MEMORANDUM OF DECISION AND ORDER
The plaintiff in this case, Dr. Deborah Fabian, brings this action under Title VII
I. Standard of Review
Summary judgment is appropriate when the.record demonstrates that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256,
When ruling on a summary judgment motion, the court must construe the facts of record in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson, 477 U.S. at 255,
“Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper.” Bryant v. Maffucci,
The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. As to materiality, the substantive law -will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.
Id. at 247-48,
II. Background
Deborah Fabian is an orthopedic surgeon and a transgender woman.
Fabian’s four-count complaint alleges that Delphi (Counts One and Two) and HCC (Counts Three and Four) violated Title VII of the Civil Rights Act.and the CFEPA. The present motion for summary judgment was filed only by HCC with respect to Counts Three and Four.
III. Discussion
The central factual dispute in this case is whether the decision not to hire Fabian was or was not made as a result of her transgender identity. If she would have been an independent contractor rather than an employee under Title VII and the CFEPA and therefore not covered by the statutes anyway, or if transgender status is not cognizable under thém, then that factual dispute is immaterial; I will address those arguments below. But assuming for the moment that the discrimination she alleges is not outside the scope of the protective statutes, her claim is subject to the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green,
A. McDonnell-Douglas Burden Shifting
It is unlawful under Title VII for an employer “to fail or refuse to hire ... any individual ... because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C, § 2000e-2(a). Discriminatory failure-to-hire claims under Title VII
a plaintiff complaining of a discriminatory failure to hire must first make out a prima facie case of discrimination by showing that (1) [she] is a member of a protected class, (2) [she] was qualified for the job for which [she] applied, (3) [she] was denied the job, and (4) the denial occurred under circumstances that give rise to an inference of invidious discrimination. Once the plaintiff has made such a prima facie showing, theburden shifts to- the employer to come forward with a nondiscriminatory reason for the decision not to hire the plaintiff. If the employer articulates such a reason, the plaintiff is given an opportunity to adduce admissible evidence that would be, sufficient to permit a rational finder of fact to infer that the. employer’s proffpred reason is pretext for an impermissible motivation.
Vivenzio v. City of Syracuse,
There is. no dispute that Fabian was qualified for the job and that she was denied it. Whether she is a member of a protected class pertinent to her claim is disputed and is addressed below. Assuming for now that she is, she need only show that “the denial occurred under circumstances that give rise 'to an inference of invidious' discrimination” to make hér prima facie showing. She has proffered evidence that she was led "to bélieve she was all but formally hired, that she received some sort of contract (though its significance is disputed), that she relied to her detriment on such representations to such an extent that she sold her home in Massachusetts, that she was not hired after disclosing her transgender identity, and that other doctors who are not transgender were subsequently hired. Taken together, that evidence is easily sufficient to give rise to an inference of discrimination. Assuming that the employment relationship in- question is covered by the statute and that Fabian is a member of a protected class because discrimination on the basis of transgender identity constitutes sex discrimination, her prima facie case is therefore easily made. HOC proffers nohdiscriminatory reasons for not hiring her — - that in an interview she expressed reluctance about being called in-to the Hospital' at late hours and about the Hospital’s new electronic recordkeeping systems, and wanted to perform more surgery — but the factual basis of those- reasons (ie., the statements Fabian made in the interview) is disputed. A reasonable jury could find that those reasons were mere pretext and that Fabian’s disclosure of her gender identity was the reason she was not hired. The Hospital’s motion for summary judgment should therefore not be granted on the basis of any failure of Fabian to meet her burden under the McDonnell Douglas framework.
