Week 4
Employment Law I
This week was the beginning of our exploration into employment law. We first explored how transgender people are impacted by the workplace, and how the court uses the current status of the law to reinforce the negative treatment faced by trans folk. Negative treatment can include termination without cause, which leads many trans individuals without many options for employment and often into dangerous lines of work.
Ulane v. Eastern Airlines (1984)
Case Brief
Procedural History:
Ulane filed a lawsuit against Eastern Airlines in the northern district of Illinois and won, which prompted Eastern Airlines to appeal to the circuit court of appeals. Presumably, Ulane appealed to the Supreme Court but certiorari was denied.
Facts of the case:
Eastern Airlines fired Ulane because Ulane transitioned from male to female. Ulane was hired as Kenneth Ulane and fired as Karen Francis Ulane. Ulane served in the military as a pilot and started flying for Eastern right after they were discharged in 1968. In 1979 Ulane was diagnosed with gender dysphoria and began her transition to female, with records showing that she had requested psychiatric and medical assistance while still serving in the military. In 1980 Ulane underwent reassignment surgery and was re-certified to fly as a female by the FAA. Her employer, Eastern, was unaware of the process as it was happening until she attempted to return to work and was subsequently fired.
Issue:
Was the firing of Ulane for transitioning from male to female an act of illegal discrimination against Ulane?
Rule:
Title VII of the Equal Protection Act
Analysis:
The district court found in favor of Ulane because they accepted that being “transsexual”/transgender is a fundamental shift in perceived identity. Initially, the district court only found discrimination on the basis of her transgender identity and determined that to be prohibited under title VII; later, the district court amended their decision and also found illegal discrimination on the basis of her sex as well. The appellate court disagreed on both counts; they determined that the expansive reading of “sex” in the district court’s opinion, which included not just assigned sex/gender at birth but expressed gender identity, was inappropriate and unfounded in precedent. The district court had argued that such expansion was consistent with the remedial/”liberally construed” nature of the law, but the appellate court felt that such a reading constituted an act of active legislating. The judges on the circuit court explicated the contentious development of the law as it was legislated in Congress, including the active intention to exclude sexual identity in title VII in its reasoning for the majority opinion.
Conclusion:
The court determined that “sex” as it is written in the law, only includes and prohibits discrimination against individuals who identify with the gender they were assigned at birth. On that determination, they found in favor of the airline.
Concurrences:
Judge Wood J. concurs and dissents at the same time. He focuses more on the role Congress plays in legislating, and how that is not the realm of the court. That being said, the judge further digs into the district court’s decision and points out that the court never made an effort to find discrimination against Ulane as a woman. He concludes that if there was evidence that the employer had considered Ulane to be female and had subsequently discriminated against her on that basis, then a title VII argument could have been applied. However, since the evidence apparently only pointed to discrimination against Ulane on the basis of her transgender identity and not her assigned sex at birth, he agrees with the court’s decision to find in favor of Eastern on count one and dismiss count two.
No Dissents
Blog Post
“Transgender Law Center: Stories of Transgender Americans Amplified in Remarkable Supreme Court Filing”
This article is about an amicus brief filed with the Supreme Court and a particular case that has been heard by the court. This case, R.G. &G.R. Harris Funeral Homes V. EEOC was argued on October 8th, 2019 and the decision is pending. This case could become a landmark case for those in the trans community if the court decides in their favor, as it attempts to re-define and outlaw discrimination against transgender individuals on the basis of their “sex” as it appears in title VII; as we know from Ulane and as further explained by the Twing & Williams article, the courts have been very reluctant to prohibit discrimination against someone’s transgender identity unless petitioners could prove they were discriminated against they’re perceived gender. According to the article, “five appellate courts have already ruled that anti-transgender discrimination is prohibited sex discrimination”, but this case is the Supreme Court’s chance to weigh in. Again, this is of interest to the class because even in Ulane, it was the circuit courts that enforced the status-quo, but today even the circuit courts are starting to change precedent. The amicus brief filed on behalf of the defendant will include the experiences of over thirty transgender individuals who have been discriminated against on the basis of their transgender identity. According to the article, the experiences will highlight the dangerous precedent that has been set by the government enforcement of the status-quo (in terms of the gender binary in legal matters). Transgender people have a hard time getting a job in the first place and oftentimes have to put themselves in illegal and dangerous lines of work just to survive, and as Kris Hayashi (Executive Director at the Transgender Law Center) is quoted as saying in the article, “sanctioning discrimination against trans people pushes us to the margins and emboldens violence against us”. For those interested, the case is still undecided and can be found on Oyez https://www.oyez.org/cases/2019/18-107 (Links to an external site.); again, this case could set a very different precedent than we have been used to in the past if it is decided in favor of transgender rights.