May 5, 2006

Does calling someone a
'he-she' signal job bias?

by Eric Resnick

Cincinnati--Is it a slur to call someone a �he-she�?

The answer is central to a transsexual job discrimination case heard April 20 by the Sixth Circuit Court of Appeals.

Susan Myers of Chillicothe is suing Cuyahoga County for firing her in 1998, allegedly because she didn�t fit her new bosses� expectations of what a woman looks and acts like.

Myers was the first transgender person to be covered under Title VII of the 1964 Civil Rights Act when she sued a later temporary employer that discriminated against her, calling her �Mrs. Doubtfire� in front of other employees. That suit was settled in 2003.

Myers took the temp job after she was fired by the Cuyahoga County Department of Health and Human Services, which gave rise to the present case.

She had worked for the county for nearly 17 years without disciplinary action when co-worker Elsie Caraballo was promoted to supervisor over her.

Myers says that Caraballo and Caraballo�s supervisor Luis Vazquez began taking unjustified disciplinary action against her so they could get her fired.

Evidence of that comes from Father Ziemba, a priest working at the department, who testified that Caraballo and Vazquez referred to Myers as a �he-she.�

The case also involves charges that Myers was discriminated against because she does not speak Spanish.

Federal judge Patricia A. Gaughn dismissed the case last year; it was initially filed in January 2003. Gaughn did not feel that �he-she� showed enough animus toward Myers to justify the rest of the suit.

Myers� attorney, Randi Barnabee of Bedford, disagrees, arguing that the question involves consideration of facts, and should be considered by a jury, not the judge.

The case to restore the suit was heard by circuit court judges Karen N. Moore, Richard A. Griffin and Richard D. Cudahy, who was visiting from the Seventh Circuit.

Cuyahoga County is represented by assistant prosecutor James Cochran.

�The [lower] court wanted magic words,� Barnabee told the court. �If my client was black, and the word used was �nigger,� would that have been magic words? If she was Jewish and they would have used the word �kike,� would that have worked?�

� �Heshe� is a slur, a pejorative, a slam,� said Barnabee. �[Judge Gaughn] didn�t get that.�

�If that was a discriminatory comment, would that alone be enough to establish basis to allow the case to go to the jury?� asked Judge Moore.

�Yes,� replied Barnabee, adding that the criminal trial of O.J. Simpson turned on the use of racial epithets by police officer Mark Furman.

Further pushing the point that pejorative words should not be summarily dismissed, Barnabee pointed out that calling New York �Hymie Town� hurt Jesse Jackson�s credibility for many years.

Attempting to establish another part of a discrimination claim, Moore asked, �Was it the decision-maker [who used the term]?�

�And the decision-maker�s boss,� answered Barnabee.

Barnabee told the panel that most people who discriminate don�t say what they really think when people are listening.

�It�s those unguarded moments,� Barnabee said, �where it pops out, which is why this case should have gone to a jury.�

�Whether or not the remark matters should be decided by a fact finder, not a judge,� Barnabee concluded.

Cochran agreed with Barnabee that the matter began when Caraballo was promoted over Myers, but he argued that Myers became a bad employee and that the county properly followed all of its procedures in discharging her.

�As you can see by the record, [Myers] was a valued employee for 17 years. I find it hard to believe that the county waited 17 years to discriminate.

�The theory is the new manager,� interrupted Moore.

�I agree,� said Cochran, �but it appears that [Myers] was disciplined for 12 serious transactions in one year, and those considered most egregious were over complaints from private citizens.�

�The record is clear that we followed what it says in the employment manual,� Cochran said, adding that Myers was believed to have made disparaging remarks about Hispanics.

Cochran argued that Myers only began asserting her Americans with Disabilities Act right for workplace accommodations in order to be transferred away from Caraballo.

Myers also claimed discrimination on the basis of race and national origin, as she is non-Hispanic white. In order to do that, it helps her case if the county replaced her with a Hispanic.

�My recollection is that she was replaced by a Hispanic,� said Griffin.

�In no way does the record reflect any manager�s effort to move her out the door,� said Cochran.

�The main reason is the �heshe� comment,� interrupted Moore. �React to that.�

�Even if it happened,� said Cochran, �it is not sufficient to have the case go to jury.�

Cochran argued that Myers� case doesn�t pass the �McDonnell Douglas test.� Named for the 1973 U.S. Supreme Court case that defined it, the controversial test requires that a discrimination complaint must include �hard facts� showing that it occurred and that it was caused by the behavior alleged in the complaint.

Judge Griffen asked, �Getting back to the sex discrimination case, she was replaced by a Hispanic, but I�m not clear as to the gender of her replacement. That�s an element of a sex discrimination case, right?�

�We don�t ask sexual orientation,� answered Cochran.

During rebuttal, Barnabee again argued that the use of �heshe� is enough to prove discrimination.

�Of course it was discrimination,� said Barnabee. �The record bears it out. They did a good job papering my client out of a job. The trouble is, they also made their intention known.�

A decision is expected in six months to a year.

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