B. Employee or Independent Contractor
“Title VII cover[s] ‘employees,’ not independent contractors,” Eisenberg v. Advance Relocation & Storage, Inc.,
the hiring party’s right to control the manner and means by which the product is accomplished ... [;] [2] the skill required; [3] the source, of the instrumentalities and tools; [4] the location of the work; [6] the duration of the relationship between the parties; [6]-whether the hiring party has the right to assign additional projects to the hired party; [7] the extent of the hired party’s discretion over when and how long to work; [8] the method of payment; [9] the hired party’s role in hiring and paying assistants; [10] whether the work is part of the regular business of the hiring party; [11] whether the hiring party is in business; [12]the provision of employee benefits; and [13] the tax treatment of the hired party-
Reid,
Weighing the Reid factors is a highly fact-specific task, and “a court must disregard those factors that, in light of the facts of a particular case, are (1) irrelevant or (2) of indeterminate weight — that is, those factors that are essentially in equipoise and thus do not meaningfully cut in favor of either the conclusion that the worker is an employee or the conclusion that he or she is an independent contractor.” Eisenberg,
It is clear that doctors who staff hospitals will often fall near the borderline, and under the Reid factors or the common law of agency they may seem in some ways to be a hybrid of employee and independent contractor. Hospitals, by setting policy and performance review procedures, may have significant control over the “manner and means” of a doctor’s practice, yet medicine is a highly skilled profession and doctors will necessarily always maintain a significant degree of autonomy. Hospital physicians are not for that reason, however, simply excluded as a class from protection under Title VII. The Second Circuit has reversed a grant of summary-judgment that overemphasized the role of professional judgment as a factor militating against “control over the manner and means of one’s work,” because such overemphasis “would carve out all physicians; as a category, from the protections of the antidiscrimination statutes. While a physician, like any professional, must.be given latitude in which to choose a course of
The decision about employee status in a failure-to-hire case like this one may be even harder than in other cases of staff physicians suing hospitals, because the physician never started work and some of the dynamics that would have obtained are therefore less apparent. It is clear, however, that under the agreement that HCC had with Delphi (and under the contract Fabian received and executed), any doctors hired would be subject to the Hospital’s bylaws, rules, regulations, policies, and procedures. They would be required to maintain “Medical Staff privileges” and appropriate credentials. Their schedules were to be subject to Hospital review and approval (though the extent of control over their own schedules remains unclear). They would be required to participate in the Hospital’s programs pertaining to quality assurance, medical audit, risk management, utilization review, safety, infection control, and peer review, and to participate in various compliance programs. They would be required to follow policies and procedures with respect to- medical records and timekeeping, to participate in staff committees, and to attend staff meetings, and the Hospital would have broad authority over administration generally. Doctors would have supervisory responsibility over hospital employees (and would not, for instance, hire their own staff and assistants).
The Hospital’s right to control the manner and means of Fabian’s work would be far less than in the case of less skilled workers, but the high degree of skill and autonomy involved in being a physician is not a per se bar on employee status. She would have had far less autonomy — and the Hospital would have had correspondingly greater control over the manner and means of her work — than she would have had in an individual practice, or in a partnership with a few' other doctors, or if she merely had privileges to use the Hospital’s facilities but was responsible’ for bringing in her own patients or performing her own billing (both tasks,- in this case, were performed through the Hospital).
The location of the work and the source of the instrumentalities and' tools weigh m favor of employee status. The duration of the relationship between the parties also weighs in favor of employee status, insofar as Fabian would not have been brought in to perform a specific task until completion — like a contractor hired to shingle a roof — or a particular task intermittently on an as-needed basis, but would become a regular part of the Hospital personnel. The Hospital’s interest and Involvement in the hiring process, and the fact that it interviewed and declined to hire Fabian, weigh still further in favor of employee status. If the Hospital had simply contracted with Delphi to fill its staffing needs in the way many businesses outsource custodial duties, for instance, Delphi would have hired whomever Delphi hired and the Hospital would have had little say in the mat
None of those factors is dispositive, and I do not consider their balance to be obvious in this case, but it does appear that the relationship Fabian would have had with the Hospital if she had been hired would have been more like a traditional employee than dike a traditional independent contractor. I need not decide now as a matter of law that Fabian would have been an employee under Title VII and foreclose further evidence and argument on the issue (and she has not cross-moved for summary judgment on it), and I do not do so. But I conclude that when construing the facts of record in the light most favorable to the nonmoving party and resolving all ambiguities and drawing all reasonable inferences against the moving party, the Hospital has not shown that Fabian as a matter of law would not have been an employee under Title VII, and summary judgment should not be granted on that basis.
C. Transgender Identity and Title VII
Title VII of the Civil Rights Act, as amended, makes it unlawful for an employer “to fail or refuse 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.” 42 U.S.C. § 2000e-2(a). The effect of the words “because of ... sex” is called into question in this case. Specifically, the parties disagree about the scope of those words’ meaning, and whether they prohibit employment discrimination against transgender people because they are transgender people, or if they only encompass discrimination against women (transgender or otherwise) because they are women and men (transgender or otherwise) because they are men. Framed differently, the question is this: If an employer does not discriminate against women as a class or against men as a class, but does discriminate against transgender people (irrespective of whether they are transgender men or. transgender women), does that employer violate Title VII?
Neither the Supreme'Court nor the Second Circuit has ever addressed that question.
