Update on Law Covering Steve Stanton

Update on Law Covering Steve Stanton

Tuesday, March 20, 2007
Dr. Jillian Weiss
Transgender Workplace Diversity

http://jweissdiary. blogspot. com/2007/ 03/update- on-law-covering- steve-stanton_ 20.html

I last reviewed the Florida state law addressing transgender
employment issues in my post of March 1
<http://jweissdiary. blogspot. com/2007/ 03/law-covering- susan-stanton- city-manager. html> . Since then, I've found two more decisions of
the Florida Commission on Human Relations (hat tip to the Daniel
Ruth Show Blog <http://danielruthsh ow.wordpress. com/> ). These merit
discussion as they complicate the situation somewhat.

The statutes governing human rights violations also merit
discussion, as these would be a basis for any relief before the
Florida Commission on Human Rights or a court. The Florida Civil
Rights Act, Florida Statutes §§ 760.01 et seq, says that it is an
unlawful employment practice for an employer to discharge any
individual because of such individual's race, color, religion, sex,
national origin, age, handicap, or marital status. The statute
specifically includes municipal employees. Any person aggrieved by a
violation may file a complaint with the commission within 365 days
of the alleged violation. In lieu of filing the complaint with the
commission, a complaint under this section may be filed with the
federal Equal Employment Opportunity Commission or with any unit of
government of the state which is a fair-employment- practice agency.
In summary, this statute says that employment discrimination is
illegal and can be contested in the Florida Commission on Human
Relations.

Employment discrimination is also prohibited by another Florida
state statute that specifically addresses employment by a government
subdivision, such as a city commission. Florida Statute § 112.042
says that it is against the public policy of Florida for the
governing body of any county or municipality, solely because of the
race, color, national origin, sex, handicap, or religious creed of
any individual, to discharge from employment such individuals, if
the individual is the most competent and able to perform the
services required. (Notice that last phrase, which adds an
additional requirement not found in the Florida Civil Rights Act.)
Any person who is aggrieved by any decision of any county or
municipal commission may apply to such agency, board, commission, or
department at any time for a modification or rescission thereof. If
such modification or rescission is refused, any such person may,
within 30 days after such refusal, but not thereafter, institute
original proceedings for relief in the circuit court of the county.
In summary, this statute says that employment discrimination in
government employment is illegal and can be brought before the
Florida circuit courts.

Under these two statutes, Mr. Stanton could bring a case before the
Florida Commission on Human Relations and/or a Florida circuit
court. These remedies are concurrent, meaning that both can be
pursued at the same time, as the court found in Housing Authority of
City of Sanford v. Billingslea, 464 So.2d 1221 (Fla.App. 5th Dist.
1985). A plaintiff's lawyer, seeing two different forums for relief,
is going to want to know which one is better for the client.

As I've noted previously, making predictions of how a court or
tribunal will interpret the law is tricky, so make sure you're
holding you're lucky rabbit's foot when you try. One of the best
ways to shore up your predictions is to find other decisions on
similar cases. As I discussed in my post of March 1
<http://jweissdiary. blogspot. com/2007/ 03/law-covering- susan-stanton- city-manager. html> , there is a decision from the Florida Commission
on Human Relations that goes in favor of Mr. Stanton. I've since
discovered two more that go in favor of Mr. Stanton, discussed
below. On the other hand, there are no decisions in Florida state
courts on the applicability of either statute to a transsexual, and
the Florida courts have generally been less than sympathetic to LGBT
plaintiffs. While Commission orders can be appealed to the courts,
the courts have limited authority to change Commission orders. Click
here <http://library. findlaw.com/ 2006/Apr/ 21/241497. html> for a
good article on FCHR legal practice.

In my post of March 1, I briefly reviewed Smith v. City of
Jacksonville
<http://www.doah. state.fl. us/ros/1988/ 88-5451%20ATAFO. pdf> (1992).
In that case, a corrections officer was discharged for conduct
unbecoming an officer following an incident in which she was found
by a police officer in an isolated area at night changing her flat
tire. The Florida Commission said that "the condition of
transsexualism. ..is a handicap under Florida law," citing the
Washington State case of Doe v. Boeing, which made a similar ruling
under a similar statute. They also cited cases from other states
holding that transsexuality is a medical condition, and noted that
the federal Americans With Disabilities Act (ADA) specifically
exempts transsexuality from coverage, although it would otherwise
fall within the definition of "disability. " Lastly, the Commission
said that, even if transsexuality were not itself a "handicap," it
nonetheless is perceived as a handicap when an employer says that
the person cannot fulfill their job duties because of the disruption
caused by the reactions of others to the perceived handicap. Such a
"perceived handicap" falls within the protection of the Florida law.

