When Eric Becomes Erica:

Emerging Issues Related to Transgender Discrimination in the Workplace

By Eric Kendall Banks
eric.banks@kutakrock.com

Transgender employees are people whose birth sex does not match their internal perception or external expression of their gender identity. Transgender is an umbrella term which may encompass, but is not limited to, people who are transsexual. Thirteen states and approximately 90 cities and counties nationwide have outlawed discrimination against transgender employees. In 2000, approximately 20% of the American population was covered by laws prohibiting transgender discrimination. This percentage had risen to 37% in 2007, or approximately 105 million Americans. A total of 125 Fortune 500 companies have policies prohibiting transgender discrimination. On August 8, 2006, the American Bar Association House of delegates passed Resolution 122B, “which urges the protection of transgender people in employment.”[1]

This issue will affect more and more employers on many fronts. Should transgender employees be allowed to use any bathroom they choose? How do you manage the relationship of the transgender employee with other employees, customers or clients? Is the transgender employee entitled to greater legal rights if she or he has undergone a sex change operation? Are employers held to a different standard if the employee is “fully committed” to being transgender, as opposed to someone having a more blended lifestyle, assuming the traits of different genders on different days?

Legislatures and courts have taken many approaches to addressing claims of transgender discrimination. Some federal circuits that have examined the issue of whether Title VII covers transgender employees have stated that it does not. The prevailing federal approach under Title VII adheres to a traditional definition of “sex” for two reasons: the legislative history of Title VII and Congress’s failure to include sexual orientation as a protected classification. However, this may provide little protection for employers if the transgender employee argues that he or she faced discrimination not because of being transgender but because of sexual stereotyping.

The seminal case is Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), where the United States Supreme Court broadened the interpretation of “sex” to include gender stereotyping. Id. at 250-251. The plaintiff was not a transsexual, but rather an “aggressive” woman who was passed over for a promotion because she was too “macho.” Id at 234-235. The Supreme Court established that Title VII’s “because of . . . sex” language included discrimination based on biological sex and gender discrimination, that is, discrimination based on a failure to conform to stereotypical gender norms.

Last September, the District Court of the D.C. Circuit relied heavily on the Price Waterhouse reasoning when it ruled in favor of a transgender person whose offer of employment was rescinded after she revealed she would be transitioning from a male to a female. In Schroer v. Billing, 577 F. Supp. 2d 293 (D.D.C. 2008), the plaintiff involved a highly decorated retired Army Colonel who had been an Airborne Ranger qualified in the Special Forces and who possessed the top‑secret security clearance required by the Library of Congress for the position of security analyst. She received the highest scores of any of the other candidates for the position. The court found the reasons offered for rescinding the job offer were pretexual. It also said the decisions that define the word “sex” in Title VII as referring only to anatomical or chromosomal sex have been eviscerated by Price Waterhouse.

Transgender employees may seek relief under state or local laws even if they do not work in one of the jurisdictions that specifically outlaws discrimination against transgender employees by claiming they are handicapped or disabled. Whether transgenderism is a personality disorder is a controversial issue. Technically, transexualism is a psychiatric disorder known as gender identity disorder (“GID”).[2] However, there is disagreement within the mental health community regarding whether GID should be listed in the DSM as a mental disorder. Also, transgender advocates argue that it gives a misleading picture of transgender people and their lives because not all transsexual people have mental health problems.

Fortunately, employers do not need to be concerned about a transgender employee filing a claim under the Americans with Disabilities Act (“ADA”). ADA Section 12208 specifically states the ADA does not apply to transvestites. And the applicable federal regulation states in Section 1630.3 that disability does not include “transvestism, transexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.” It also says that homosexuality and bisexuality are not impairments and so are not disabilities under the ADA.

The enhanced protection available to employees under state and local laws requires employers to be particularly sensitive to the evolving issues surrounding transgenderism and to be more open‑minded regarding how they view gender restrictions. The recent changes in the law and the uncertain judicial landscape behoove employers to err on the side of caution and treat issues involving transgender employees with the same diligence as they would show employees in any protected class. Most importantly, when in doubt, employers should make no adverse employment actions involving transgender employees until they have consulted with their attorneys at Kutak Rock LLP.

[1] Amanda S. Eon, The Misconception of “Sex” in Title VII: Federal Courts Reevaluate Transsexual Employment Discrimination Claims, 43 Tulsa L. Rev. 765, 770 (2008).
[2] Diagnostic and Statistical Manual of Mental Disorders IV, American Psychiatric Association (1994). GID is also known as gender dysphoria.

