Judge Robert L. Miller, a Reagan appointee who sits on the federal district court for the Northern District of Indiana, has recently issued yet another curious decision in the case of Creed v. Family Express Corp. Amber Creed was fired from her job in 2005 because she is transgender. Judge Miller's first decision, in 2007, which I will call Creed I, was very curious indeed, creating a considerable amount of confusion about what precisely is protected under the federal employment discrimination law, Title VII of the Civil Rights Act of 1964. His second decision, which came out a few weeks ago (Creed II, 2009 WL 35237) is even more hopelessly befuddled. Curiouser and curiouser!, cried Alice. These decisions are a case study of why the proposed federal Employment Non-Discrimination Act should include protection for both sexual orientation and gender identity, for it demonstrates that the current federal law of employment discrimination is a patchwork welter that creates confusion for both employees and employers.
There is a considerable amount of debate as to whether, in protecting "gender identity" - one's self-identification as male or female - the law should also protect "gender expression" - one's expression of gender through clothing, styling and other behavioral and social characteristics. Judge Miller's decision in Creed I turned this debate on its head. He decreed that the federal sex discrimination protection extends to discrimination based on gender expression, but that discrimination based on gender identity is not. Under Judge Miller's rule, a crossdresser who makes no claims about sex would be covered, but a transsexual who claims to change their sex would not. In other words, sex discrimination covers a person whose sex is not implicated, but doesn't cover a person whose sex is implicated. Sheesh.
In Creed II, Judge Miller makes it even worse. He rules that an employer can't discriminate based on sex stereotypes, but it can rely on a dress code that enacts sex stereotypes. However, if the employer's reliance on the sex stereotypical dress code is a pretext for sex stereotyping, then that is forbidden. If the employee can show an intent to discriminate based on sex stereotyping, then the employer is guilty of sex discrimination. Nonetheless, any sex stereotypical remarks that the employer makes can't be used to show intent to discriminate based on sex stereotyping unless the remarks are proven to refer to an intent to discriminate based on sex stereotypes, and not an intent to apply the sex stereotypical dress code.
Is anyone else besides me confused?
The Silly Ulane Doctrine
Judge Miller shouldn't be blamed for all this, for his court is under the Seventh Circuit Court of Appeals, and he has to follow their crazy rules. The Seventh Circuit is the one which handed down the misguided legal doctrine in Ulane v. Eastern Airlines, a 1984 decision, which held that the federal employment law does not cover transsexuals because the discrimination against them isn't discrimination based on "sex," but on "changing sex." While the Ulane doctrine is technically only binding on lower federal courts in the Seventh Circuit (which covers Illinois, Indiana and Wisconsin), courts in many other circuits have relied on it as very persuasive.
The Ulane doctrine was recently blown out of the water by Judge James Robertson of the Federal District Court for the District of Columbia, writing in Schroer v. Billington. Judge Robertson reasoned that dismissal because of "changing religion" would obviously be prohibited under Title VII, and dismissal because of "changing sex" is equally prohibited. Ulane used the now discredited "Conan Doyle" argument - referring to Sherlock Holmes' deduction from the dog that didn't bark - to hold that the failure of Congress to mention transsexuals in the legislative history meant they had no employment protection. (This is doubly silly because there was no legislative history on the issue of sex discrimination whatsoever.) Ulane also ignored all of the evidence that the term "sex" is now well understood to include a gender component. (I have a law review article coming out in May on the history of the word "sex", documenting how its meaning has changed since its first usage in the 15th century, and demonstrating that its current meaning includes gender.)
The Creed Lawsuit
The lawsuit stems from a job that Ms. Creed had as a sales associate in 2005. She was hired as a male, and wore the polo shirt and slacks provided to all employees. Over the year, she sometimes wore clear nail polish and black mascara, trimmed her eyebrows, and, in the fall, wore her hair in a more feminine style. The company's HR Director met with her, and told her she could no longer present herself in a feminine manner at work. Ms. Creed told them that she was transgender and was going through the process of gender transition. When she refused to present herself in a more masculine way at work, she was terminated. Ms. Creed's letter of termination stated she was fired because she didn't comply with its dress and grooming code. Ms. Creed sued.
Ms. Creed's complaint alleged she was discharged because she didn't conform to sex stereotypes, a cause of action validated in 1989 by the U.S. Supreme Court in the case of Price-Waterhouse v. Hopkins. Many lower courts have recognized, expressly or impliedly, that the sex stereotyping lawsuit provides protection for transgender employees because transgender discrimination is based on stereotypes of male and female behavior. These courts include the First, Sixth and Ninth Circuits, as well as district courts in the Second, Third, Fifth, Seventh and D.C. Circuits. (If you want a list of cases, shoot me an email.) But not the Seventh Circuit, where the Ulane doctrine is the law of the land, and that's where Amber Creed, Family Express and Judge Miller met to discuss the situation.
