Discrimination law

Here's a piece I wrote for the Connecticut Law Tribune regarding a gay schoolteacher's discrimination lawsuit:

A former Hartford elementary school teacher alleges she was forced to quit her job after school administrators mistreated her when they found out she was married to a woman. The case could test the scope of protection provided by the federal Civil Rights Act of 1964 in claims of discrimination based on sexual orientation.

Lisa Boutillier, a Colchester resident, alleges that her bosses at the Noah Webster MicroSociety Magnet Elementary School in Hartford violated Connecticut state law barring discrimination based on sexual orientation, medical condition and physical disability. She also alleges the school district violated the Civil Rights Act and the federal American with Disabilities Act.

Boutillier's spouse is unnamed in court papers and also works in the Hartford public school system.

The Hartford Public Schools district argues that the Civil Rights Act does not protect against discrimination based on sexual orientation and only applies to bias based on race, color, religion or national origin. The U.S. Court of Appeals for the Second Circuit "has stated definitively that sexual orientation is not a protected category" under the Civil Rights Act, the school district further argued.

But the plaintiff's counsel, Margaret Doherty of Doherty Law Group in Wethersfield, noted that interpretation of the law is starting to change.

"The Equal Employment and Opportunities Commission has found that claims brought by lesbian, gay and bisexual individuals alleging 'sex stereotyping' state a sex discrimination claim under Title VII" of the Civil Rights Act, Doherty argued in court papers.

Neither Doherty nor the magnet school's counsel, Hartford Assistant Corporation Counsel Melinda Kaufmann, returned calls seeking comment.

A federal judge recently gave the first round of the skirmish to the plaintiff, rejecting a defense motion to dismiss the lawsuit.

"Plaintiff has stated that the discriminatory conduct commenced after certain individuals became aware of her sexual orientation and that she was subjected to sexual stereotyping during her employment on the basis of her sexual orientation," Senior U.S. District Judge Warren Eginton stated. "Construed most broadly, she has set forth a plausible claim she was discriminated against based on her nonconforming gender behavior."

The judge also upheld the Boutillier's state law claim for constructive discharge based on her argument that she had to resign because her treatment by her employer was intolerable.

Contentious Meeting

Boutillier worked for Hartford Public Schools for seven years. When she started at the magnet school in 2006, Delores Cole was the principal.

Boutillier alleges that after Cole learned that Boutillier is gay, Cole began berating her and criticizing her in front of students, parents and other staff members. When Vernice Duke became assistant principal in September 2008, Boutillier alleges Duke also began berating her in front of others.

Boutillier said that in August 2011 she was treated for a pulmonary embolism (a blood clot in the lung) and underwent a hysterectomy. She went on medical leave until January 2012. Upon returning to school, she was reassigned as a floating "workshop/reading" teacher for the first and second grades. She also alleges that the classroom to which she was assigned was not set up for her and her need for assistance in moving heavy items was not accommodated.

In May 2012, Boutillier claims she had a contentious meeting with Duke and Cole during which they denounced her for the disruption caused by her medical absence and for not keeping them informed of when she might return.

Boutillier claims her physicians provided proper notice to school officials. After the meeting, Boutillier claims she became ill and distraught and had to go to the hospital.

"Plaintiff [went] on medical leave from her teaching duties and undergoing medical treatment for physical and mental ailments directly related to plaintiffs' intolerable working conditions," Boutillier's complaint said.

During her second leave of absence, Boutillier states that she was told that her medical insurance would be canceled. She claims there are district policies allowing employees to keep health benefits while on medical leave. The school district, however, disputes there are any such polices.

Boutillier says her work performance was exemplary.

"Throughout her seven years of employment with Hartford Public School District, Ms. Boutillier has performed her job responsibilities in a highly professional, effective and competent manner," the lawsuit said. "At no time during her employment with the defendant was Ms. Boutillier's job performance ever an issue."

Boutillier filed internal complaints against both administrators. School officials, in their court papers, said they found insufficient evidence that Cole or Duke had discriminated or retaliated against Boutillier.

Boutillier planned to return to teach in August 2013, but she says she quit because her new assignment would have brought her under Duke's direct supervision. She then filed complaints with the Connecticut Commission on Human Rights and the federal Equal Employment Opportunity Commission. Both agencies have released jurisdiction over Boutillier's complaints to the federal courts.

Boutillier is seeking reinstatement to her job, damages to compensate for lost wages and benefits, and damages for pain and suffering and emotional distress. She also claims she is entitled to punitive damages.

Here's a piece I wrote for the Connecticut Law Tribune on the state of transgender rights:

Studying landmark cases may be a hallmark of a legal education, but there are times when the lack of case law may be a good thing.

