Schroer v. Billington
577 F. Supp. 2d 293, 2008 U.S. Dist. LEXIS 71358, 91 Empl. Prac. Dec. (CCH) 43,333 (2008)
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Rule of Law:
An employer's refusal to hire an applicant because the applicant is transgender and does not conform to the employer's sex stereotypes constitutes discrimination "because of...sex" under Title VII. Discrimination against an individual because they are transitioning from one gender to another is also literally discrimination "because of...sex."
Facts:
- Diane Schroer, a male-to-female transsexual, applied for a position as a Specialist in Terrorism at the Library of Congress in August 2004, using her then-legal name, David Schroer.
- Schroer was exceptionally qualified, having served 25 years in the U.S. Armed Forces, including in Special Forces, retiring as a Colonel with a continuous Top Secret security clearance.
- In mid-December 2004, Charlotte Preece, the selecting official, offered Schroer the position after she emerged as the top candidate from the interview process, and Schroer accepted.
- On December 20, 2004, Schroer had lunch with Preece and disclosed that she was transgender and would be transitioning to live full-time as a woman, starting work as 'Diane'.
- Preece expressed surprise and concern, particularly about Schroer's credibility with Congress and military contacts, and thought photos of Schroer in feminine attire looked like 'a man dressed in women's clothing.'
- The next day, December 21, 2004, Preece called Schroer and rescinded the job offer, stating Schroer was 'not a good fit.'
- Preece then offered the position to the second-choice candidate, John Rollins.
Procedural Posture:
- Diane Schroer filed a lawsuit against the Librarian of Congress in the U.S. District Court for the District of Columbia, a federal trial court.
- The complaint alleged that the defendant denied her employment because of her sex, in violation of Title VII of the Civil Rights Act of 1964.
- The court denied the defendant's motion to dismiss in a prior ruling.
- A bench trial was held before Judge James Robertson from August 19-22, 2008.
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Issue:
Does an employer's decision to rescind a job offer to a transgender applicant, based on the applicant's gender non-conformity and stated intent to transition from male to female, constitute discrimination 'because of...sex' under Title VII of the Civil Rights Act of 1964?
Opinions:
Majority - Judge James Robertson
Yes. The refusal to hire Schroer was discrimination 'because of...sex' under Title VII, based on both sex stereotyping and a literal interpretation of the statute. The court found that the Library's proffered non-discriminatory reasons—concerns about security clearance, trustworthiness, and distraction—were pretextual. The Library made no meaningful inquiry into Schroer's security clearance status and its concerns about trustworthiness were belied by the facts. Instead, the evidence showed the decision was based on Preece's reaction to Schroer's gender non-conformity. Under the precedent of Price Waterhouse v. Hopkins, discriminating against an individual for failing to conform to sex stereotypes is a violation of Title VII. Preece's discomfort with a masculine Special Forces Colonel transitioning to a woman is a clear example of acting on sex stereotypes. Furthermore, the court held that discrimination based on the fact of a gender transition is literally discrimination 'because of...sex.' The court analogized this to firing an employee for converting religions, which would be unambiguous religious discrimination. Just as the statute protects against discrimination for a change in religion, it protects against discrimination for a change in sex.
Analysis:
This case was a landmark decision in employment law for transgender rights before the Supreme Court's ruling in Bostock v. Clayton County. It provided two powerful and distinct legal theories for transgender plaintiffs under Title VII. By grounding one theory in the established Price Waterhouse sex-stereotyping framework, it offered a familiar path for courts, while the second, more direct theory—that discrimination based on gender identity is literally discrimination 'because of sex'—was groundbreaking. This latter argument simplified the claim by avoiding the complexities of stereotyping and directly challenging older precedents that had carved transgender individuals out of Title VII's protections. The decision's persuasive reasoning influenced subsequent jurisprudence and helped lay the groundwork for the eventual recognition of gender identity as a protected class under Title VII.
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