Leonard Link - USA
Retail Employer Can Fire Transgender Employee for Violating "Dress Code"

Chief Judge Robert L. Miller of the U.S. District Court for the
Northern District of Indiana ruled on January 5 that an employer who
discharged a gender-transitioning (male-to-female) retail sales
employee for letting her hair grow longer than the employer deemed
appropriate for men and using make-up, had not violated the ban on sex
discrimination under Title VII of the Civil Rights Act of 1964 and a
similar Indiana state law, because the employer was merely enforcing a
non-discriminatory dress code. Creed v. Family Express Corporation,
2009 Westlaw 35237.

Presenting herself as Christopher Creed, the plaintiff was hired as a
sales associate and began work in February 2005. She had already begun
to research transitioning prior to being hired, and after successfully
starting on her new job, began wearing clear nail polish, trimming her
eyebrows, and sometimes wearing mascara. In the fall of 2005, Creed
started "growing her hair out and wearing it in a more feminine
style," and started to use the name "Amber." Local management and
co-workers in the store were supportive of her gender transition,
according to Creed, who also stated that no customers complained to
her and the store management never told her that they had received any
complaints. She received positive job evaluations, and was designated
"greeter of the month" three times.

Family Express had a formal dress and grooming policy, which Creed
claims she was first shown in December 2005, a few weeks before she
was discharged. She dressed in conformance with the policy, but her
personal appearance was not in conformance with the specification for
men due to her hair length and make-up. Creed claims the store manager
never complained to her about her appearance. On the other hand,
Family Express claimed that numerous customer complaints were made to
the store manager, who relayed them to the corporate Human Resources
Department, and the Director of Operations also testified about
customer complaints. However, no written documentation was offered in
support of the employer's motion for summary judgment, merely
affidavits.

A district store manager and the director of operations came to the
store on December 14 and called Creed into a meeting. What was said in
the meeting is disputed. Creed claims she was told she could not
present herself in a feminine manner at work, and was asked whether it
would "kill her" to appear masculine for eight hours a day while at
work. When Creed, who had altered her appearance as part of the
necessary "life-experience" preparatory to taking the medical steps
involved in gender transition, refused to cut her hair and abandon her
current appearance, she was discharged. She filed suit under Title
VII, claiming sex discrimination.

Judge Miller's opinion uses respectful language and appears at times
sympathetic to Creed's situation, but ultimately he concludes that
case law supporting the right of employers to have dress codes and
apply them uniformly takes priority over the employee's right to
express her gender identity. Miller acknowledges the case law on sex
stereotyping, but concludes - rather bizarrely, in my view - that it
really doesn't apply, claiming that the employer was not acting based
on stereotypes about how men or women should present themselves, but
was merely requiring all employees to comply with a non-discriminatory
dress code.

Under the case law on dress codes, employers are allowed to prescribe
employee appearance, so long as their dress and grooming code is
"non-discriminatory." This means, according to the courts, that
employers can impose different requirements on men and women as to
things such as hair length and dress, so long as neither sex incurs a
greater burden than the other. This rule may seem equitable in terms
of employees whose physical sex and gender identity coincide, but it
is a recipe for disaster for an employee who is transitioning on the
job.

Miller stated that the court had treat Creed as a man for purposes of
analyzing her discrimination claim, and held, in effect, that an
employer who is uncomfortable with a transitioning employee may adopt
a dress code for which the transitioning employee's appearance is
non-conforming, and then discharge the employee for failing to conform
to the dress code. This seems totally inconsistent with the developing
case law on sexual stereotyping and gender non-conformity, which holds
that discharging an employee for failing to conform to the employer's
gender stereotypes may violate Title VII.

Part of the problem here, of course, is that Indiana is in the 7th
Circuit, which is the home of some of the worst decisions on this
subject. In the neighboring 6th Circuit, two appellate decisions have
now upheld Title VII actions for transgendered employees who were
fired when their employer learned they would be transitioning.

Reading Miller's decision is quite frustrating. Equating this case to
Jespersen, where the 9th Circuit upheld the dismissal of a woman who
refused to comply with the employer's requirement to wear make-up,
seems logically wrong to me. Although I disagree with the Jespersen
holding, even accepting it as it stands, one would have to distinguish
between a woman whose gender identity is female but who prefers not to
wear make-up, and a man whose gender identity is female and who
prefers to wear make-up, in terms of deciding whether the employer's
insistence on a particular appearance is really the application of a
non-discriminatory dress code.

In any event, this case against points up, if further evidence were
needed, the failure of Title VII's sex discrimination provision to
provide appropriate protection for the individual employee's right to
private life. The recent comment by President-Elect Obama that he
intends to seek enactment of the Employment Non-Discrimination Act to
include gender identity as well as sexual orientation is welcome news,
but it will be important to establish in the statute - not just in the
legislative history - an intent to allow employees to appear in their
desired gender identity on the job. In this case, nobody was
complaining that Creed was not presentable, or that her appearance had
actually impeded her ability to work. And basing the discharge on
customer complaints seems counter to the lessons of race and sex
discrimination under Title VII, where courts have in other contexts
rejected the argument that customer preferences or biases should be
allowed to dictate the personnel policies of a company subject to a
statutory obligation not to discriminate on the basis of race or sex.
A good employee such as Amber Creed should not be subjected to this
kind of humiliating discrimination because of some intolerant
customers.


January 14, 2009

Source:
http://newyorklawschool.typepad.com/leonardlink/2009/01/retail-employer-can-fire-transgender-employee-for-violating-dress-code.html

MORE ABOUT THIS:

LawMemo Employment Law Blog - USA
Transgender employee fired for "violating dress code." Not a Title VII violation
January 14, 2009 by Ross Runkel at LawMemo

Chief Judge Robert L. Miller of the U.S. District Court for the
Northern District of Indiana ruled on January 5 that an employer who
discharged a gender-transitionin g (male-to-female) retail sales
employee for letting her hair grow longer than the employer deemed
appropriate for men and using make-up, had not violated the ban on sex discrimination under Title VII of the Civil Rights Act of 1964 and a
similar Indiana state law, because the employer was merely enforcing a non-discriminatory dress code. Creed v. Family Express Corporation,
2009 Westlaw 35237.

So begins a lengthy description of the Creed v. Family Express
Corporation case.

For the full explanation, go right now to Retail Employer Can Fire link above.
Source: http://www.lawmemo. com/blog/ 2009/01/transgen der_emp.html