CorporateQ: A Discussion with Attorney Jillian Weiss

Note: CorporateQ is a series that focuses upon how masculine presenting gender queers are bringing their dapper selves to the workplace.

What happens when how you dress for work puts you on a collision course with your employer? For answers to this question and more, dapperQ Founder Susan Herr recently sat down with Jillian Weiss, principal of Law Office of Jillian T. Weiss P.C. She discussed why forward thinking corporations are eager to create inclusive environments for trans and gender nonconforming employees; how federal statutes can provide protections no matter where we live; and the rapidly evolving nature of law in this area.

This is an abbreviated version of our conversation.

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Susan Herr: You are an attorney whose firm represents trans and gender nonconforming people who are victims of employment discrimination. You produce a blog called Transworkplace. You’ve written a book on the topic as well as numerous research publications. Your commitment is obviously rich and deep. How did you get in to this work?

Jillian T. Weiss: I started practicing law in 1986. When I transitioned from male to female in 1998 I promptly lost my job. I spent a few years as a secretary but then went back to school, where I got my PhD in Law & Society from Northeastern University.

SH: What can you tell me about your work and your firm?

JTW: There is a great lack of resources for those who are gender non-conforming and experience employment discrimination. Many lawyers do not understand this area of the law. They don’t understand the social background. They don’t get it. So their advice is just wrong for those people.

But there is also a lot of new law in this area. A lot of people have been working hard on these issues for the past 20 years so there is a lot to work with.

I now have about a dozen cases around the country involving transgender employees. I’ve represented people who do not identify as transgender but I would consider their gender expression as transgressive.

Once I started doing this work, I very quickly found lots of clients, nearly all of whom I represent on a contingency basis. That means no legal fee is paid unless money is recovered because people in these situations do not have the kind of money needed to pay the hourly fees of an attorney. It means I often have to wait a long time before I get paid. In some instances I do not get paid at all.

For me it is a real quest for justice although I am clear that the law is not about justice. It is really about documentation and about rules. As someone who knows those rules, my role is to help people navigate that incredibly complex, nerve wracking and trauma-inducing system.

SH: Prior to establishing your law firm, you served as consultant to a wide range of Fortune 500 companies looking to address trans employment issues. What did you learn?

JTW: Companies that are more forward thinking want to be seen as diversity leaders. There are many such companies that have indicated interest in being proactive in hiring transgender and gender nonconforming people. My dissertation focused on companies that had inclusive policies in 2001, and my question was why? Why would you have that policy? You don’t have any transgender employees that you know of, and there’s no law requiring it.

And after interviewing about 40 to 50 human resources execs in companies that had these policies, I began to realize that diversity is a huge issue because to remain on top you need to be able to hire top talent.

There’s only so much you can do with a policy that says ‘we don’t discriminate.’ There is only so much you can do with an affinity group. Everyone’s got that. What you can do is demonstrate that ‘…we are on the leading edge of diversity. We don’t even allow discrimination against these people who don’t seem to work here and we don’t even know what they are defined as and we aren’t even sure what this policy is but look, this is what we do.’

SH: From what you describe, it’s like trans and gender nonconforming people are the canaries in the coalmine. Companies are sending a message that says if these folks can sing here, anyone can.

JTW: Look, the demographics of the country are changing. By 2050 we will be majority nonwhite. Companies are realizing they will not be able to do business as usual. Kudos to companies which are willing to reach out in these ways. The word hasn’t penetrated that far but forward thinking companies have really begun to lead the way.

SH: What types of employment settings are we talking about?

JTW: I have clients who are truck drivers, corporate professionals, folks who work for very large companies and small companies. We really are everywhere and that’s what folks are starting to realize. There are estimates that probably 700,000 to a million people in this country identify as transgender. And the population who might identify as genderqueer is obviously larger than that. You are talking about a lot of people. So if you have an organization of any size, you are going to run in to us.

SH: Okay, so let’s get a sense of the legal issues we are talking about when it comes to employment discrimination.

Jill WeissJTW: There is a federal law, the Federal Civil Rights Acts of 1964, which has a section prohibiting employment discrimination. Often known as Title VII, it prohibits any kind of negative employment action based on sex, among other things. The courts have interpreted that to include sexual stereotyping, meaning it is discrimination if someone is assumed to be capable or not capable of a work activity because of their sex or assumed sex, or if they are judged negatively because they are stepping outside the stereotypes expected of that sex or assumed sex. So, for example, if someone who identifies as a woman wants to wear a bowtie and a vest to work and the employer doesn’t like that and lets it be known that the employee is going to suffer negative consequences, that would be a violation of the Civil Rights Act, unless it violates a non-discriminatory dress code. Similarly, if they were called by epithets that related to their sex, gender or sex stereotyping or if they were treated in a harsh or negative manner by coworkers or managers because of that. This would apply in any kind of workplace from corporate offices, to manufacturing plants to hotels. But it only applies to companies with employees with 15 or more.

So what that means is that everyone in the United States and everywhere the Act covers, including Guam and Puerto Rico, is protected on the basis of not only of their sex but their gender identity and expression. The reason that is so important is that the United States Equal Employment Commission, which is the commission that enforces that law, has said that this is a priority for them. And the reason that is important is that all of these agencies are short-staffed. They all have way less investigators than they need and way less money. But when an issue is placed on a priority track, it means that investigators are definitely going make sure they get to those issues in a meaningful way.

SH: And by that you mean trans issues?