In the three years since Connecticut enacted a law banning discrimination based on gender identity, James J. O'Neill, a spokesman for the Connecticut Commission on Human Rights and Opportunities, reports that the commission has not received a single discrimination complaint based on gender identity or expression.

The dearth of complaints to the state's civil rights regulators does not mean that transgender people and those who identify with or express themselves as members of the opposite sex do not face discrimination, advocates say. But the law is working to protect people in unofficial ways, said Rachel Goldberg, general counsel for the Stamford Urban Redevelopment Commission and a board member of the national Lambda Legal organization, which advocates for the civil rights of lesbians, gay men, bisexuals and transgender people.

As an advocate, Goldberg, who is transgender, testified in favor of the Connecticut law three years ago. As an attorney, she said she was able to prevent an employee from being fired for undertaking the process to change genders by citing the Connecticut's explicit protection for gender identity. She explained that going to court is not always the best option for employees because new employers are reluctant to hire workers who have sued their past bosses.

"Having that law on the books makes [avoiding court] possible," she said.

The statute codified a 2000 ruling from the CHRO that Connecticut's nondiscrimination laws cover sex and gender identity, Goldberg said. The 2011 law puts lawyers representing individuals in gender identity cases in a stronger position, she said. While opposing counsel might have been able to argue in the past that gender-identity protection was the opinion of just one judge and a CHRO ruling is the opinion of just a few regulators, it's much harder for them to dismiss point-blank statutory language.

The update to Connecticut's law comes as federal level is expanding as well. The U.S. Department of Labor recently issued a directive to government contractors clarifying that discrimination based on gender identity and transgender status is sex discrimination. President Barack Obama has issued an executive order prohibiting federal contractors from discrimination on the basis of sexual orientation and gender identity, and the Labor Department's directive is an interim step to implement regulations to provide those protections.

The action by the Labor Department is "huge," said Jennifer Levi, director of the Transgender Rights Project at Boston-based Gay & Lesbian Advocates & Defenders, an advocacy group that has been active in Connecticut. "Gay, lesbian and transgender people continue to face an unbelievable amount of discrimination in the workplace," Levi said. "Having a prohibition against discrimination with entities that contract with the federal government really extends the commitment to nondiscrimination."

Levi also said that Connecticut's anti-discrimination law is "a very strong law. It makes it every clear that a person's gender identity is determined by a person's assertion of what it is."

Levi, who has conducted training sessions throughout Connecticut in tandem with the CHRO on the law, said that many of the state's employers have revised their employee manuals to ban discrimination on the basis of gender identity and sexual orientation.

"Laws provide legal protection but they also send an important message to those who are protected under the laws" as well as to those who have to abide by the law, Levi said.

Connecticut's law is not the only legal development that has advanced transgender rights.

Meghan Freed, of Freed Marcroft in Hartford, whose practice includes LGBT law, notes that the Connecticut Insurance Department issued a directive last December to stop insurers from having a blanket ban on providing health insurance benefits related to a person's gender identity or expression.

"The monetary reality of costs associated with gender transition is a huge deal," Freed said. "It's an affirmative thing."

The department said that an insurer's refusal to pay for medically necessary treatment regarding gender transition would be an unfair insurance trade practice. The department cited the General Assembly's enactment of the law to prohibit discrimination based on gender identity and expression.

The Insurance Department also cited Connecticut's law requiring parity between medical coverage and mental health coverage.

Medical services for gender transition are still classified as a medical disorder called "gender dysphoria," although advocates bridle at the notion that the issue is an illness of sorts, Freed said. Gender dysphoria is a diagnosis listed in the American Psychiatric Association's "Diagnostic and Statistical Manual of Mental Disorders" and refers to people who strongly identify with and want to be the opposite gender.

Goldberg agreed that the biggest impact of Connecticut's antidiscrimination laws has been in the area of health care. Before the enactment of the state law, almost every health insurance policy contained language that excluded medical coverage for people who are transgender, even if the same procedure would be available to someone who was not transgender, Goldberg said.

While there has been a lot of progress in protecting people from gender-identity discrimination, the protections for transgender youth needs a lot of work, as has been illustrated in the case of Connecticut's "Jane Doe," a transgender teen who the Department of Children and Families at one point placed in an adult prison because of her allegedly unruly personality. Attorney Aaron Romano has called the state's treatment of his client unconstitutional.

Goldberg said there are significant issues about ensuring youth can get into the right shelters, are able to use the right bathrooms, and have protection for their gender identity if they end up in the juvenile justice system, Goldberg said.