The Motion to Dismiss - Creed I
The first decision by Judge Miller, in 2007, came after Family Express, the defendant, made a motion - in legal parlance, a request to the Judge - asking that the case be dismissed because of the Ulane doctrine. Procedurally, the motion to dismiss asks for dismissal on the grounds that even if every word of the complaint is true, it can not legally result in any relief for the plaintiff. It's a weak motion, for only the words of the complaint itself may be considered, and evidence outside the four corners of that document must be ignored by the judge. In addition, the plaintiff is given every benefit of the doubt, and the complaint must be assumed to be 100% true for the purposes of deciding the motion. The defendant who goes for the motion to dismiss has got to be pretty sure of themselves.
The Family Express lawyers probably figured that, in a Circuit where the law requires following the Ulane doctrine, a motion to dismiss was going to be a slam dunk. They probably figured they didn't need any evidence outside the complaint. They probably figured that even if every single word of the complaint were true, no judge in the Seventh Circuit was going to give a transgender employee the time of day.
In general, the motion to dismiss is a procedural device for a defendant in a hurry, who thinks it's a slam dunk, and who doesn't want to spend the months or years and thousands of dollars necessary to gather evidence for the much more potent motion - the dreaded motion for summary judgment. The motion for summary judgment is the machine gun of the law - it spits any and all relevant evidence, even hearsay affidavits, at the complainant, and the complainant has to block every single bullet with legal proof. If the motion for summary judgment is a machine gun, the motion to dismiss is a water gun. It only works on complaints so flawed that they are the equivalent of fictional Wicked Witches, who melt when water is poured upon them. Most lawyers are capable of writing a complaint that will withstand a simple motion to dismiss.
Judge Miller Gets It Mostly Wrong - Creed, Scene I
Despite plaintiff's lawyer's best efforts, however, Judge Miller decided that the Creed complaint was not waterproof, and ruled in favor of the employer, at least in part. He said that the sex stereotyping lawsuit only works if the person stereotyped isn't a transsexual. He said that the Price-Waterhouse opinion focused on the situation in which initiative, effort, and aggressiveness were rewarded with partnership for men, but the company then punished women who exhibited these "macho" traits. He showed his complete misunderstanding of the difference between sexual orientation and gender identity, saying that the Civil Rights Act forbids the disparate treatment of men and women by sex stereotypes, but that disparate treatment of a transsexual isn't a sex stereotype because it's a sexual orientation. "In other words," said Judge Miller, "Congress intended the term 'sex' to mean 'biological male or biological female,' and not one's sexuality or sexual orientation." Yeah, and he later says "'sex' means 'biological male or biological female,' and not one's 'sexual preference.'" To him, gay and transgender are the same thing. Ooh brudder.
Judge Miller dismissed the parts of the complaint alleging that Creed was discriminated against "on the basis of her transgender status." He said they failed to explicitly allege that her discharge was triggered by stereotypical perceptions of a particular gender. "Nothing in this allegation suggest Ms. Creed's discharge was triggered by Family Express' stereotypical perceptions of a particular gender, so an actionable sex discrimination claim based on this allegation is speculative." Umm...person hired as male discloses a transition to female, employer fires employee for same, and the judge wonders whether stereotypical perceptions played a role?
Judge Miller's Saving Grace
However, surprisingly, Judge Miller showed some backbone, standing up to the Seventh Circuit Court of Appeals and saying that he was going to let parts of the lawsuit go forward. He noted that two other counts of the complaint did explicitly allege stereotypical perceptions, and Judge Miller let them stand. This was the saving grace of the decision, though it left the law in a confused state. In so doing, Judge Miller held that if an employee uses the words "gender identity," "gender dysphoria," or anything other than the magic words "stereotypical perceptions of gender," they're not protected. Talk about form over substance. But something is better than nothing, so bravo Judge Miller. However, Judge Miller immediately piddled on his ruling by saying that "not all gender stereotyping is discriminatory." This proposition, which contradicts the U.S. Supreme Court's ruling in Price-Waterhouse, leaves a loophole a mile wide. It is this loophole which he will later use in Creed II to throw the whole case out of court. However, it's interesting to note that he cited, as authority for this proposition, the initial opinion by Judge Robertson in the Schroer v. Billington case which Robertson later repudiated. (See my previous blog on Schroer, starting at the heading "Legal Issues.")
In allowing parts of the complaint regarding "stereotypical perceptions of gender" to stand, Judge Miller took note of the fact that he was deciding a motion to dismiss, in which the words of the complainant must be taken as 100% true for purposes of the motion. He purposely ignored the protests of the employer, Family Express, which sputtered that stereotypical perceptions of gender had nothing to do with it because their termination letter said that Amber Creed was dismissed because she violated their dress code, not because she's transgender. Judge Miller said "talk to the hand" and ignored the termination letter, as he was required to do by law on a motion to dismiss. The motion of the employer Family Express to dismiss the whole complaint was denied.