JTW: They have said more broadly LGBT issues.

SH: I’m surprised to hear that because you hear that our rights vary so much from state to state and city to city. How much protection does the Civil Rights Act provide for people who aren’t covered by state and local laws?

JTW: Federal law covers everyone in every state. It is really a first line of defense. Yes, it is true that protections vary from state to state and city to city. One of the things we know as attorneys operating in these areas is that the state law may not have as much teeth in it as the federal law. In a few instances, it has more. For instance, in New York City and in San Francisco, the city laws are actually stronger than the federal laws. But for most places the federal law is probably the best line of defense. The federal government has a whole enforcement mechanism that kicks into place and employers know that when the Equal Employment Opportunity Commission comes calling, this is not the kind of thing you just slough off.

You are protected now. We have cases all over the country. That is why we exist.

SH: From a legal perspective, what else can you say about those of us transgressing men’s fashion in the workplace?

JTW: Well it’s a very important question and I think it is very clear under the law that gender expression, or as the courts call it sex stereotyping, is protected as a category under the law. Harassment or hostile work environment is certainly prohibited but the way it has been written in the Civil Rights Act is that it has to be severe or pervasive. It can’t just be an isolated comment. So if it’s one comment, it’s not nice but it’s probably not a violation. But if it’s done twice it might be, depending on how, when these things occur and what other things are occurring.

SH: Employers certainly have the right to expect an adequate level of professionalism in dress. Can we argue that if it is professional for one gender, it is professional for another?

JTW: I don’t know that I would necessarily approach it as a one for one. Maybe, but the key question regarding discrimination is whether or not this is related to gender expression or sex stereotyping. And I think you have raised a good point: if men are allowed to dress one way and women are not, then the question becomes: is this gender motivated?

Now I should mention a case that came down in the 9th Circuit called Jespersen v. Harrah’s. It involved a woman who had worked as a server at Harrah’s and they came up with a new program called “Personal Best.” What “personal best” meant for women was putting on make-up and curling their hair. Ms. Jespersen was not a woman who wore makeup. She had a somewhat masculine look but she did identify as a woman. She said “…wearing make-up makes me feel like I’m dead.” So they fired her. To those people seeing this as gender expression, it seemed obvious that this is discrimination based on sex stereotyping, but the court said it wasn’t. And this shows how much of a word game the law really is, and how important it is to think out these cases. The court said there was no showing of an unequal burden. The men had to wear certain types of things and style themselves in certain kinds of ways. The women are asked to do the same thing and it’s permitted to have variant dress code. So since the burdens are not unequal, there is not inequality of the sexes. They are just being asked to follow different rules. That ruling is much bemoaned by those of us in field, but it only applies in the 9th Circuit (states on the West Coast). We are hopeful that other federal courts will not look at it that way because it does not address the nature of people’s gender.

SH: I know you can’t retrofit this ruling but what if she had identified as genderqueer?

JTW: That is another complicated question because there was case in New York where you had a hairdresser who worked for a well-known salon called Bumble and Bumble. The case was known as Dawson v. Bumble and Bumble. The plaintiff identified as a lesbian, and as gender nonconforming. She said she was treated poorly because of her sexual orientation, as protected by NYC law. She also said she was mistreated as someone who is gender nonconforming under the federal law prohibiting sex discrimination. She said they made fun of her hairstyle and her clothing. The federal Court of Appeals was totally unimpressed because the salon argued “…we employ lots of lesbians and they don’t seem to have a problem.” They also said she was suing for sexual orientation discrimination so she couldn’t possibly win under the federal law for sex discrimination, because the federal law is generally not considered to include sexual orientation. So it was a huge mess. The Court punted, deciding that since the line between gender non-conformity and sexual orientation was unclear in that case, the federal law didn’t cover it. So you must have a lawyer who knows this area, and can construct the case according to these arcane legal rules.

To get back to your original question, courts have to be approached carefully because they work well when you work them well but if you don’t do the right thing in the right order it doesn’t always work.

SH: I thought where you were headed was something like genderqueer not being covered because it’s outside the binary?

JTW: No, it’s covered, but the courts get confused. So, speaking of binary, the law looks at this as either you are discriminated against because of your sexual orientation or your gender. So part of our job is to steer the progress of the law because people can fit in to many different categories. You can be genderqueer and a lesbian or straight or bisexual. The courts are very slow to catch up to all this.

SH: I’d love to get your take on where age fits in to this equation. Those of us who are older may be more likely to conform for a wide array of reasons including expectations with which we were raised, higher-pay grades and more vulnerability if we were to lose our jobs. What’s your take?

JTW: My sense is there is an intersectionality. As you get older, your gender identity is going to raise some issues in terms of non-forward thinking employers.   Age will often become an issue because older people often have more experience and are paid more. Sometimes it’s because employers just prefer people who can be trained in their way and more easily controlled, shall we say. At the other end of the spectrum, most of the clients we have are not people in powerful positions, not CEO’s or CFO’s, not even a lot of managers. We are really seeing frontline people who management feels they can more easily get rid of. Age can play a part in that as well.

SH: So I’m really beginning to understand how complicated this all is. As you said earlier, these laws and systems are very complex and rapidly evolving. Your job is to help clients navigate this landscape.

JTW: If people think they are being discriminated against, they can call on us. That’s why we are here.

SH: Thanks, so much, for taking time for this interview. I couldn’t be more grateful for your efforts on our behalf.

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