1. The Early Cases and Congressional Intent
The earliest appellate decisions to examine the applicability of Title VII to discrimination on the basis of transgender identity were Holloway v. Arthur Andersen & Co.,
The Ninth Circuit in Holloway acknowledged that “[tjhere is a dearth of .legislative history” on the relevant provision, at least in part because “[t]he major concern of Congress at the time the Act was promulgated was race discrimination,” and “[s]ex as a basis of discrimination was added as a floor amendment one day before the House approved Title VII, without prior hearing or debate.”
The Eight Circuit in Sommers ruled along the same lines. “[FJor purposes of Title VII,” the Court held, “the plain meaning must be ascribed to the term ‘sex’ in absence of clear congressional intent to do otherwise,” and “the legislative history does not show any intention to include transsexualism iri Title VII.”
■ Both Holloway and Sommers rely on the supposedly “plain” or “traditional” meaning of the word “sex,” but they do not elaborate on.that supposed meaning; and, as I will discuss below (and as one might infer from Judge Goodwin’s Holloway dissent), their treatment of the word is superficial, The apparently dual grounds for those , decisions might therefore be collapsed into one, because both decisions use the “plain” meaning of the statute as a proxy for Congressional intent: rather than - examining what the word “sex” means, they intuit what Congress must have intended the statute to do with respect to sex (while acknowledging that
In the years since Holloway and Som-mers, the use of legislative history and congressional intent has become more controversial and less prominent in statutory interpretation, and the addition of the word “sex” to .Title VII is about as vivid an example imaginable of why that change occurred. U.S. District Judge John F. Grady in the . Northern District of Illinois (in a decision issued from the bench and reported in the form of a transcript) disagreed with Holloway and Sommers about the Congressional intent behind the sex amendment to Title VII:
those who have looked a little further into the matter know that this amendment introducing. sex into the picture was a gambit of a Southern senator who sought thereby to scuttle the whole Civil Rights Act, and, much to his amazement and no doubt undying disappointment, it did not work, We not only got an act including race discrimination, which he had sought to bar, but we got sex as well.
Ulane v. Eastern Airlines, Inc.,
Fifteen years later, Justice Scalia writing for a unanimous Supreme Court applied that same lens to Title VII in a decision holding that male-on-male sexual harassment' claims fall under its purview:
As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.
Oncale v. Sundowner Offshore Servs., Inc.,
The Seventh Circuit-reversed that decision. It agreed with and restated Judge Grady’s summary of the circumstances of the sex amendment’s adoption — it called the amendment “the gambit of a congressman seeking to scuttle” the Act, Ulane II,
By the mid-1980s — after Holloway, Sommers, and Ulane II — it was thus settled in the Seventh, Eighth,. and Ninth Circuits that Title VII did not prohibit employment discrimination on the basis of transgender identity, and that result was premised in all three Circuits on congressional intent and a “plain reading” or “traditional definition” of the word “sex.” Congress’s intention in passing the sex amendment to Title VII, however, is a highly dubious basis for interpreting the statute. And the supposed plainness of that “plain reading” — which itself may have been premised on. an intuition about what Congress would or would not have intended — is at least in tension with the contrary “layman’s reaction” of Judge Grady in Ulane I (and seemingly shared by Judge Goodwin in the Holloway dissent) that discrimination on the basis of transgender identity “relate[s] to sex or ha[s] something to do with sex,”
2. Gender Stereotyping, and the Effect of Price Waterhouse
The principal issues before the Supreme Court in Price Waterhouse v. Hopkins,
The Price Waterhouse dissent stressed that “Title VII creates no independent cause of action - for sex stereotyping,” though it considered evidence of stereotyping ;by employers to be “quite- relevant to the question of discriminatory intent.”
In the words of the Price Waterhouse plurality, the “simple but momentous announcement” that Congress made with Title VII was that “sex, race, religion, and national origin are not relevant to the selection, evaluation, or compensation of employees,” id. at 239,
The acknowledgement in Price Water-house that discrimination by means of gender stereotyping, is discrimination “because of sex” under Title VII eventually-led to a
The initial judicial approach taken in cases such as Holloway has been overruled by, the logic and language of Price Waterhouse. In Price Waterhouse, which was decided after Holloway and Ulane [I & II], the Supreme Court held that Title VII barred not just discrimination based on the fact that Hopkins was a woman, but also discrimination based on the fact that she failed “to act like a woman” — that is, to conform to socially-constructed gender expectations. What matters, for purposes of this part of the Price Waterhouse analysis, is that in the mind of the perpetrator the discrimination is related to the sex of the victim: here, for example, the perpetrator’s actions stem from the fact that he believed that the victim was a man who “failed to act like” one. Thus, under Price Water-house, “sex” under Title VII encompasses both sex — that is, the biological differences between men and women — and gender. Discrimination because one fails to act in the way expected of a man or woman is forbidden under Title VII.
