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Know Your Rights
Source: Colorlines
Subject: TGNCIQ Justice
Type: Media Coverage

Special Report: How to Get Away With Harassing, Firing or Never Even Hiring a Trans Worker of Color

Chance Lombardi couldn’t have predicted that posting a photo of himself on social media would cost him his job with the U.S. postal service. But that’s what happened last fall, after an image that revealed that he is transgender wound its way through the Long Island, New York, plant where he served as a mail handler. Soon, says the biracial 29-year-old, his workplace became hostile. “A couple of people were coming up to me, showing me the picture and saying, ‘Listen, is this you? People are saying that you are a woman.'”

Lombardi told his interrogators that he had no idea where the picture originated. But then “Eden’s Garden,” a web series about transgender men of color that he was co-starring in, garnered publicity outside of the LGBTQ press. He was no longer able to downplay his gender identity.

“I knew that participating in something like that, there would be a chance of people finding out,” he tells Colorlines. “But I just didn’t think it would be that bad. I thought they would be more understanding.”

But by November of 2015, Lombardi’s working environment had become intolerable. “People that used to talk to me, used to be cool with me, were saying little things like, ‘Why didn’t he tell us that he was born a she? That he is really a woman?’ They felt like they had the right to know, that I was being deceitful because I didn’t tell them my business.”

His coworkers’ alleged harassment was bad, but then his supervisor, he says, got in on the game. “My boss used to follow me around, saying ‘Oh, what are you?'”

Lombardi says that he told a supervisor with authority over his boss that the harassment was causing him to have anxiety attacks and miss days of work. But nothing, he says, changed.

A U.S. Postal Service spokesperson told Colorlines that she could not comment on the specifics of Lombardi’s case but wrote in a statement that the agency does not permit or condone “harassment and disparate treatment based on actual or perceived sexual orientation, gender identification, or gender stereotypes.” Employees, she wrote, should “report any variance” from the postal service’s policy statement “to a management official at the earliest opportunity for prompt and thorough investigation and action when warranted.”

To escape the alleged trans discrimination, Lombardi got another job—window-clerk at a Long Island post office. But in March, he found what he describes as a noose hanging from a shelf in a back room.

“The supervisor was like, ‘That is what they play with. That is nothing serious,'” recalls Lombardi, who adds that some of his White coworkers tossed around the N-word. He filed a complaint with his union assuming that it would go to the Equal Employment Opportunity Commission (EEOC). Instead, a human resources manager did an internal investigation.

In an April 2016 letter Lombardi provided to Colorlines, the district human resources manager wrote that the rope contraption was not a noose, but an instrument used “in the past, to pull bags before the implementation of buckets.” His union shop steward was cited in the letter as affirming this finding.

The letter, which used Lombardi’s birth name, also claimed that “inference could be drawn that racial comments were made,” but that the USPS’ commitment to “eradicating and addressing all racial remarks and/or discriminatory comments within the workplace” was evident from a postmaster doing a “service talk” with workers about its Zero Tolerance Policy. Feeling unsafe, Lombardi left the postal service for good on March 17, 2016.

Lombardi is clear that what happened to him was discriminatory, but he wonders if he has enough of the “right” information to make a legal case. “I talked to three or four lawyers, and they want nothing to do with it,” he says. “I think maybe I am saying the wrong things. It is like I have no rights, period, because I am a person of color and then I am transgender. I look the way I look.”

The Civil Rights You Have But Can’t Quite Use
Job discrimination against transgender people is illegal under Title VII of the Civil Rights Act of 1964. This section forbids employers to harass, underpay, refuse to hire, deny promotions to or fire employees because of race, color, religion, national origin and sex. They are also prohibited from retaliating against workers who make complaints.

While “sex” is a protected area, Title VII doesn’t explicitly cover sexual orientation or gender identity. As a result, transgender people were excluded from it until 2012, the year that the EEOC ruled that gender-based discrimination against a White trans worker named Mia Macy did indeed occur “because of sex.” With that decision, workplace discrimination against trans people became illegal in all 50 states. (Only 22 states have their own statues.)