In the Stanton case, of course, the City Commission has made a point
of saying that it is the disruption caused by Mr. Stanton's
transsexuality, rather than the transsexuality itself, that
justifies their decision. Thus, they themselves have admitted that
they perceive him as disabled.

The 2004 Commision opinion in Fishbaugh v. Brevard County Sheriff's
Department
<http://www.doah. state.fl. us/ros/2003/ 03-1139%20Agency %20Final% 20Order.pdf> , interestingly, contains language limiting the Smith
opinion. Even more interestingly, the petitioner was represented by
Attorney Karen Doering, who is now representing Mr. Stanton. The
Fishbaugh case involved a post-operative transsexual who had told
the Sheriff's department in advance of her hiring of her
transsexuality. She was fired, and alleged that it was based on her
transsexuality. She filed with the Commission, and it appears that,
initially, the Administrative Law Judge (ALJ) hearing the case was
of the opinion that the Commission had no jurisidiction to take the
case because transsexuality is not covered by the Florida Civil
Rights statute. He said that the Commission's opinion in the Smith
case was inapplicable because it was decided based on the Florida
Civil Rights Statute of 1977, which had subsequently been repealed
and replaced by the Florida Civil Rights Statute of 1992. He also
noted that the federal ADA had been enacted after 1977, and that the
petitioner in Smith had medical disabilities in addition to
transsexuality.

The Commission, however, rejected the ALJ's reasoning. Instead, it
held that Fishbaugh's case was different from the situation in the
Smith case, and that Fishbaugh was not disabled. It distinguished
Fishbaugh's case because, it said, she was not perceived by her
employer as disabled by reason of her transsexuality because the
employer knew she was transsexual before it hired her, and she
successfully completed all of the employer's pre-employment medical
and psychological testing.

The Commission then addressed the question of whether Fishbaugh
could maintain a case for sex discrimination. Although the ALJ had
decided that she could not, citing federal opinions based on the
federal Civil Rights Act (also known as "Title VII"), the Commission
overruled and said that she could maintain a cause of action for sex
discrimination. The Commission cited the U.S. Supreme Court case of
Price Waterhouse v. Hopkins, which held that sex discrimination
includes "a perception that a person failed to conform to
stereotyped expectations of how a 'woman' should look and behave,"
as well as the U.S. Supreme Court case of Oncale v. Sundowner, which
held that Title VII covers male-on-male sexual harassment, even
though Congress did not specifically intend for such discrimination
to be covered by Title VII. Interestingly, as discussed in detail in
my post of March 1
<http://jweissdiary. blogspot. com/2007/ 03/law-covering- susan-stanton- city-manager. html> , the federal courts covering Florida have given
signals that they might agree with such an interpretation.

The most recent FCHR opinion, that of Shepley v. Lazy Days RV Center
<http://www.doah. state.fl. us/ros/2005/ 05-1906%20Agency %20Final% 20Order.pdf> (2006), also supports Mr. Stanton. In this case, the
petitioner transitioned while working at the Lazy Days RV Center.
Staff and customers harassed the petitioner, and after being
intially supported, the employer fired Shepley on the grounds that
her presence was disruptive. The ALJ who heard the case ignored the
Commission's Smith and Fishbaugh decisions, instead citing two
opinions of lower federal courts (from Utah and Louisiana, of all
places) that held that transsexuals shouldn't be protected by civil
rights laws. The Commission reversed, noting that the ALJ failed to
take into account not only the Commission's prior opinions, but also
a dozen other federal court opinions indicating that transsexuals
are covered by civil rights laws.

Most significantly for the Stanton case, the Commission also stated
that the employer's reason for dismissal, that of disruption, was a
mere pretext for discrimination, because they could not present
proof of actual loss of business or other significant burdens beyond
that of providing a discrimination- free workplace. Thus, although
there have been statements in the press by City Commission members
that the firing was based on disruption, rather than Stanton's sex,
it would be up to the Commission to demonstrate that there was
actual interference with city business or other significant burdens,
beyond the usual difficulties associated with maintaining a
discrimination- free workplace. The disruption defense is going to
prove a high hurdle for the Commission.

If the City Commission of Largo is mindful of the law of Florida,
and heeds these strong indications of how the Florida Commission on
Human Relations sees the law, then they must rethink their decision.
Although Steve Stanton has publicly stated that he has not given any
thought to a suit against the City of Largo, and had no desire to
bring such a suit, I have seen many situations in my law practice
where people regarded their employers highly and stated that they
could never sue them. Then, when their employers shafted them in
what they regarded as the most personal, mean-spirited, vile,
low-down manner, the scales fell from their eyes and the courthouse
seemed the only option.

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