Make your own free website on Tripod.com

New York Association for Gender Rights Advocacy
24 W. 25th St., 9th floor New York, NY 10010 Tel: 212-675-3288, x266 Fax: 212-675-3466  

 New York Case Law:

Maffei v. Kolaeton Industry, Inc (1994)

 

Daniel M. Maffei, Plaintiff, 

v. 

Kolaeton Industry, Inc., et al., Defendants. 

Index Number 124783/94 

164 Misc. 2d 547; 626 N.Y.S.2d 391; 1995 N.Y. Misc. LEXIS 115; 68 Fair

Empl. Prac. Cas. (BNA) 1039 

Decided March 14, 1995. 

Headnotes 

Civil Rights - Discrimination in Employment - Sexual Orientation -

Protection of Transsexual against Hostile Work Environment Plaintiff

transsexual cannot maintain a sex discrimination action against his

employer on the grounds that he was discriminated against in the workplace

due to sexual orientation pursuant to Administrative Code of the City of

New York 8-107 (1). Administrative Code 8-102 (2) defines "sexual

orientation" to mean "heterosexuality", "homosexuality" or "bisexuality".

The term deals with sexual preferences and practices, not transsexualism,

and there is no claim that the harassment alleged herein is the result of

any sexual preferences expressed by plaintiff. 

Civil Rights - Discrimination in Employment - Gender - Protection of

Transsexual against Hostile Work Environment Plaintiff transsexual may

maintain an action against his employer on the grounds that he was

discriminated against in the workplace on the basis of gender since he is a

member of a class to be protected against discrimination in employment

pursuant to Administrative Code of the City of New York 8-107 (1). The

antidiscrimination statutes are remedial in nature and, thus, interpreted

liberally. The Administrative Code bars all forms of discrimination in the

workplace. The creation of a hostile work environment as a result of

derogatory comments relating to the fact that, as a result of an operation

an employee changed his or her sexual status, creates discrimination based

on "sex", and violates the Administrative Code's prohibition against

discrimination based on gender, just as would comments based on the

secondary sexual characteristics of a person. In addition, although a

person may have both male and female characteristics, society only

recognizes two sexes. Here, plaintiff alleges that he is now a male. As a

transsexual male, he may be considered part of a subgroup of men. There is

no reason to permit discrimination against that subgroup under the broad

antidiscrimination law. 

Menaker & Herrman, New York City, for defendants. 

Robert L. Ferris, New York City, for plaintiff. 

Decision 

Edward H. Lehner, J. 

The issue presented by this motion by defendants to dismiss the complaint

pursuant to CPLR 3211 (a) (7) is whether the law provides any protection to

a transsexual against employer harassment. 

The complaint, as supplemented by plaintiff's affidavit, alleges that on

January 10, 1965 plaintiff was born a female, Diane Maffei. In 1986

plaintiff commenced employment at Kolaeton Industry, Inc. (Kolaeton) and,

apart from a temporary layoff in 1989, has remained in the employ of said

defendant. 

In January 1994 plaintiff underwent sex reassignment surgery to change his

sex from female to male. The record is unclear as to what physical changes

have taken place, and to what extent the plaintiff has completed his

metamorphosis from a female to a male, but plaintiff today holds himself

out to be Daniel Maffei. 

Plaintiff alleges that prior to his transformation, he was considered an

exemplary employee, who executed his duties in a stellar fashion, was

frequently praised about his work performance, and received salary

increases and bonuses on a consistent basis. However, after his operation

plaintiff asserts that defendant Wong, the president of Kolaeton, began to

degrade and humiliate him at the office, has called him names, stripped him

of his duties, ostracized him from the rest of the employees and in the

presence of the office manager stated that plaintiff was "immoral and what

[he] did was amoral". Plaintiff claims that this harassment has resulted in

a hostile work environment and he is entitled to damages. 

In addition to denying the aforesaid factual assertions, defendants contend

that even if true they fail to state a cause of action because neither the

Federal, New York State nor New York City law against employment

discrimination or harassment recognizes transsexuals as a protected class. 

