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Transitioning to a New Job
David John Schroer spent twenty-five years in the US Army and retired as a full colonel. During his military career, he held numerous command and staff positions in the Armored Cavalry, Airborne, Special Forces, and Special Operations Units, and saw combat in Panama, Haiti, and Rwanda.

Schroer graduated from the National War College and the Army Command and General Staff College, and has two masters degrees. For the last seven-and-a-half years in the military, Schroer was with the US Special Operations Command fighting international terrorism. After the 9-11 attacks, Schroer directed a classified organization that provided intelligence briefings to Vice President Cheney, Defense Secretary Rumsfeld, and the Chairman of the Joint Chiefs of Staff.

In August 2004, at the end of his military career, Schroer decided to transition to another government job. So, he applied for work as a terrorism research analyst with the Congressional Research Service (CRS), a part of the Library of Congress.

Around the same time, Schroer was also making a personal transition. Schroer was diagnosed with "gender dysphoria." This condition involves a psychological identification (gender identity) inconsistent with the person's anatomy. Schroer decided to undergo gender-reassignment therapy.

After Schroer applied for the CRS job and attended one interview as a man ("David"), CRS invited Schroer in to discuss the administrative details of the new position. At this time, however, Schroer was beginning the initial stages of sex-reassignment protocol by dressing full-time as a woman. Accordingly, Schroer explained to the CRS hiring representative about being under a doctor's care for gender dysphoria and about appearing as a woman ("Diane") when the new job started.

The next day, however, the CRS representative told Schroer that "for the good of the service" she would not be a "good fit" at CRS. The representative also thanked Schroer for her "honesty."

Feeling rejected due to her gender expression, Schroer sued CRS for sex discrimination under Title VII. In response, CRS asked the Court to dismiss the case since "transsexuals" are not protected by Title VII. Instead, CRS argued Title VII only forbids traditional sex bias, i.e., "discrimination against men because they are men and women because they are women."

However, the Court rejected that argument and said Schroer may sue for sex discrimination under Title VII. The Court noted that while "sexual orientation" (or preference) is not covered by the federal law, "sexual identity" is. According to the opinion, sexual identity "is in part a psychological question – a question of self-perception; and in part a social matter – a question of how society perceives the individual."

The Court observed that Title VII simply prohibits bias "because of sex." In this case, Schroer says she was discriminated against due to "her gender dysphoria and .. her intention to begin presenting herself as a woman." Because of "the factual complexities that underlie human sexual identity," the Court concluded, "Schroer could prove ... that the Library refused to hire her solely because of her sexual identity, and that in so doing, the Library discriminated against her 'because of sex.'" [Schroer v. Billington (DC DC 2006) no. 05-1090 JR)]

Note: Professor Ross Runkel provides a nice analogy: "If Schroer had changed from being a Catholic to being a Mormon, and the Library had refused to hire her for that reason, then I think that would be a clear-cut case of discrimination 'because of religion.' Schroer changed from being a man to being a woman, so discrimination on that basis is discrimination 'because of sex.'"

For information on this topic tailored to your company profile, request Memos:
5560 Sex Discrimination: Overview
5505 Individuals-Activities Protected from Discrimination
5345 Discriminatory Dress Codes

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