Dallas Area Rapid Transit reportedly placed a transgender bus driver on paid administrative leave Sunday, April 18 in response to written comments she made suggesting that the agency discriminates against employees.
The comments accusing DART of discrimination were made on cards that allow drivers to report maintenance problems with their buses at the end of their shifts, sources said. DART maintained that the driver was defacing agency property by using the cards for another purpose.
DART notified the driver that she was being placed on administrative leave when she arrived for her shift on Sunday, according to reports. The driver met with her supervisor today and agreed to stop using the cards to make comments about alleged discrimination. She will return to work on Tuesday.
Pamela Curry, a trans activist who is a friend of the driver’s, called the comments on the cards “an act of desperation,” because the employee feels she has no other way to speak out about the alleged discrimination.
Last year, the transgender employee asked DART to change her gender from male to female in personnel records. But DART objected and prepared to challenge a family court judge’s order granting the employee a gender-marker change. The judge overturned the order before DART filed its motion challenging it.
The employee also alleges that her supervisors have at various times told her not to wear dresses or long hair at work, and not to use women’s restrooms at the bus yard. The employee, who’s worked for the agency for 25 years, began transitioning in 2003 and had sexual reassignment surgery in 2006.
Outcry about the case from the LGBT community has prompted DART to consider adding trans protections to its employment nondiscrimination policy. A final vote on the proposed policy change is expected in June.
“Even as they work through the process of adding protections, they’re being very cold about it,” Curry said.
Curry has acted as a spokesperson for the employee, who says she’s prohibited from talking to the media.
DART spokesman Morgan Lyons said Monday afternoon he didn’t have any information about the incident but would look into it.
UPDATE: Lyons got back to me this morning but said he can’t comment because it’s a personnel matter and therefore exempt from public records requirements. I informed Lyons that records related to disciplinary action typically aren’t included in this exemption. “We’re talking about a specific employee, and I’m just not going to comment on that,” Lyons responded. Guess we’ll be filing a formal request.
8 Comments
She is indeed back on her route’s today.
I can understand her frustration being told by DART’s DEOC (their internal version of EEOC) that its not discrimination because she isn’t protected by law or policy; I would be frustrated too
When she has been beat down by DART to the point that the only means she can speak out for herself is comments on a maintenance card (in the box that says COMMENTS) and she is placed on administrative leave, speaks volumes about DART’s staff, HR and DEOC/EEOC.
Pamela, despite what DART may be saying, the driver *is* protected against discrimination against her because she isn’t conforming to gender stereotypes (i.e., because she’s transgender) under Title VII (the federal law banning sex and other discrimination in employment). (This is the same legal theory that Diane Schroer used to win $490,000 from the Library of Congress last year for rescinding her job offer after they discovered she was trans.)
I strongly recommend that she contact the EEOC in Dallas in person or online (she can find contact information at EEOC.gov) and discuss filing a sex discrimination complaint against DART. They can also tell her about Title VII’s protections against retaliation for asserting a claim of illegal discrimination.
~An attorney who knows
Abby – IANAL – but that ruling only applies to that circuit. Others differ.
See Etsitty vs Utah Transport Authority 05-4193 for example in the 10th circuit
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“Because this court concludes transsexuals are not a protected class under Title VII and because Etsitty has failed to raise a genuine issue of material fact as to whether UTA’s asserted non-discriminatory reason for her termination is pretextual, this court concludes the district court properly granted summary judgment on Etsitty’s Title VII claims.
…
Although this court has not previously considered whether transsexuals are a protected class under Title VII, other circuits to specifically address the issue have consistently held they are not. See Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1084 (7th Cir. 1984); Sommers v. Budget Mktg., Inc., 667 F.2d 748, 749-50 (8th Cir. 1982); Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662-63 (9th Cir. 1977).”
The SCOTUS has refused certiori, despite the obvious contradictions.
That’s why we need a federal ENDA. But it’s worth a try anyway, maybe the jurisdiction is more progressive than, say, the 9th circuit.
Shame on DART. The City of Richardson, led by City Manager Bill Keffler and then-Police Chief Ken Yarbrough, fully supported my transition from male to female in late 2000 even though there was no specific law protecting my employment as a Richardson police officer. Their high ethical standards and courage in the face of a possible backlash (which never came) demonstrate the utter cowardice of an government entity the size of DART. This is yet more evidence of the need for a fully-inclusive Employment Non-Discrimination Act.
Having attended the committee meeting at which non-discrimination was discussed, I got the impression from those committee members speaking that they truly want to have a fully-inclusive non-discrimination policy in place.
I think the disconnect between not wanting to discriminate and interfering in the gender-marker case is that some members of the DART board and the attorneys who intervened do not actually know what a transgender person is. They don’t actually understand what it is they interfered with. Several of us at the meeting agreed.
It was the only explanation we could come up with to explain their genuine desire not to discriminate and their blatant act of discrimination.
Zoe, I understand quite well that Schroer is not binding precedent anywhere (not even in the D.C. Circuit, since it was only a trial, not an appellate, court decision). However, that decision is quite persuasive in its reasoning, and more so, since it’s from a D.C. court, and likely to represent the modern trend of judicial decisions in this area, since it is firmly grounded in the Supreme Court’s decision in Price Waterhouse v. Hopkins, the decision in Etsitty notwithstanding. Several state courts and administrative agencies have adopted the Price Waterhouse sexual stereotyping analysis in interpreting their state bans on sex discrimination. Also, contrary to your implication, the Ninth Circuit has accepted the Price Waterhouse theory of sex discrimination. Nichols v. Azteca Restaurant, 256 F.3d 864 (9th Cir., 2001). Finally, the U.S. Department of Justice has taken the position that the Price Waterhouse theory of sex discrimination applies under both federal law and the U.S. Constitution.
Of course, there is always uncertainty when asserting any legal right, but it’s extremely important that trans people in the U.S. not take the attitude that the law provides no protection for us, when, in fact, this is one of the few areas of law where we have *more* rights that the LGB. We must assert the few rights we have; otherwise, they’re useless. That’s why I hope Pamela and the DART employee’s other friends will tell her that DART is violating the law in punishing her for asserting her right to be free from discrimination and encourage her to assert her rights by complaining to the EEOC.
Abby, I agree with all that you say. Yes, we need to keep pushing, and yes, we may win. We certainly should win. But there have been some outrageous decisions in the past, have there not? Anyone engaging in expensive legal action should be made aware that the court system is rife with transphobia, and nothing is certain. On the other hand, as you said, the legal reasoning in Schroer is powerful, even brilliant.
By asserting that we have legal rights often enough and strongly enough, we may even make it so. Advise her to assert strongly to DART that the reasoning in Schroer applies now, and that a Title VII claim will likely succeed when it may not have in the past.
I’m in Australia, and IANAL just a Rocket Scientist. I don’t even know what circuit has jurisdiction, nor who the judges are. I do think that the fact that in Lawrence, the new BC was *not* ordered to be changed back is very significant, even if the BC was not honoured.
This is a can of worms that no-one wanted disturbed. It provided plausible deniability and ambiguity to the far right, while effectively allowing documentation change under the radar. I think it’s time to remove the ambiguity, one way or another. Risky, but we have to now.
Look for an official press release to Dallas Voice from DART Monday evening, hint good news