Still, there’s a massive difference between having protections under Title VII and actually using them. For one, the burden of proof rests with employees in most cases. And typically, workers must show that their employer intended to discriminate against them. (See our companion piece, “8 Ways to Fight Anti-Trans Bias on the Job,” for tips on documenting discrimination, navigating job interviews and filing complaints.)

“We know from research that unconscious bias produces unfair employment outcomes. But so far most federal judges aren’t really buying it,” says Dominique Apollon, research director for Colorlines’ publisher, Race Forward.

Despite overt discrimination like Lombardi’s boss following him around, evidence can be hard to secure and even harder to prove. “The challenge for transgender workers of color is even greater since they’re less likely to be able to collect evidence that shows a pattern of transgender colleagues being treated similarly because chances are they don’t have any,” notes Apollon.

And, as Lombardi’s experience also demonstrates, it is very difficult for trans discrimination plaintiffs to find an attorney willing to take their case. Advocacy groups take on complaints, but their capacity can be limited. “It is extremely rare that a defendant employer is going to leave a smoking gun when they are discriminating against you. These cases can be very expensive and very fact-intensive for nonprofit civil rights or LGBT organizations,” says Sasha Buchert, a staff attorney at the Transgender Law Center.

To maximize results, advocates use a strategy called “impact litigation,” where they try to win a single case that will set a legal precedent. But these cases can still boil down to resources. “One impact litigation case can grind on for years,” notes Buchert.

Kylar Broadus, a transgender activist and attorney from Fayette, Missouri, and now based in Washington, D.C., says that private lawyers frequently require money in advance. This is a major obstacle for clients who have been fired, compelled to quit or denied a job.

“If they don’t see the smoking gun in the case, they’re just not going to do it unless you have lots of money to give them up front,” says Broadus, who in the ’90s represented himself in a Title VII suit because he couldn’t secure a lawyer. “Some attorneys will take a contingency fee if they see a smoking gun. Some won’t. If we don’t have attorneys to represent people, we still lose.”

The Maddening Pace of a Discrimination Case
“The wheels of justice turn slowly,” says Patricia Dawson, a 47-year-old, White skilled electrician who was fired from her Hot Springs, Arkansas, job after coming out as transgender to her boss.

In federal court papers, Dawson alleged that after she legally changed her name and gender marker, her employer of four years forbade her to discuss her transition with coworkers, instructed her not to wear feminine clothing and eventually terminated her because she was “too much of a distraction.” Dawson was fired in September 2012. She filed a Title VII complaint with the EEOC in February 2013. The agency didn’t green-light an actual lawsuit until June 2014.

While the EEOC heavily promotes mediation between employees and employers, the agency was compelled enough by Dawson’s evidence of verbal abuse, gossip amongst coworkers, harassment by her boss, and even the dangerous sabotage of her electrical work to grant her a “Notice-of-Right-to-Sue.” With the help of ACLU attorneys, Dawson finally filed her lawsuit with the U.S. District Court for the Eastern District of Arkansas on September 29, 2014—more than two years after her termination.

Like many Title VII defendants, Dawson’s employer pushed for an immediate decision from the judge, which is called a “summary dismissal.” But the EEOC supported her suit and filed a friend-of-the-court brief on her behalf. The judge ruled that her case should proceed to trial in September 2015. After that, says Dawson, lawyers from both sides “culminated a resolution,”* the details of which are confidential.

As strange as it sounds, Dawson was lucky. She got a new job within a few months of being fired and her employer is supportive of who she is. Pursuing a legal challenge would have been significantly harder for her had she been unemployed. “A person has got to eat and they have got to pay bills,” she says. And because the ACLU represented Dawson, she didn’t have to pay a lawyer.

Along with the financial and time burdens that usually come with cases like Dawson’s, they can take an emotional toll on workers’ lives. “I have seen cases, whether they are administrative charges or cases in federal or state court, where the impact on people’s lives is devastating,” says Buchert. “A case can thrust a person into this public spotlight where they are under a lot of pressure. It becomes this eternal part of them, like another appendage that they have to deal with every day.”