Judge Miller Gets It Wrong Again - Creed Scene II
After Judge Miller's decision on the motion to dismiss (Creed I), the Creed case went forward, and each party looked for evidence in the form of documents and witness testimony. In 2008, Family Express came back and filed another motion - this time a motion for summary judgment.
This motion claimed that Amber Creed was not dismissed because of stereotypical perceptions of gender, but rather because she refused to comply with the Family Express dress code applicable to males. This is a rather perplexing claim. There doesn't seem to be much difference between these two. After all, if an employer creates a set of rules specifically applicable to males, based on stereotypical expectations of how males should clothe and style themselves, and then fires an employee because of their failure to comply with the stereotypical dress code - what the heck is the difference?
Stereotypes of Gender and Stereotypical Gender Codes - A Distinction Without A Difference
This issue has been plaguing courts around the country. They know that the law doesn't allow employers to force women (or men) to dress and act in a stereotypical fashion, but gendered dress codes are an old and time-honored tradition. Male dress fashion differs from female dress fashion in many ways, more subtle though it may be than the 1950s, but there are still different men's clothing stores and women's clothing stores, different men's and women's clothing departments, different men's and women's pants, and different men's and women's sneakers. The Civil Rights Act doesn't prohibit men and women from dressing differently. But the question at the pointy end of the stick is whether the Civil Rights Act allows employers to require them to dress differently. Different courts have given different answers. And when the employee is transgender, the question is even more difficult because there are decisions out there like Ulane saying that transgender people receive no protection, so some argue that dress code questions must be applied differently to them than to traditionally gendered persons.
Judge Miller in Creed II, starts off sensibly enough by noting that "Title VII doesn't allow an employer to treat employees adversely because their appearance or conduct doesn't conform to stereotypical gender roles." But he immediately gets stuck in the tar pits in his next sentence: "Although discrimination because one's behavior doesn't conform to stereotypical ideas of one's gender may amount to actionable discrimination based on sex, harassment based on sexual preference or transgender status does not." Okay, at least this time he recognizes that there is a difference between sexual orientation and gender identity, even if the terms he uses are slightly incorrect. But he totally ignores the fact that firing a person because they are transgender means using stereotypical judgments about gender ipso facto. He gamely attempts to harmonize these mutually exclusive statements by saying that Creed can win if she shows that "the employer actually relied on his or her gender in making an adverse employment decision." Yet, in the end, he ruled that Family Express didn't discriminate against Ms. Creed based on her gender because "it relied on a uniformly applied, sex-specific dress code and grooming policy." In other words, you can't base your decision on gender stereotypes, but you can base it on a gender stereotypical dress code. This is a distinction without a difference. Under Judge Miller's ruling, any employer who wants to be able to fire transgender employees with impunity can do so if their lawyer is smart enough to tell them to enact a gender specific dress code first.
I Hope You Don't Think I'm Being Stereotypical, But Would It Kill You To Look Like A Man?
Judge Miller tried to redeem himself by saying that relying on a dress code can be sex discimination if the dress code is merely a pretext for sex stereotyping. But he reached the astonishing conclusion that nothing in this case suggested sex stereotyping as a reason for the termination. He reached this astounding conclusion despite comments during the termination meeting, after Ms. Creed informed them that she was going through a gender transition, such as whether "it would kill [her] to appear masculine for eight hours a day," questioning why she applied for a job if she knew she would be undergoing a gender transition, and ordering her to report to work "as a male." There was also deposition testimony in which one manager admitted that he thought Ms. Creed didn't look like the same person because of her feminine appearance, and he didn't consider wearing makeup or having long hair to be masculine characteristics. In addition, the termination happened shortly after her co-workers and store manager began to notice changes in her appearance. Family Express had even asserted in its evidence that it received numerous complaints about Ms. Creed's feminine appearance, suggesting that the employer's problem stemmed less from dress code violations than from customer sex stereotypes. Illogically, the Judge said these could be construed as simple expressions of the fact that Ms. Creed had violated the dress code. He also said that "direct evidence [of discrimination] essentially requires an admission by the decisionmaker that the adverse employment action was based on the prohibited animus." In other words, if the employer insists that it didn't have an intent to discriminate, even though it is obvious beyond belief that it did, then the employee loses.
What?! [Cue Twilight Zone Music]
Frankly, it is obvious that Judge Miller was completely nonplussed by this case, and the only thing I can think of is that he temporarily lost his ability to reason, because he is otherwise a pretty sharp cookie. A student turning in this level of shoddy work to me would get an F. In fairness, I realize that this area of employment law is very complicated and confusing, but a federal judge is expected to be able to think his way through this more elegantly. Miller's two decisions in Creed stand for the proposition that federal sex discrimination protection extends to discrimination based on gender expression, but not gender identity, that a complaint must use the magical words "stereotypical perceptions of gender", that an employer can't discriminate based on sex stereotypes, but it can rely on a dress code that enacts sex stereotypes, unless that is a pretext for sex stereotyping, but the employer is presumed to have relied on the dress code unless it admits otherwise. Astounding.