Copyright 2009. Eric Kendall Banks. All Rights Reserved. No claim to original government works. eric.banks@kutakrock.com

ATTORNEY PROFILE - Ronda Williams, Esq.

By R. Johnson

Ronda F. Williams is a dynamic attorney who serves as corporate counsel for SAVVIS Communications Corporation. A native of St. Louis, Missouri, Ronda F. Williams grew up in North St. Louis County. Williams is the daughter of Roger Williams, a Union Pacific Railroad retiree and her late mother Cittie Williams. She also has a sister, Robyn Goins, who is an Instructional Coach with the St. Louis Public Schools. Williams was raised by her father and late grandmother Ida Dawkins, a domestic worker.

During her senior year at Hazelwood East, Williams went on a college tour of Hampton University. The beautiful and prestigious institution sits along the Chesapeake Bay and is renowned for educating the legendary graduate - Booker T. Washington. Williams met with professors in the business school, assessed the education she would receive and determined Hampton University would be the best school for her to receive a college education. While at Hampton, she was a recognized Dean’s Scholar and recipient of the Dean’s Graduate Achievement Award.

After graduating from college, Williams returned to St. Louis to be near her elderly 90-year-old grandmother and entered the business sector where she remained about five years before making the decision to attend law school.

Although her family was very supportive during her collegiate and graduate studies, her father had concerns about her return to school to pursue a law degree. With the help of her father, Williams was able to graduate from college debt free. Her father was only able to study one year of college before being drafted into the army to serve his country in the Vietnam War. Thus, he questioned her decision to return to school to become a lawyer. Along with his feelings that the world already had too many lawyers, he was apprehensive about her choice to become encumbered with school debt. He eventually came around.

Williams applied to two area law schools. One institution placed her on a waiting list for acceptance. However, she was granted immediate admission to Saint Louis University’s School of Law ("SLU"). Williams eventually was offered placement to both law schools. However combined with SLU’s early acceptance and offer of scholarship funds, her choice to attend SLU was made easy.

Williams soon discovered her admittance to law school would present numerous challenges, including juggling the enormous workload and meeting her existing financial obligations. Not working her first year in law school made meeting her financial responsibilities tough. Williams also struggled with the unfamiliar experience of not being at the top of her class, which affected her employment pursuits. Frequently law firms that made campus visits only interviewed students in the top 10% of the class. Williams, who was accustomed to receiving top grades, had to deal with and overcome the difficulties this presented.

During law school, Williams worked as a law clerk for Dorothy White Coleman (White Coleman & Associates, LLC), which led to her being hired as an associate. Williams also served as a Judicial Law Intern for the Honorable Kathianne Knaup Crane. Williams’ exceptional performance as Crane’s intern garnered her a stellar evaluation, which caught the attention of a court administrator. Her resume was forwarded for consideration to fill the Honorable Booker T. Shaw's clerkship position. Ironically, Williams who really enjoyed her time as an intern had also begun pursuing judicial clerkships. Unfortunately, after submitting several applications, Williams was not called for an interview. On the advice of a colleague, and the last day to submit an application, Williams applied to one last judge – Judge Shaw. The next day she received a call for an interview and the rest is history. Williams later learned she had been selected for an interview prior to her own resume submission.

Williams initially wanted a career that would allow her to utilize her business background and law degree, until her unanticipated interest in clerking evolved. However with her clerkship experience, the natural progression was for her to move toward trial work and litigation.

After clerking two years for Judge Shaw, Williams accepted a position at Fox Galvin, LLC. as an associate where she focused on trial preparation, motions and appellate work. Fox Galvin was a good fit. It was an intimate environment where she was afforded the opportunity to learn many things and grow as an advocate.

Although she enjoyed her time at Fox Galvin, Williams never lost the desire to incorporate her business acumen with her law degree. A chance meeting with Eugene Defelice, the General Counsel for SAVVIS Communication Corporation gave her the opportunity to achieve her ultimate goal. Williams and Defelice met at an employment seminar (hosted by the Mound City Bar Association); and Defelice encouraged her to apply for the corporate counsel opening at SAVVIS.

