2008) (“While I would therefore conclude that Schroer is entitled to judgment based on a Price Waterhouse-type claim for sex stereotyping, I also conclude that she is entitled to judgment based on the language of the statute itself.”); Chavez v. Credit Nation Auto Sales, No. 13-cv-00312-WSD, 2014 WL 4585452, at *6 (N.D. Ga. Sept. 12, 2014) (acknowledging that the Supreme Court, several circuits, and several district courts have held that “discrimination against a transgender individual because of her gender non-conformity is sex discrimination, whether it’s described as being on the basis of sex or gender”) (internal citation omitted).[4]
In this case, Lewis has alleged enough “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Lewis has alleged that several interviewers ridiculed her and that the department manager’s attitude toward her changed when she learned Lewis was transgender. These allegations are sufficient to state a Title VII claim. Cf. Estelle v. Gamble, 429 U.S. 97, 106 (1976) (pro se pleadings are to be “liberally construed”).
Further, Lewis need not have specific evidence of gender stereotyping by High Point officials because “consideration of gender stereotypes will inherently be part of what drives discrimination against a transgendered individual.” Macy v. Holder, Appeal No. 0120120821, 2012 WL 1435995, at *8 (EEOC Apr. 20, 2012). As the Eleventh Circuit has emphasized, “[a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. The very acts that define transgender people as transgender are those that contradict stereotypes of gender-appropriate appearance and behavior.” Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011) (citations omitted). Thus, discriminating against an individual because of their transgender status inherently entails sex-based considerations. See Smith, 378 F.3d at 574-75 (“discrimination against a plaintiff who is transsexual-and therefore fails to act and/or identify with his or her gender-is no different from the discrimination directed against Ann Hopkins in Price Waterhouse, who, in sex-stereotypical terms, did not act like a woman.”). Lewis’ allegation that High Point discriminated when it learned she is transgender therefore states a claim for Title VII sex discrimination.
In contending that Lewis’ complaint should be dismissed, High Point argues that transgender discrimination individual is not sex discrimination because “sexual orientation” is not a protected class. High Point relies on case law from multiple circuits that recognize that discrimination on the basis of sexual orientation has not been held actionable under Title VII. However, Lewis is not making a claim based on sexual orientation; she is making a claim based on her transgender status. The two terms are not the same and High Point has improperly conflated them. In its Motion to Dismiss, High Point notes that the term “transgender” is defined as an individual “who identifies with or expresses a gender identity that differs from the one which corresponds to the person’s sex at birth.”[5] In contrast, the same dictionary on which High Point relies defines “sexual orientation” as “the inclination of an individual with respect to heterosexual, homosexual, and bisexual behavior.”[6] The two considerations are independent; transgender individuals can exhibit the full range of possible sexual orientations.[7] Lewis reported being harassed and ridiculed regarding her status as a transgender individual, not her sexual orientation. Thus, whether discrimination on the basis of sexual orientation is covered under Title VII is not the question before this court.
High Point does cite one appellate case for the proposition that transgender discrimination is not encompassed by Title VII. That case, Etsitty v. Utah Transit Authority, 502 F.3d 1215 (10th Cir. 2007), does not stand for such a broad proposition. In fact, while the Etsitty court declined to adopt a per se rule that transgender discrimination always amounts to sex discrimination, the court held it would assume that the plaintiff could establish a claim under the Price Waterhouse theory of gender stereotyping. Id., at 1224 (assuming that Title VII protects “transsexuals who act and appear as a member of the opposite sex.”).[8] Accordingly, no court of appeals decision supports dismissal of this case.
High Point argues that the original purpose of adding “sex” as a prohibited basis for discrimination was to protect women, and that discrimination against a transgender individual therefore cannot be sex discrimination. However, Congress’ original conception of the term “sex” does not limit the statute’s coverage where the plain language indicates broader coverage. In Oncale v. Sundowner Offshore Oil Services, Inc., 523 U.S. 75 (1998), in ruling that same-sex harassment was actionable, the Supreme Court explicitly rejected the notion that Title VII only proscribes types of discrimination specifically contemplated by Congress. Id. at 79-80 (stating that “statutory prohibitions often go beyond the principal evil [they were passed to combat] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed”); see also Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 381 (1977) (“[t]he evils against which [Title VII] is to be aimed are defined broadly.”).
Finally, High Point has posited that the pending status of the Employment Non-Discrimination Act (“ENDA”) indicates that gender identity is not cognizable under Title VII. ENDA has little to no bearing on whether transgender discrimination is actionable under Title VII. The Supreme Court has explained that “subsequent legislative history is a hazardous basis for inferring the intent of an earlier Congress” and is “a particularly dangerous ground on which to rest an interpretation of a prior statute when it concerns a proposal that does not become law.” Pension Benefit Guarantee Corp. v. LTV Corp., 496 U.S. 633, 650 (1990). The Court went on to point out that “Congressional inaction lacks persuasive significance because several equally tenable inferences may be drawn from such inaction, including the inference that the existing legislation already incorporated the offered change.” Id. Cf. Oncale, 523 U.S. at 79-80 (noting that statutory prohibitions often reach further than the principal harms which they were passed to address). Accordingly, the status of ENDA should not impact this court’s decision in the instant case.