Justifiable Pessimism
With so many barriers to justice, it’s no wonder that people like Mexico-born restaurant server Shantal Ramirez don’t bother to pursue Title VII cases. Ramirez has been in the U.S. for seven years, the last two in Queens, New York. She says that at the one job she held in the city her colleagues bullied her for being transgender, calling her names. “I even went so far as to speak to the manager about it but he didn’t do anything about it,” she says in Spanish, through a translator. Eventually, she quit her job. (Colorlines attempted to reach Ramirez’s former supervisor for comment but received no reply by press time.) “The trans community, we’re looked down upon,” says Ramirez. “We want people to know that we are capable of doing dignified work, that we have the skills and capacity.”

Make the Road New York, a community group with an immigrant-friendly LGBT justice project, has referred her case to an attorney. But as an immigrant who primarily speaks Spanish, Ramirez knows that her job options and access to legal services are limited. “I think people would complain more if those cases went somewhere, but, that’s not the reality,” she says. “Complaints stay stagnant.”

Along with language barriers, some immigrants are deterred by their citizenship status. Title VII does cover undocumented workers, but their precarious legal situation often makes them less likely to rely on the courts for help.

“There is a huge disconnect about what protections exist,” says Buchert. Activists who want better laws often repeat the statement that gays and lesbians can now get married in any state, but get fired in all of them. This conventional wisdom can lead trans and gender nonconforming workers to believe that Title VII doesn’t cover them. People can’t invoke protections that they don’t know about.

And as Dru Levasseur, national director of Lambda Legal’s Transgender Rights Project, notes, workers often don’t know what they need to file a claim. Are insults enough? Is being questioned about your body? Is being denied access to the proper restroom? “Many people don’t really understand what evidence looks like or how extreme the harassment needs to be,” he says. “It’s very difficult to pinpoint discrimination.”

Levasseur adds that as interpretation of the law changes, employers learn to be less blatant about their bias. As with race discrimination, when people learn what they are not supposed to say, it gets harder to prove an individual claim. “That’s why looking at disparate impact claims is really important,” Levasseur says.

Holding on to Recent Gains
Broadus, the trans attorney and activist now in D.C., filed his Title VII complaint with the U.S. District Court in Western Missouri in the late 1990s. Back then, he says, “There was no case law that protected trans people. Courts just summarily dismissed cases. They said that Title VII did not apply to transgender people.”

Broadus, who is Black, says he had presented as masculine long before he came out to his employer of eight years. (Broadus requested that Colorlines not name or describe his former job.) “I already looked the part. All I was going to do was the legal part, which was to change my name and gender on records. But all hell broke loose.” People at his company in Columbia, Missouri, alleged that he was behaving inappropriately, repeating a common assertion that trans people are sexually predatory.

Broadus says that as an openly trans man in Columbia in the 1990s simply going outside put him at risk for violence. Being Black made him even more vulnerable. So in 1997 Broadus was “constructively discharged” from his job, a legal term for an employer forcing an employee to resign by making the work environment too intolerable for a reasonable person to stay. “I was appalled that I could work somewhere for almost eight years and get glowing reviews, but then be constructively discharged because they didn’t understand that I was transgender,” says Broadus, who was in his early 30s at the time.

In his unsuccessful suit, Broadus based his argument on the 1989 Supreme Court decision in Price Waterhouse v. Hopkins. That ruling held that the global accounting firm Price Waterhouse did in fact discriminate against a White senior manager named Ann Hopkins when it denied her a promotion for failing to conform to gender stereotypes. Broadus argued that the Price Waterhouse decision should apply to trans people like him, who also didn’t conform.

The court summarily dismissed Broadus’ case. But 12 years later, with the Macy decision, the EEOC essentially ruled that he was correct—that the precedent of Price Waterhouse did establish that trans people were discriminated against “because of sex.”

The Macy decision came amidst other favorable rulings for trans people, including Glenn v. Brumby, a 2008 case in which a White trans editor, Vandy Beth Glenn, was fired from the Georgia General Assembly’s Office soon after coming out. A federal appeals court ruled in Glenn’s favor in 2011.