SAVVIS is an international internet technology company that deals with medium to large size companies/businesses. It has office locations in Singapore, Japan and the United Kingdom but is headquartered in Town & Country, Missouri (St. Louis County). Williams has found the corporate environment to be extremely satisfying. She is finally at a place where she is able to incorporate both her business background and legal knowledge in her profession, which includes: purchasing, contract drafting and negotiation. Another perk – no billable hours.

Williams also teaches a Legal Issues in Business Organizations, a business law course, at Saint Louis University’s School for Professional Studies. Williams began class instruction while clerking to supplement her income and discovered she really enjoyed the interaction with students. Williams teaches her first online class this semester and has found the online discussions equally rewarding. Williams generally teaches working adults and even though her class is a required course, the students are extremely motivated to do well. Williams occasionally receives student feedback and appreciates their comments especially when they convey how their studies have been applied to their daily lives.

Williams maintains a very full life. Finding balance is a test. However, she tries to include her family and friends in all of the various memberships and activities in which she is involved. Williams' memberships and activities include inter alias: Young Lawyers for Obama, Co-Chair; Regional Director, National Bar Association; Bravo Performing Arts Center, Board Member; Kids in the Middle, Inc., Board Member; Association of Corporate Counsel, Member; League of Black Women, Member; Read Across America, Volunteer; and St. Louis Aids Foundation, Volunteer.

In 2008, Williams was elected President Elect of the Mound City Bar Association ("MCBA"). She will serve as MCBA President in 2009. As President, her objectives will include bridging the gap between recent graduates and seasoned attorneys to create more opportunities for its membership.

When asked what advice she would offer other attorneys, it was simply put: never be afraid to ask questions. If you don’t feel comfortable with the folks around, there is always somebody who will be able to give you an answer. No matter the question - don’t assume you are the only one that does not know the answer. There is always someone who is willing to provide you with guidance.

Williams reflected on one memorable moment in her legal career. An early experience as a litigation attorney required Williams to travel to a small remote Missouri county to argue a complex motion. Opposing counsel was very surprised at her thorough preparation and grasp of the issues and complemented her handling of the matter after the hearing. The Judge granted her motion before she made it back to the office.

In her career, Williams occasionally has encountered situations where she has been underestimated but has come out victorious. Williams is skilled in her trade and strives for excellence so her success is no surprise. With her dedication and tenacity, Ronda Williams’ career will continue to blossom. She is definitely someone with a bright future on the horizons.

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WHAT YOU NEED TO KNOW ABOUT CRIME LABS

By R. Johnson


Crime labs have received a surge of attention as a result of the enormous popularity of television shows like CSI and Forensic Files among countless others. Even though these shows have brought attention to an aspect of criminal investigation that was previously overlooked, these same shows are the source of the public’s misperception about what a criminal laboratory actually is and how it functions.

The terms ‘crime labs’ and ‘forensics’ are often used interchangeably and are essentially the same thing, with the added component of applying the law to the science. In Missouri there are nine crime labs; two are located in the St. Louis area. In downtown St. Louis, there is a crime lab that serves the City. The other lab is in Clayton, and sustains the County and 60 other local municipalities. Lt. Stephen Hobbs, a thirty-one year veteran of the police force, is the Commander of the St. Louis City Crime Lab, and Lt. R. Kevin Lawson, a twenty-five year police veteran, is the Commander of the St. Louis County Crime Lab.

Lt. Hobbs and Lt. Lawson oversee crime lab divisions that process 10,000 or more types of evidence per year in each facility including submissions received from federal agencies (FBI, DEA, ATF). In part such high volume is due to the audience appeal of criminal investigation type shows that have highlighted the abilities of a crime lab. As a result the lab continues to receive more and more requests for analysis. Television depictions of a crime lab’s capabilities are mostly accurate. What is inaccurate is the ease with which everything is accomplished. Television shows have 50-minutes to solve a crime under the most ideal of circumstances. In actuality, the crime lab does not work quite so perfectly and every crime does not get solved. Lt. Lawson says he would like to see an episode where things don’t work just right, or where something needs to be re-checked. For example, these television programs never show the lab backed up, they never show the reports and other paper work that must be done, or budget restraints. St. Louis City and County both have excellent labs, but neither Hobbs nor Lawson has ever seen a lab as well equipped as the ones portrayed on television.

When a crime is called in, a district officer initially responds and secures the area. Crime scene investigators (CSI), from the Crime Scene Unit (County) or the Evidence Technician Unit (City), are then called to the scene. Investigators assess the scene, collect the physical evidence (blood samples, fingerprints, substances, etc.) and photograph the scene. Investigators return the seized evidence to the crime lab where it is sealed with tamper proof tape and prepared for analysis.
Inside the crime lab there are photo, chemistry, biology, firearm and tool-mark sections.