CONCLUSION
For the reasons stated above, the EEOC respectfully asks this Court to deny High Point’s motion to dismiss.
Respectfully submitted the 2nd of October, 2014,
P. DAVID LOPEZ
General Counsel
CAROLYN L. WHEELER
Acting Associate General Counsel
JENNIFER S. GOLDSTEIN
Acting Assistant General Counsel
s/Jennifer S. Goldstein
Jennifer S. Goldstein
Acting Assistant General Counsel
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
131 M St. N.E., 5th Floor
Washington, D.C. 20507
(202) 663-4733
Jennifer.goldstein@eeoc.gov
CERTIFICATE OF SERVICE
I, Jennifer S. Goldstein, hereby certify that I electronically filed the foregoing brief with the Clerk of the Court via the CM/ECF system this 2nd day of October, 2014. I also certify that the following counsel of record, who have consented to electronic service, will be served the foregoing brief via the CM/ECF system:
Counsel for Defendant:
James M. Powell
Womble Carlye Sandridge & Rice, LLP
300 N. Greene Street, Suite 1900
Greensboro, NC 27401
(336) 574-8081
jpowell@wcsr.com
Jillian M. White
Womble Carlye Sandridge & Rice, LLP
300 N. Greene Street, Suite 1900
Greensboro, NC 27401
(336) 574-8081
Jill.white@wcsr.com
s/Jennifer S. Goldstein
Jennifer S. Goldstein
Acting Assistant General Counsel
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
131 M St. N.E., 5th Floor
Washington, D.C. 20507
(202) 663-4733
Jennifer.goldstein@eeoc.gov
[1] The Commission takes no position on any other issue in this case.
[2] “R.#” refers to this court’s docket entry number
[3] See also Kastl v. Maricopa Cnty. Cmty. Coll. Dist., 325 F. App’x 492, 494 (9th Cir. 2009) (concluding that after Price Waterhouse, “it is unlawful to discriminate against a transgender (or any other) person because he or she does not behave in accordance with an employer’s expectations for men or women”); Myers v. Cuyahoga County, 182 F. App’x 510, 519 (6th Cir. 2006) (concluding that “Title VII protects transsexual persons from discrimination for failing to act in accordance and/or identify with their perceived sex or gender”); Barnes v. City of Cincinnati, 401 F.3d 729, 736-39 (6th Cir. 2005) (holding that the demotion of a “preoperative male-to-female transsexual” police officer because he did not “conform to sex stereotypes concerning how a man should look and behave” stated a claim of sex discrimination under Title VII); Rosa v. Park W. Bank & Trust Co., 214 F.3d 213, 213-15 (1st Cir. 2000) (applying Price Waterhouse to conclude, under the Equal Credit Opportunity Act, that plaintiff states a claim for sex discrimination if bank’s refusal to provide a loan application was because plaintiff’s “traditionally feminine attire ... did not accord with his male gender”).
[4] See also Mitchell v. Axcan Scandipharm, Inc., No. Civ.A. 05-243, 2006 WL 456173, at *2 (W.D. Pa. 2006) (transgender plaintiff may state a claim for sex discrimination by “showing that his failure to conform to sex stereotypes of how a man should look and behave was the catalyst behind defendant’s actions”); Tronetti v. TLC HealthNet Lakeshore Hosp., No. 03-cv-375E, 2003 WL 22757935, at *4 (W.D.N.Y. 2003) (transsexual plaintiff may state a claim under Title VII “based on the alleged discrimination for failing to ‘act like a man’”); Doe v. United Consumer Fin. Servs., No. 1:01-cv-1112, 2001 WL 34350174, at *2-5 (N.D. Ohio 2001) (termination based on non-conformity with gender expectations is actionable under Title VII); cf. Hart v. Lew, 973 F. Supp. 2d 561 (D. Md. Sept. 23, 2013) (assuming without deciding that Title VII protects transsexual individuals).
[5] Def.’s Mot. Dismiss. 2 (quoting Merriam Webster Online Dictionary, Transgender (June 23, 2014) http://www.merriam-webster.com/dictionary/transgender)
[6] Merriam Webster Online Dictionary, Sexual Orientation (September 15, 2014) http://www.merriam-webster.com/medical/sexualorientation
[7] American Psychological Association, Answers to Your Questions about Transgender People, Gender Identity, and Gender Expression, 2 (2011) (“Transgender people may be straight, lesbian, gay, bisexual, or asexual, just as non[-]transgender people can be.”).
[8] Underpinning the Etsitty court’s rejection of a broader per se rule was its interpretation of Title VII as prohibiting discrimination against men or women, but not against individuals who change their sex. The court’s reasoning is flawed, as the Schroer decision highlights that discriminating against someone for changing genders is itself evidence of sex discrimination. 577 F. Supp. 2d at 305-06. The Schroer court analogized to a religious conversion: an employer that fires an individual for converting from Christianity to Judaism, and that harbors no bias against Christians or Jews but only converts, has discriminated “because of religion.” The court concluded that “[n]o court would take seriously the notion that ‘converts’ are not covered by the statute. Discrimination ‘because of religion’ easily encompasses discrimination because of a change of religion.” Id. (emphasis in original). It follows that discrimination against transgender individuals- those who have changed their gender expression-“is literally discrimination “because of ... sex.” Id. at 302.