Schwenk v. Hartford,
The Sixth Circuit came to the same conclusion in Smith v. City of Salem,
Discrimination against the transsexual is then found not to be discrimination “because of .., sex,” but rather, discrimination against the plaintiffs unprotected status, or mode of self-identification. In other words, these courts superimpose classifications such as “transsexual”,on a plaintiff, and then legitimize discrimination based on the- plaintiffs gender nonconformity by formalizing, the non-conformity into an ostensibly unprotected classification.
Such analyses cannot be reconciled with Price Waterhouse, which does not make Title VII protection against sex stereotyping conditional or provide any reason to exclude Title VII coverage for non sex-stereotypical behavior' simply because the person is a transsexual. -
Id. at 574-75. Discrimination on the basis of tránsgender identity is thus “no different from the discrimination directed against Anri Hopkins in Price Waterhouse, who, in sex-stereotypical terms, did not act like a woriian." Id. at 575.
Similarly, the Eleventh Circuit in Glenn v. Brumby reasoned that:
A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. The very acts that define transgender people as transgender are those that contradict'Stereotypes of gender-appropriate appearance and behavior. There is thus a congruence between discriminating against transgender and transsexual individuals and- discrimination on the basis of gender-based behavioral norms.
Accordingly, discrimination against a transgender individual because of her gender-nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender.
When an employer discriminates against someone because the person is transgender, the employer has engaged in disparate treatment related to the sex of the victim. This is true regardless of whether an employer discriminates against an employee because the individual has expressed his or her gender in ■ a non-stereotypical fashion, because the employer is uncomfortable with the fact that the person has transitioned or is in •the process of transitioning from one gender to another, or because the employer simply does not like that the person is identifying as a transgender person. In each of these circumstances, the employer is making a gender-based evaluation, thus violating the Supreme Court’s admonition that “an employer may not take gender into account in making an employment decision.”
Macy v. Holder,
The only post-Price Waterhouse federal appellate decision to uphold pr e-Price Wa-terhouse doctrine on transgender identity and Title VII is Etsitty v. Utah Transit Authority,
In sum, discrimination on the basis of transgender identity is now recognized as discrimination “because of sex” in the Ninth Circuit (as Schwenk recognized the abrogation of Holloway), the Sixth Circuit (as recognized in Smith), and in the Eleventh Circuit (as recognized in Glenn)', and the E.E.O.C. (in Macy) and has agreed with that’ authority. Discrimination on the basis of transgender identity is regarded as not constituting discrimination “because of sex” in the Tenth Circuit (under Etsitty). The ‘ continued vitality the pr e-Price Waterhouse, decisions in the Seventh and Eighth Circuits (Ulane II & Sommers, respectively) is unclear.
The split in the caselaw on the question whether employment discrimination on the basis of transgender identity is prohibited by Title VII is the result of two competing views of the effect of the words “because of sex” — which, in turn, reflect two competing views of the meaning of the word “sex.” Neither view has been very thoroughly explained or justified, but both purport to be plain readings.
The view typified by Holloway, Som-mers, Ulane II, and Etsitty is that the “plain meaning” or “traditional binary conception” of sex means nothing more than “male and female,” see, e.g., Etsitty,
The view typified -by Judge Grady’s “layman’s reaction” in Ulane I and implied by Judge Goodwin in- his Holloway dissent— and apparent in varying degrees- in the majority of post-Price Waterhouse cases— is less well described in the cases, but it interprets Title VU’s prohibition of discrimination “because of sex” to include discrimination on the basis of factors that are sufficiently- “related to sex or [that] ha[ve] something to do with sex.” Ulane I,
... There is nothing unplain, untraditional, unusual, or new-fangled about this understanding. It is simply attentive to what the words in the statute mean, and what they have meant since long before the statute was formulated.- The first definition of “sex” in Samuel Johnson’s seminal 1755 dictionary — among the earliest and most influential English dictionaries ever published — is “[t]he property by which any animal is male or female.”
Discrimination on the basis of the “peculiarities” that “typically” manifest as maleness and femaleness, or on the basis of “the property by which” people are classified as male or female, is much broader than discrimination, against women because they are women and discrimination against men because they are men — it would surely include discrimination on the basis of gender stereotypes, and just as
Judge James Robertson of the U.S. District Court for the District of Columbia has issued two thoughtful opinions in Schroer v. Billington (first on a motion to dismiss,
Imagine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer testifies that he harbors no bias toward either Christians or Jews but only “converts.” That would be a clear case of discrimination “because of religion.” No court would take seriously the notion that “converts” aré not covered by the statute. Discrimination “because of religion” easily encompasses discrimination because of a change of religion.