Personnel who work in the various sections are referred to as criminalists, technicians, and/or examiners. The photo section analyzes photographs; the chemistry section analyzes drugs and other substances; the biology section handles the analysis of DNA (and other bodily fluids); the firearms section deal with ballistics; and the tool-mark section analyzes imprints (i.e. tire treads and footwear).

At the City lab all evidence is tracked by the Laboratory Information Management System (LIMS), which monitors the evidence by bar codes. LIMS notes who brought the evidence in, the time and date it was brought in, and who packaged it. LIMS also tracks what examiner performed the analysis, and where it was performed. Administrators check several times daily for the results. Once the analysis is complete and the reports are written, the results are forwarded to the investigating officer and, ultimately, to the circuit attorney’s office who then determines whether to issue or refuse a warrant. If a warrant is issued the evidence becomes part of the case and the examiner who analyzed the evidence may be called to testify.

The biggest challenge investigators face in collecting crime scene evidence is contamination from other people. The first priority - if there is an injured victim - is to get the victim medical treatment. However, that maybe difficult to carry out without disturbing the scene. Others at the scene, non-injured victims, residents, etc, may contaminate the scene by touching surfaces that could be dusted for fingerprints.

Once evidence has been analyzed, it is stored. DNA evidence is frozen in temperature controlled storage units, firearms are stored in a vault and other non-perishable items are taken to property custody until the court gives authorization for it to be destroyed and the prosecutor and police investigators say it is no longer needed. In the case of bodily fluids, technicians attempt to not use the entire sample for analysis so that defense attorneys can have an independent analysis performed if they exercise their right to challenge the results. Furthermore, in light of post conviction release issues, DNA evidence is likely to be kept indefinitely.

The popularity of criminal investigation shows has also skewed the expectations of some attorneys and judges for an unrealistic quick turnaround. Such things don’t happen instantly. Processing and analyzing evidence takes a considerable amount of time. Unlike the turnaround on an hour-long television show which is instantaneous. DNA analysis is state of the art technology and even though it is an important mechanism used to identify suspects, it is very costly, utilizes the most resources, and is very time consuming. In the City, DNA processing takes about 8 weeks. In the County, with staff limitations, plus the fact that the County crime lab is also responsible for processing evidence collected from 60 other area municipalities, it can take up to a year to analyze DNA. Marijuana, followed by heroine and crack cocaine are the easiest and least costly to classify. Drugs account for 70% - 80% of all crime lab analysis. Each case that comes into the lab is treated equally unless there is an urgent situation. Priority in the lab is given in conjunction with the rest of the police department. For instance evidence of a serial criminal (i.e. rapist, murderer, burglar) is a type of case that would be prioritized.

New interest has spurred many requests from teachers and other groups for tours of the lab. Unfortunately tours of the crime lab are not permitted. The crime lab caseload is so heavy that, it is not prudent to have criminalists stop working to give tours. More importantly, according to Lt. Hobbs, is the integrity of the lab. In order to prevent contamination of evidence and keep a pristine environment, no one other than essential personnel is permitted to enter the crime lab.
Television shows have also generated much professional interest. Ten years ago most people had no idea of the employment possibilities within the crime lab. Lt. Lawson appreciates what these shows have done to create career interest among high school and college students considering their future careers. In pursuit of further education, students are now considering becoming criminalists as an option and schools have started to offer special classes in forensics to cater to this need.

Crime scene investigators are commissioned police officers that have served in the police department at least three years, while crime lab examiners and technicians are civilian scientists. To work in the crime lab a degree in one of the physical sciences – biology, chemistry, etc. is required. In St. Louis City to analyze DNA one must have a degree in molecular biology.

The crime lab in St. Louis is one of only two crime labs in the state that have received accreditation by the American Society of Crime Lab Directors (ASCLD). To become certified, crime labs must adhere to strict standards developed by ASCLD and are subject to thorough internal and external audits to ensure the quality and reliability of crime labs. To keep accreditation, crime labs are re-inspected every five years. The county crime lab is on board to become certified in 2004.