In the years following Glenn and Macy, the EEOC has decided that misusing someone’s name or gender pronoun at work and denying them access to the proper bathroom constitutes discrimination. And yet, the agency has its limits. For example, its rulings apply only to employers with 15 or more workers and they are non-binding for people working in the private sector.

EEOC decisions are binding for federal workplaces, a sector where people of color and women have been disproportionately represented because those jobs tend to have stronger protections against race and sex discrimination. But as Chase Strangio, an attorney with the ACLU LGBT & AIDS Project, points out, trans federal workers of color are asserting their civil rights in period of public-sector decline due to budget cuts and attacks on labor unions. “These things are all happening within a broader context where we have to think about justice, not just within an identity-based framework, but within an actual re-distributive social context,” says Strangio.

Electoral politics are a key part of this context. The EEOC under President Obama has interpreted Title VII favorably to transgender people, proactively litigating cases such as EEOC v. R.G. & G.R. Harris Funeral Homes Inc. and EEOC v. Lakeland Eye Clinic, P.A.

Another administration could change the trend. “Losing that [proactivity] would be devastating,” says Strangio. “The [Obama] administration and the agencies have been pushing forward expansive interpretations of existing non-discrimination laws so that LGBT people—particularly trans people—are covered in a meaningful way. That is a really important thing that we could lose.”

The easiest thing for an unfriendly administration to do would be to fail to enforce the law vigorously.

The Bathroom Wars
Even before the most recent spate of state “bathroom bills” like North Carolina’s HB2, the public restroom has been a major site of bias—and even danger—for transgender people. Says Strangio,”There is a subtle connotation going on which is fixated on trans people as fraudulent and their bodies as disgusting and freakish.” Last year the EEOC specifically declared that denying a worker access to the appropriate bathroom violates Title VII. But, notes Levasseur, some state courts have treated the agency’s decision as a suggestion, and they continue to allow bathroom discrimination. “States [shouldn’t] have one rule for when somebody is in the restroom and one rule when they’re not,” he says.

Broadus says he avoided using public restrooms during work travel in the ’90s, going as far as skipping drinks at dinner. When he began representing trans clients, he would often run into employers who did not want their transgender employees using the restroom at work. “Clients have had to go across the street to the gas station to use the bathroom. I know some people that were using it in their car.”

Lombardi recalls his supervisor at his first postal-service job stopping him on his way into the men’s restroom, and saying, “You must be going to the women’s bathroom.” While Lombardi “laughed it off,” these moments can add up. “You are constantly stressed out,” Strangio explains. “You are constantly having to go to the bathroom, you are constantly managing how and where you can do basic tasks. You can’t in any way focus on your actual job.”

How Whiteness Can Help
The time, financial, evidentiary and emotional burdens of a Title VII fight combine to make the most vulnerable people—transgender and gender nonconforming workers of color—the least likely to get legal relief. The majority of the big transgender discrimination court battles have focused on White clients working in jobs with clear qualifications. And according to Strangio, a White trans person with formal education who is fired after starting their transition or coming out has the best chance at success because courts tend to treat their Whiteness as an absence of race, thus making gender-identity discrimination most clear.

On the other hand, “there are all these ways in which trans people of color are already excluded from ever being part of the labor market and so [they] are never going to be able to bring a claim under Title VII,” says Strangio. “The ways that they are discriminated against are so much less cognizable within the legal system.”

The confluence of race and sex discrimination at work prompted legal scholar and professor Kimberlé Crenshaw to develop her now-infamous theory of intersectionality. In a 1989 article in University of Chicago Legal Reform, she wrote that in racial bias cases, “discrimination tends to be viewed in terms of sex- or class-privileged Blacks; in sex discrimination cases, the focus is on race- and class-privileged women. This focus on the most privileged group members marginalizes those who are multiply-burdened and obscures claims that cannot be understood as resulting from discrete sources of discrimination.”

Broadus had this experience in the ’90s—he filed race and sex discrimination claims and both were dismissed. He says courts are still more receptive to complainants who pick one form of biased treatment over others. “You have to pick the stronger ism. Some discrimination may have been based on transphobia, but you have more evidence based on racism.You have to explain to your clients that this is the [strongest] evidence [they have]. That doesn’t make a trans person very happy.”

