Case Study: Johnson v. Fresh Mark, Inc - Essay Example

SELENA JOHNSON v. FRESH MARK, INC., and BRIAN WESS 337 F.Supp.2d 996, 999 (N.D. Ohio 2003), aff’d, 98 Fed. Appx. 461, 2004 WL 1166553 (6th Cir. May 18, 2004)Issue: The issue to be decided here is whether or not Respondents violated Title VII of the 1964 Civil Rights Act when they terminated Plaintiff, a transsexual employee.Facts:Selena Johnson was a pre-surgical transsexual woman. Born male, she represented herself as a woman and was hired as such by defendant Fresh Mark, Inc. After complaints were received that Johnson was seen using both the mens and womens restrooms, Fresh Mark brought this to her attention.

Johnson responded, through counsel, that she was "not entirely male nor entirely female" and preferred for her to use a female or unisex restroom. However, because the gender stated on her drivers license that she was male, her employer decided she was in fact male and would have to use the mens restrooms. Johnson refused to return to work under that condition. When she failed to appear for work on three consecutive days, she was terminated under the employers absenteeism policy.Decision:The district court did not err in concluding that Title VII and Price-Waterhouse was inapplicable to the instant case.

Judgment of the district court affirmed on appeal. Case dismissed.Analysis: How HR function may be affected by the decision Title VII of the 1964 Civil Rights Act states that “It shall be an unlawful employment practice for an employer … to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin…” In that statute, the denotations of the word “sex” has come under controversy in the present-day context that allows social recognition of homosexuality, lesbianism, transgender modification and/or transsexuality, as distinct social orientations.

The question is thus raised: Is transsexuality a “sex” that is accorded the protection of Title VII of the Civil Rights Act? Price Waterhouse v. Hopkins, [490 U.S. 228, 104 L. Ed. 2d 268, 109 S.Ct. 1775 (1989)], a case that preceded Johnson, ruled that Title VII prohibited employer discrimination against employees because they failed to conform to sex stereotypes (including stereotypical norms about dress and appearance). Johnson argued that on the basis of this decision, transsexuals should be accorded the protection of the Civil Rights Act.

Together with Johnson, however, several cases have ruled that the case of the use of comfort rooms is not a matter of “sex stereotyping”; were it so, then allowing transsexuals to use both comfort rooms should mean that men or women should be allowed the same entitlement, to use both comfort rooms as well (i.e., for men to use the women’s restrooms and vice-versa). Clearly, the proposition becomes then absurd, and argues against the classification of restroom use as sex stereotyping. (Etsitty vs.

Utah Transit Authority, et al., 2005 U.S. Dist. Lexis 12634. 2005). Johnson, Etsitty, Ulane v. Eastern Airlines, Inc. 742 F.2d 1081 (7th Cir. 1984), and Sommers v. Budget Mktg., Inc., 667 F.2d 748 (8th Cir. 1982), as well as every federal court that has dealt directly with this issue have all held that “Title VII does not prohibit discrimination based on an individual’s transsexualism,” (Johnson v. Fresh Mark, Inc.) clearly indicating its position that Title VII does not afford the same protection to transsexuals.

Furthermore, the court stated in Nichols v. Azteca Rest. Ent., Inc., 256 F.3d 864 (9th Cir. 2001): “We do not imply that all gender-based distinctions are actionable under Title VII. For example, our decision does not imply that there is any violation of Title VII occasioned by reasonable regulations that require male and female employees to conform to different dress and grooming standards.” This has implications for HRD managers and human resources policy-makers. An employer is allowed to distinguish between males and females, and prescribe appropriate behaviour, dress codes, and to require them to use particular restrooms.

This is but proper and reasonable practice. It is important to afford other employees the privacy and convenience of using a restroom used by a individuals of a single sex. HRD personnel should therefore take the added precaution of securing a positive statement from the applicant seeking employment of his/her gender, whether male or female, and to confirm this upon interview. During such interview it should also be made clear to the applicant that he pursuant to HRD policy, he/she shall be required to comply with certain gender-distinctive behaviour, and to secure his/her acknowledgement and agreement to this.

It is not against the law to require such conforme as condition for employment. Furthermore, should existing employees wish to undertake such transgender modification, they should be required to inform HRD and to come to an agreement as to which restroom he/she is required to use during and after the transition. Furthermore, HRD managers and human resources policy makers should keep in mind that whatever behaviour they allow their employees who are “transsexuals” should be within the proper behaviour they would allow normally allow males and females, otherwise the unjust discrimination will work against the latter group, putting transsexuals at an unjustified advantage.

REFERENCESEtsitty vs. Utah Transit Authority, et al., 2005 U.S. Dist. Lex 12634. (2005)Nichols v. Azteca Rest. Ent., Inc., 256 F.3d 864 (9th Cir. 2001)Sommers v. Budget Mktg., Inc., 667 F.2d 748 (8th Cir. 1982)Title VII of the Civil Rights Act of 1964, The U.S. Equal Employment Opportunity Commission, as seen in http://www.eeoc.gov/policy/vii.html, Retrieved March 15, 2009Ulane v. Eastern Airlines, Inc. 742 F.2d 1081 (7th Cir. 1984)