Both Lt. Hobbs and Lt. Lawson feel the job of crime lab technicians is to work for the citizens of the community. Lt. Hobbs says his scientists find it just as important to prove someone’s guilt as to prove one’s innocence. As stated by Lt. Lawson, the work done in the crime lab is for the benefit of society as a whole, the victim’s family, and the victim. Most importantly, the goal of the crime lab is to search for the truth.

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ATTORNEY PROFILE - Willie Epps

By R. Johnson

Attorney Willie Epps’ legal career causes even seasoned attorneys to take notice. Missouri Lawyers Weekly (December 2001) recognized Willie Epps as one of St. Louis’ "Up and Coming Lawyers". Epps is definitely deserving of that distinguished acknowledgement.

Born in Natchez, Mississippi, Epps spent a few years in Mobile, Alabama before his family made the permanent move to St. Louis when he was still young. Epps is the eldest child of Willie and Barbara Epps. His parents received their PhD's from Kansas State University and were educational administrators at Southern Illinois University – Edwardsville’s, East St. Louis campus. His sister, Bea Epps is an attorney in Chicago.

Initially, Epps dreamed of becoming an attorney and doctor simultaneously. As Willie matured he realized his strengths and focused his attention solely on law.

Epps graduated cum laude from Amherst College and received his Juris Doctor from Harvard University. After graduating from law school, He worked as a foreign associate for Houthoff Law Firm in Amsterdam, The Netherlands. During his stay overseas, Willie took the opportunity to travel throughout Europe. While in The Netherlands, Epps found the people to be genuinely curious about the American people. He took advantage of the chance to educate those whose only perception of Black Americans came from sensationalist American TV talk show exports (e.g. Jerry Springer). Epps was able to provide a more realistic and balanced view by sharing his experiences.

After his stay in The Netherlands, Epps began his impressive career as a Judge Advocate (JAG) in the US Air Force. JAG officers are exposed to many fields of law ranging from civil to criminal matters. After an intense nine-week training in "Judge Advocate General School" (Maxwell AFB), Epps prosecuted his first court-martial case two weeks later. During his military career, Willie was a prosecutor and later a defense attorney for military personnel.

Many people are unaware that the military’s legal system has multiple safeguards in place to ensure its soldiers receive fair trials. Unlike the civilian grand jury, the military grand jury is an open process that gives a defendant the option of testifying, and his attorney the ability to present evidence and cross-examine witnesses. After exhausting military tribunals, court-martial cases may be appealed to the United States Supreme Court. Furthermore, military personnel have the choice of seeking non-military counsel for representation. Epps spoke passionately about his military tenure as an Air Force Judge Advocate: "JAG taught me how to try cases, gather evidence, communicate to a jury, and interact and care for clients".

After a four-year tour in the Air Force, he received top security clearance to work for the Office of Special Counsel, John C. Danforth, on the Waco investigation. He was one of twelve attorneys assigned to investigate misconduct allegations regarding the FBI.

Currently, Willie works as a sole practitioner, The Epps Law Firm LLC. He specializes in medical malpractice, personal injury, estate planning, wrongful death, white-collar crime and military criminal defense. Epps admits he had not anticipated being on his own so early in his career, however he has no regrets. The benefits are immeasurable. He is his own boss, is able to set his own hours, and can be selective about the cases he handles.

Epps stands out as an attorney because his clients sense he cares, will work hard to provide fair representation and is honest enough to let them know when he can not help. He also has a wealth of resources that enable him to stay abreast of current law and be an important player in legal arenas where larger law firms have traditionally dominated.

In advising others who have contemplated a career as a sole practitioner, Epps believes it is important to believe in yourself, to understand the importance of managing money well and to enjoy your job. In the future, He would like to expand his practice to include a small group of attorneys who share his same ideals.

Epps is devoted to his law practice but does take time to spend with family, friends and various social groups. Lately Epps has been working with the MOBAR YLD Council -Vote Missouri Task Force. The Task Force visits area classrooms exalting the importance of voting and encourages students to register to vote.

Willie Epps is driven by his sense of responsibility and commitment to his community. Epps has been blessed to have great people in his life who have helped him and wants to use his talents to empower others to improve their lives. His accomplishments are credited to parents who provided positive examples and were his true role models. An encouraging "you can do anything" attitude permeated his everyday life.

The late minister Robert S. Johnson of First Missionary Baptist Church, also played a vital role in Epps’ life. Minister Johnson let Epps know his options in life were boundless as long as his faith in God remained strong. Willie grew up in an environment which valued faith, family and education, and that has been the foundation of his success.

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