Statistics on job discrimination against trans people of color are hard to find, but available surveys strongly suggest that race matters. Completed in 2011 with an update forthcoming, the landmark National Transgender Discrimination Survey used responses from 6,456 transgender and gender nonconforming White, Black, Latino/a, Native, Asian and Arab or Middle Eastern people. Participants were allowed to check more than one race, and some responses were regrouped into a Multiracial category.

Unemployment for all participants was twice the national rate, but Black, Native and Latino/a people fared the worst. Joblessness in these groups was at 26, 24 and 18 percent respectively.

Job loss due to gender identity or presentation was common as well. Twenty six percent of all respondents said they’d lost a job this way. Native and Multiracial people had the highest job-loss rate, 36 percent, followed by 32 percent of Black people. Overall, transgender women reported job loss at almost twice the rate of trans men.

Workplace harrassment was most acute among Multiracial (62 percent), Native (55 percent) and Latino/as (53 percent) participants. Physical abuse on the job was heavily concentrated among non-citizen Latino/as with nearly half reporting it. An alarming 10 percent of Asian [PDF] participants said they’d been sexually assaulted at work. (“Injustice at Every Turn” breakouts of Black [PDF], Latino/a and Asian, Pacific Islander and South Asian [PDF] reponses are available here.)

The EEOC only began tracking transgender discrimination complaints three years ago. Statistics it provided to Colorlines don’t show how many cases involved people of color. They do, however, show how many trans workers filed sex and race charges concurrently. In the past three years, between 10 and 13.5 percent of the 161 to 275 transgender people making sex-based claims have also filed a race charge. Three to 6 percent concurrently filed for national origin.

Job Interview Blues
Rajah Jones, a multiracial activist and college student who identifies as non-binary, hasn’t been able to find work since she began her transition two years ago. Despite years of retail, service and office experience, the 35-year-old has been turned down by stores, theme parks and fast-food restaurants. “I’ve been on about 15 job interviews,” says the Los Angeles resident. “I always make it to the last round, nearly end up getting the job, but don’t.”

Jones says that in several cases, she found out that the person who did get the position was younger or had less experience but was gender-conforming. “I see managers, when they look at my application. [They pause] as soon as it says ‘female.’ My presentation or my voice does not match the gender that it says on the application.”

In 2015, the D.C. Trans Coalition conducted what it calls the largest local-level survey of trans and gender nonconforming people. Forty nine percent of respondents of color reported being denied a job because they were perceived as trans, compared to 30 percent of White participants. Regardless of race, it is almost impossible for an individual to prove why they didn’t get a job.

Make the Road New York conducted what it describes as the first-ever New York City-based empirical investigation into employment discrimination against transgender job seekers in 2010. Then-staff attorney Chase Madar recruited two pairs of people applying for jobs at national chain stores. Testers in each pair were equal in all respects except that one was cisgender and the other was trans. One pair was White and male. The other was Asian-American and female.

“I trained the two pairs, developing resumés for each person so that they had equivalent levels of experience and education. I even trained them to present themselves in ways that made them seem equally hire-able—same energy level and similar affects,” says Madar. “I documented every single step in the hiring and training process. Even though I was dealing with just two pairs of testers it was a ton of paperwork.”

The results? The Asian-American trans woman didn’t receive a single job offer. The transgender White man got just one. Meanwhile, 11 out of 24 employers hired a cis testers, a 42-percent net rate of discrimination against the trans participants.

“It’s not like store managers told anyone, ‘We’re not hiring you because you’re trans,’ although one my cisgender testers did catch an offhand remark referring to his trans counterpart who had just been in the same store,” says Madar. “But the results were exactly what you’d expect: We found a strong bias towards hiring the cisgender jobseeker.”

According to Broadus, trans people who can “pass” for cisgender still have trouble getting hired. “Even if you appear to fit in the ‘binary,’ your records give you away because you either don’t show any work experience or your [previous] job gives away your identity and your former life,” he notes.

