Forever 21 Transgender Case Marks Legal Flashpoint

(WOMENSENEWS)– The case against the popular retail chain Forever 21 in a Brooklyn, N.Y., federal court for harassing a worker undergoing a transition from male to female is noteworthy not only for the egregious conduct it alleges, but also its place within the larger legal and social context in which the case arises.

Transgender individuals lack explicit protection against employment discrimination under federal law. Yet, in the last year President Barack Obama, the Department of Justice and the Equal Employment Opportunity Commission have taken steps towards enhancing protections for transgender individuals in the workplace under existing anti-discrimination law.

Despite these legal developments, as well as a growing awareness and acceptance in the media of transgender issues, transgender individuals continue to face harassment and discrimination in the workplace.

For those who have not yet heard the particulars of the Forever 21 case, it is being brought by

Alexia Daskalakis, who had worked for the California-based retailer in a Brooklyn, N.Y., location for nearly four years before she began her transition from male to female.

At that time, Daskalakis alleges that she began to experience severe discrimination and harassment and was eventually terminated from her position because she was a transgender woman.

In April, she brought a federal lawsuit filed in Brooklyn alleging her supervisors’ mistreatment was based on her gender identity.

The complaint includes details of the alleged discrimination, including claims that supervisors called Daskalakis "disgusting" and a "hot mess."

After Daskalakis informed her supervisors about her transition and began dressing in clothing more traditionally female, they forced her to comply with the male employee dress code. Her allegations also include elements of gender stereotyping, such as managers telling her she had been a hard worker as a male employee, but that she became lazy during her transition.

As of the time of this writing, Forever 21 had not yet filed an answer to the complaint.

Executive Order in July 2014

President Obama signed an executive order in July 2014 that prohibits federal contractors from discriminating on the basis of gender identity or sexual orientation. Shortly after, the Department of Justice announced it would consider discrimination against transgender individuals a violation of Title VII of the Civil Rights Act of 1964. The Department of Justice has since commenced a lawsuit against Southeastern Oklahoma State University for its alleged discrimination against a transgender female professor.

In addition, the Equal Employment Opportunity Commission filed its first lawsuits against employers for discrimination against transgender individuals last September. The EEOC alleged in those cases that the employers violated Title VII by discriminating against employees based on their failure to conform to gender stereotypes. One of those cases has since settled.

Discrimination on the basis of sex is prohibited under Title VII of the Civil Rights Act of 1964, and federal courts have recognized that discrimination based on sex stereotypes is actionable under that law since the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins. While that case involved sex stereotyping of a female employee who was deemed unfeminine by her employer, federal courts have been increasingly receptive to Title VII claims brought by transgender individuals.

One of the best known decisions holding that Title VII protects transgender individuals came out of the United States District Court for the District of Columbia in 2008.

In Schroer v. Billington, the court held that the Library of Congress violated Title VII when it discriminated against Diane Schroer, a transgender woman. Schroer accepted a job offer as a counterterrorism expert, but that offer was rescinded when Schroer disclosed to her supervisor her intent to physically transition and undergo gender reassignment surgery. The court determined that the reasons given for revoking the job offer–among them concerns about Schroer’s ability to maintain her security clearance given her transition–were merely pretextual.

Patchwork Protections

Despite these gains, advocates for the transgender community have lobbied for a federal law that provides explicit protections against discrimination for transgender people, rather than relying on favorable interpretations of Title VII or other laws to secure transgender rights. The patchwork of legal protections leaves transgender individuals vulnerable to harassment and discrimination in the workplace.

State laws protecting transgender individuals vary, as do local laws. For example, New York state law lacks explicit protection against discrimination on the basis of gender identity, but New York City law includes such protection. The claims against Forever 21 arise under both New York state and New York City anti-discrimination laws.

While the changing legal landscape appears to be one in which transgender individuals have greater protections against discrimination, advocates argue that more must be done to establish workplace policies and practices that ensure an environment free from discrimination and harassment. The New York Civil Liberties Union has reported that approximately 80 percent of transgender individuals have been discriminated against or harassed at work and 47 percent have been fired or demoted because of their gender identity or gender expression.

Nevertheless, there are signs of progress. Two-thirds of Fortune 500 companies have policies to prohibit discrimination based on gender identity; that’s up from three companies 15 years ago.

One of the challenges lies in shaping workplace culture while simultaneously implementing strong legal protections so that transgender individuals may choose a career free of discrimination. Public sentiment and popular culture will also influence the manner in which transgender individuals are treated in their places of employment.