Alaska Employment Law

Following complaints that a man was using the women’s restroom, an employer banned a transsexual employee from using the restroom until she could prove completion of sex reassignment surgery.   The trial court dismissed claims under Title VII, Title IX, and Section 1983.  The 9th Circuit has now affirmed the dismissal, but in the process re-affirmed that sex-stereotyping of transgendered employees violates Title VII.  The Court agreed with the trial judge that the employee had failed to rebut the employer’s non-discriminatory rationale. 

The panel wrote:

In Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989), the Supreme Court explained that gender stereotyping is direct evidence of sex discrimination prohibited by Title VII. Relying on Hopkins, in Schwenk v. Hartford, 204 F.3d 1187, 1201-02 (9th Cir. 2000), we held, in the context of the Gender Motivated Violence Act, that transgender individuals may state viable sex discrimination claims on the theory that the perpetrator was motivated by the victim’s real or perceived non-conformance to socially-constructed gender norms. After Hopkins and Schwenk, it is unlawful to discriminate against a transgender (or any other) person because he or she does not behave in accordance with an employer’s expectations for men or women. Accord Smith v. City of Salem, Ohio, 378 F.3d 566, 575 (6th Cir. 2004). Thus, Kastl states a prima facie case of gender discrimination under Title VII on the theory that impermissible gender stereotypes were a motivating factor in MCCCD’s actions against her.

In a footnote, the panel stated:

We note that the parties do not appear to have considered any type of accommodation that would have permitted Kastl to use a restroom other than those dedicated to men.  After all, Kastl identified and presented full-time as female, and she argued to [the employer] that the men’s restroom was not only inappropriate for but also potentially dangerous to her.

Kastl v. Maricopa County Comm. College Dist., 2009 WL ______ (9th Cir. Apr. 14, 2009)(unpub.)