On the basis of the plain language of the statute, and especially in light of the interpretation of that language evident in Price Waterhouse’s acknowledgement that gender-stereotyping discrimination is discrimination “because of sex,” T conclude that discrimination on the basis of transgender identity is cognizable under Title VIL
IV. Conclusion
Employment discrimination on the basis of transgender identity is employment discrimination “because of sex” and constitutes a violation of Title VII of the Civil Rights Act. HCC hás not shown that the position Fabian sought is as a matter of law beyond the scope of Title VII as a result of being for an independent contractor rather than an employee. And Fabian has met her burden under McDonnell Douglas to make a prima facie cáse ’ of discrimination and to proffer sufficient evidence for a reasonable jury to find that the non-discriminatory reasons HCC offers for not hiring her are pr'etextual. Whether the Hospital discriminated against Deborah Fabian on the basis of her gender identity
So ordered.
Notes
. Some of the cases that will be discussed below use the word "transgender,” some use the word “transsexual,” and some use both. I preserve the terminology in direct quotations but otherwise use the term "transgender.” . "Transsexual” is an older term with a more clinical origin, and though it is used by some people who identify with it, it is not favored by others. See generally GLAAD Media Reference Guide — Transgender Issues, http://Www. glaad.org/reference/transgender. “Transgender” appears to be the more inclusive term, and it is the one Fabian uses of herself, so I follow her practice. Relatedly, the briefs on the present motion are inconsistent in their use of masculine and feminine pronouns. The better practice is to defer to the preference of the individual to whom the pronouns refer, see id.i and I accordingly use feminine pronouns throughout in deference to what would appear to be Fabian’s preference.
. HCC states both that Delphi "will likely have all counts against it withdrawn in the near future,” Def.’s Mem. 1, and that it "is no longer a defendant in this matter,” id, at 2 n.3. In fact Delphi is still a defendant and the counts have not yet been withdrawn. It may be that HCC was mistaken, that circumstances have changed, or that Delphi intends to settle and has postponed'finalizing a settlement until after a ruling on the issues in this motion, but in any event it is still formally a defendant and has not filed any dispositive motions.
. The relevant federal precedent is generally applicable to CFEPA claims as well. See, e.g., Levy v. Commission on Human Rights and Opportunities,
. I briefly note that the question whether it is ultimately for the court or a jury to find that an individual is an employee or an independent contractor remains unsettled, as the Second Circuit noted in Salamon v. Our Lady of Victory Hospital,
. The nearest the Second Circuit has come to addressing the question was in Mario v. P & C Food Markets, Inc., when it noted that "[i]t is also not clear that Mario, as a transsexual, is a member of a protected class,” and cited (without elaboration) two cases from other circuits that will be discussed below.
. Holloway is no longer good law in the Ninth Circuit, but the opinion that announced that fact did not formally overrule it; rather, it announced that "Holloway has been overruled by the logic and language of Price Waterhouse
. See generally Jo Freeman, How “Sex” Got Into Title VII: Persistent Opportunism as a Maker of Public Policy, http://www.jofreeman. com/lawandpolicy/titlevii.htm; Louis Menand, The Sex Amendment: How women got in on the Civil Rights Act, The New Yorker, July 21, 2014, http://www.newyorker.com/magazine/ 2014/07/21/sex-amendment.
. In a related but distinct line of cases, courts have generally held that "Title VII does not prohibit harassment or discrimination because of sexual orientation." Simonton v. Runyon,
U.S. District Judge Katherine P. Failla recently addressed that difficulty in Christiansen v. Omnicom Group, Inc.,
Another recent decision that addresses and exemplifies the changes to the legal landscape that Judge Failla describes, and which unlike Christiansen does pertain to transgender identity, is Adkins v. City of New York,
. Page View 1804, A Dictionary of the English Language; A Digital Edition of the 1755 Classic by Samuel Johnson, (Brandi Besalke ed.), http://johnsonsdictionaryonline.corn/7page_ id=7070 & i=1804.
, Webster’s Third New International Dictionary 2081 (1961).
. Oxford English Dictionary Third Edition, December 2008, http://www.oed.com/view/ Entry/176989. ' '
. I interpret the same way the parallel CFE-PA provision, as it stood prior to the 2011 amendment that added “gender identity or expression" to the list of protected classes. See Conn. Gen. Stat. § 46a-60. The fact that the Connecticut legislature added that language does not require the conclusion that gender identity was not already protected by the plain language of the statute, because legislatures may add such language to clarify or to settle a dispute about the statute’s scope rather than solely to expand it.