Plaintiff wins round in transgender case
By MARY FLOOD
mary.flood@chron. com
April 8, 2008, 10:20PM
Copyright 2008 Houston Chronicle
She says she didn't get the job because she was born male.
The company says it wasn't that, claiming she misrepresented herself.
In a letter rescinding the job, the employer complained she presented herself as a woman at her interview, but the background check revealed she was a man.
And the judge said that despite requests to end the case now, this closely watched lawsuit will go forward to mediation and, if necessary, to a jury.
Last week, U.S. District Judge Nancy Atlas, in a 31-page opinion, refused to dismiss the case of 27-year-old Izza Lopez. Born Raul Jr., Lopez claims the Houston radiology chain River Oaks Imaging and Diagnostic wrongfully pulled its 2005 offer to employ her as an appointment scheduler.
River Oaks Imaging said in legal papers that it is just following its policy of refusing to hire people whose background checks reveal they misrepresented themselves to get hired.
A law professor who specializes in these issues and a lawyer for Lambda Legal, a national gay and lesbian civil rights group, both say the case is unusual and could set at least a local precedent and possibly be cited elsewhere.
"Lopez has stated a legally viable claim of discrimination as a male who failed to conform with traditional male stereotypes, " Atlas wrote. Lopez's suit said she'd identified as female for years and she has been accepted as female by friends and family for some time.
Motivation an issue
The judge said if a jury gets the case, it will have to decide whether the company was just following policy on interview misrepresentations and made a decision without regard to Lopez's sex or whether Lopez's gender nonconformance actually motivated the company.
Atlas noted that Lopez put both her male given name and female adopted name on her River Oaks Imaging employment application papers and her background check papers. The judge also said a River Oaks Imaging employee knew Lopez was a transgender female.
Sara Benson, a visiting professor at the University of Illinois College of Law who writes on sexual orientation legal issues, said it is a victory for Lopez that she got the case to proceed to trial.
"This opinion creates something people can cite. It can be used to persuade," she said, even though a Houston trial court does not rule other federal courts.
She said it's relatively rare in an employment discrimination case for a judge to find there might be direct evidence of discrimination, as with the letter in this case.
Benson said the letter rescinding the job offer might be seen by a jury as a reflection of a "neutral policy" against hiring individuals whose background checks conflict with their applications or as a "cover-up for sex discrimination. "
Happy with decision
Lopez, who works with medical records, said this week that she's grateful the judge is letting the case go forward.
"I'm happy the judge's order recognizes the strength of my claim," she said.
She said she doesn't see herself as someone who wants to be in a public fight, but she felt the injustice was too much to let pass.
"I never wanted any of this. Somehow it found me," she said.
"I hope that everything I'm doing eventually is advantageous for some other transgender person. I hope I am not doing it in vain," said Lopez, who has legally changed her first name from Raul to Izabella.
Not a protected status
Lopez is not specifically claiming she was discriminated against because she is a transgender woman.
Being transgender is not a legally protected status. Rather, her legal point is that she was discriminated against because she did not meet the gender stereotypes of her would-be employer, a matter the U.S. Supreme Court has said can be protected.
In that case, a female associate at an accounting firm was passed over for promotion because she did not meet sexual stereotypes regarding behavior and appearance.
Lopez, who after being told she was hired by River Oaks Imaging quit her old job and couldn't get it back, is seeking damages for lost pay and benefits, and for emotional distress, pain and suffering.
'Not part of what we do'
River Oaks Imaging CEO Jim King said he cannot discuss the Lopez case.
"We are an equal opportunity employer and we have a diverse group of employees," he said. With 12 offices, River Oaks Imaging has about 400 employees, he said.
"We are very proud of our record of promoting employees," King said.
"Discrimination is not part of what we do."
He said the company does not believe it did anything wrong.
Mediation may not help
Howard Dulmage, the Houston lawyer for River Oaks Imaging, said the firm had a transgender employee when Lopez applied and has many gay and lesbian employees as well.
He said this case may have started with a misunderstanding, "but a lot of gas got thrown on the fire because of issues that are bigger than just this case."
Dulmage said he does not expect mediation will work because his client and Lopez are so far apart and his client had no ill intent in this matter.
Lambda Legal lawyer Cole Thaler of Atlanta, who handles transgender cases for the group and is working on Lopez's, said the judge's opinion "affirms that transgender people are not being deceptive by being themselves."
Thaler said this appears to be the first time in this federal circuit that such a case has been allowed to proceed.
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