Broadus himself struggled to find a job after filing his Title VII suit. Eventually he opened his own legal practice and Lincoln University, where he taught part-time, created a full-time position for him. “Before I started the trans work, I would get interviews based on my prior work, but when I would walk in and it was clear [they realized] I was trans, it was like, ‘We won’t be calling you back.'”

Jones currently cobbles together an income through a small disability payment she gets, some funding for her trans activism and driving part-time for Uber. Briefly, she worked as a home-care aide for her ex-partner, “because they know me,” she says. “People help me here and there, [but] I’m getting into debt just to get by.”

As studies point out [PDF], trans people of color suffering job discrimination often end up doing underground economy work to survive. But simply “walking while trans” makes people of color—especially women—vulnerable to aggressive police profiling.

“One of the realities that trans women of color experience—Black and Latina women in particular—is the constant derailing and profiling by police as sex workers,” says Strangio, who worked on the 2013 case of Monica Jones, a Black transgender woman who was arrested by the Phoenix police for the Orwellian-sounding “crime” of “manifesting prostitution.”

Because trans women of color are profiled for arrest for everyday activities like checking into a hotel or walking down the street, many have a criminal history that bars them from employment. “When you are looking at the ways in which people’s lives are at the intersections of so much violence, it’s important [to remember] that the legal system is creating so much of that violence,” Strangio says.

Jones had a criminal record that has been cleared. Problem is, the letter that proves it is in her “deadname,” which means she has to provide prospective employers with proof of her legal name change. What should just be an administrative annoyance ends up being a choice between outing herself as gender nonconforming or losing a job because of an obsolete criminal record. Adds Broadus, “My [cisgender] clients have difficulty finding jobs if they have felonies. How are my trans clients with felonies going to find work?”

Looking at the Big Picture
Broadus never got justice in the courts for the trans and race discrimination he faced, so he decided to help bring it about in other ways. In addition to serving on the Commission on Human Rights for the City of Columbia and pushing for a strong local non-discrimination ordinance, he founded the Trans People of Color Coalition nearly six years ago. “When I traveled the country I listened and what I found was most people of color didn’t feel connected to anything. They felt like they needed something that was theirs.” Broadus’ coalition helps train non-White people as activists who can lobby, organize and fight for themselves. Unsurprisingly, he says it has been difficult to get funding for a small organization focused on people of color.

Ramirez joined Make the Road New York’s LGBTQ justice project because she wanted a proactive way to fight the workplace discrimination she had faced. The group has held the annual Trans Latina March through Jackson Heights, Queens, since 2012, and it organizes protests against specific stores and restaurants where members feel they experienced discrimination. And, inspired by labor cooperatives in Argentina, Make the Road is also starting a beauty services co-op for U.S. trans Latinas.

Everyone interviewed for this story spoke of the need for tougher, enforceable federal laws that explicitly ban all discrimination against trans and gender nonconforming people.

Broadus encourages trans workers to learn their local laws—which often have much stronger explicit protections around gender identity—and document in detail discrimination they’re living with at work.

Despite the difficulty of making complaints, Strangio says trans workers should continue to push for legal relief. “While recognizing that it is going to be harm-reduction rather than economic justice, I do think we want to keep bringing the cases under Title VII. We should keep expanding Title VII protection for people.”

Real economic justice, he says, will have to include the repeal of laws that disproportionately target transgender people, including those that criminalize sex work. He also cites an increase in public acceptance of trans people, “and not just public acceptance of White people who are fired from their job because they are trans. It has to be the full community that is experiencing all sorts of violence on the streets, when accessing shelter, when accessing food and when engaging with different sites of the government.”

In the end a singular focus on Title VII, local statutes or even broad federal laws such as ENDA or the Equality Act misses the point. “Building justice for people is probably going to come from outside the legal system,” Strangio explains. “You can have all the legal protection in the world but the law [alone] is not going to be able to remedy the types of violence and discrimination that the most vulnerable people in the trans community experience on a day-to-day basis.”

*Post has been updated since publication to reflect that Patricia Dawson did not tell Colorlines that she and her former employer reached a “settlement” on her lawsuit. She said the two sides “culminated a resolution.”

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