Transgender Employee Loses Groundbreaking Discrimination Case On The Merits

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Losing The Battle After Winning The War, Transgender Employee Loses Groundbreaking Discrimination Case On The Merits: MCAD v. Lutco, Inc., MCAD Docket No. 98-BEM-3695 (2009 WL 2151780)

A male-to-female transgender complainant in a groundbreaking discrimination case before the Massachusetts Commission Against Discrimination (“MCAD”) recently lost her case on the merits.  In a complaint filed with the MCAD in 1998, complainant Charlegne Millet claimed her employer, Lutco, Inc., harassed her, subjected her to disparate treatment, and retaliated against her because she is transgendered.  Lutco moved to dismiss the complaint on the grounds that discrimination based on an individual’s transsexual status does not constitute sex discrimination under Massachusetts’ anti-discrimination statute, M.G.L. c. 151B, §§ 1, et. seq.  The full Commission of the MCAD concluded in 2001, however, for the first time, that a transgender employee is protected from sex discrimination under the provisions of Chapter 151B.

The case then proceeded to a public hearing on the merits.  In support of her allegations, Millet claimed her supervisor listened to music that contained the word “queer” in the lyrics and, when Millet objected, her supervisor responded, “they’re singing about you.”  The only other evidence proffered by Millet in support of her claim was that fellow employees shunned her at work and she was fired shortly after circulating a memorandum that criticized her supervisor’s job performance.  In its defense, Lutco introduced evidence that it acted swiftly to address the supervisor’s insulting remark, demanding he treat Millet with respect.  There were no further incidents involving the supervisor.  Lutco also accommodated Millet’s requests for leave to undergo medical procedures relating to her gender reassignment surgery and openly demanded that all employees treat Millet with respect throughout the reassignment process.  As for her termination, Lutco offered evidence that Millet was hired for a specific assignment that had been completed, her performance was deteriorating, she publicly criticized her supervisors and co-workers (even after being warned not to do so), and often announced openly her desire to work elsewhere.

The MCAD Hearing Officer found for Lutco and dismissed Millet’s complaint.  Millet appealed to the full Commission, which affirmed on July 10, 2009. The Commission held that the Hearing Officer’s finding was substantially supported by the record, which revealed that Lutco acted swiftly and effectively in response to the supervisor’s singular, inappropriate remark.  Lutco also acted with compassion and support during Millet’s transformation.  The MCAD further observed that the co-workers’ impolite behavior did not amount to discrimination, but rather suggested that they were uncomfortable with Millet’s admitted tendency to openly discuss her physical anatomy and personal sex life.  Finally, the Commission agreed with the Hearing Officer that the complainant’s memorandum criticizing her supervisor’s work could not be the subject of a retaliation claim because it did not reference discrimination and, thus, was not a “protected activity.”

Millet may have lost her personal battle, but she undoubtedly won the war.  The 2001 MCAD decision was a landmark ruling for transgender employees throughout the Commonwealth, guaranteeing, at least for the time being, that when it comes to workplace discrimination, transsexuals will be afforded protected status.  When and if Massachusetts appellate courts interpret M.G.L. c. 151B, § 4, in the same context, it remains to be seen whether they will adopt the same expansive meaning of the term “sex” as the MCAD.