Rescinding Offer to Transgender Job Applicant Was Discrimination

September 22, 2008 ( - The U.S. District Court for the District of Columbia has ruled that the Library of Congress violated Title VII's prohibition on sex discrimination when it rescinded a job offer to an applicant who expressed intent to undergo a sex change.

In writing for the court, U.S. District Judge James Robertson said the Library’s stated reasons for refusing to hire Diane Schroer were pretexts for discrimination. Specifically, Robertson said the Library’s asserted primary concern that Schroer would have to undergo a new investigation for security clearance that would delay her start date was not supported by testimony which indicated that Schroer’s prior security clearance would simplify the process and that she could be issued a waiver to work conditionally.

The court found that the individual responsible for making hiring decisions did not inform all parties involved in the hiring and security clearance process of the fact Schroer already had clearance from another position.

In addition, Robertson said the Library’s proffered legitimate nondiscriminatory reasons for not hiring Schroer – that she might lack credibility with Members of Congress and that she might be unable to maintain contacts in the military – were explicitly based on her gender non-conformity and her transition from male to female and are facially discriminatory as a matter of law.

Lastly, citing a U.S. Supreme Court decision in which it found Title VII of the Civil Rights Act reaches claims of discrimination based on sex stereotyping, Robertson said that in refusing to hire Diane Schroer because her appearance and background did not comport with the decisionmaker’s sex stereotypes about how men and women should act and appear, the Library violated Title VII. The individual responsible for hiring decisions testified that she saw pictures of Schroer that “looked like a man in women’s clothing,” and that her difficulty comprehending Schroer’s decision to undergo a gender transition was heightened because she viewed David Schroer not just as a man, but, in light of his Special Forces background, as a particularly masculine kind of man.

When David Schroer applied for the position of Specialist in Terrorism and International Crime with the Congressional Research Service (CRS), he scored the highest interview score of all applicants and was unanimously chosen by the selection committee for the job. After accepting the job offer, Schroer invited the selecting official to lunch and informed her of the intent to undergo a sex change.

The following day, the hiring official called Schroer and rescinded the job offer saying Schroer was “not a good fit.” Schroer sued (See Transexual Job Applicant Gets Green Light for Discrimination Suit ).

The opinion in Schroer v. Billington is here .