In considering this motion, which has not been converted to one for summary

judgment, the complaint combined with plaintiff's supplemental affidavit

"must be given their most favorable intendment" (Arrington v New York Times

Co., 55 NY2d 433, 442 [1982]). 

The Federal law against discrimination in the workplace was enacted as part

of title VII of the 1964 Civil Rights Act and provides as follows (42 USC

2000e-2 [a]): 

"It shall be an unlawful employment practice for an employer-- 

"(1) 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". 

The New York State law, which added a prohibition against discrimination

based on sex in 1965, provides (Executive Law 296): 

"1. It shall be an unlawful discriminatory practice: 

"(a) For an employer or licensing agency, because of the age, race, creed,

color, national origin, sex, or disability, or marital status of any

individual, to refuse to hire or employ or to bar or to discharge from

employment such individual or to discriminate against such individual in

compensation or in terms, conditions or privileges of employment." 

The New York City law, which is similar to the State law with one important

difference--it prohibits discrimination based on sexual orientation, reads

(Administrative Code of City of NY 8-107 [1]): 

"It shall be an unlawful discriminatory practice: 

"(a) For an employer or an employee or agent thereof, because of the actual

or perceived age, race, creed, color, national origin, gender, disability,

marital status, sexual orientation or alienage or citizenship status of any

person, to refuse to hire or employ or to bar or to discharge from

employment such person or to discriminate against such person in

compensation or in terms, conditions or privileges of employment." 

In Meritor Sav. Bank v Vinson (477 US 57 [1986]), it was held that "a

plaintiff may establish a violation of Title VII by proving that

discrimination based on sex has created a hostile or abusive work

environment" (supra, at 66), but in order for "sexual harassment to be

actionable, it must be sufficiently severe or pervasive 'to alter the

conditions of [the victim's] employment and create an abusive working

environment' " (supra, at 67). 

In Harris v Forklift Sys. (510 US , 114 S Ct 367 [1993]), the Supreme Court

amplified the rules on this issue, stating: 

"Conduct that is not severe or pervasive enough to create an objectively

hostile or abusive work environment--an environment that a reasonable

person would find hostile or abusive--is beyond Title VII's [**393]

purview. Likewise, if the victim does not subjectively perceive the

environment to be abusive, the conduct has not actually altered the

conditions of the victim's employment, and there is no Title VII violation. 

"But Title VII comes into play before the harassing conduct leads to a

nervous breakdown. A discriminatorily abusive work environment, even one

that does not seriously affect employees' psychological well-being, can and

often will detract from employees' job performance, discourage employees

from remaining on the job, or keep them from advancing in their careers.

Moreover, even without regard to these tangible effects, the very fact that

the discriminatory conduct was so severe or pervasive that it created a

work environment abusive to employees because of their race, gender,

religion, or national origin offends Title VII's broad rule of workplace

equality."510 US, at - , 114 S Ct, at 370-371, supra.) 

Sexual harassment in the workplace has also been found to be a violation of

the New York City law (Rudow v New York City Commn. on Human Rights, 123

Misc 2d 709 [Sup Ct, NY County 1984], affd 109 AD2d 1111 [1st Dept 1985]),

as well as State law ( Matter of Salvatore v New York State Div. of Human

Rights, 118 AD2d 715 [2d Dept 1986]). 

The crucial issue presented herein is whether harassment against a

transsexual is included within the purview of the aforequoted statutes. In

setting forth his position, plaintiff does not argue that the Federal law

is applicable, but rather appears to principally rely upon the provision of

the City law prohibiting discrimination based on sexual orientation. 

I find that this City provision, however, does not aid plaintiff.

Subdivision (20) of section 8-102 of the Administrative Code defines

"sexual orientation" to mean "heterosexuality, homosexuality or

bisexuality". The term is thus dealing with sexual preferences and

practices, i.e., the sex of a person's sexual partner, with heterosexuals

being persons sexually attracted to members of the opposite sex,

homosexuals being those attracted to members of the same sex, and bisexuals

attracted to both sexes. There is no claim that the harassment alleged

herein is the result of any sexual preferences expressed by plaintiff. 

In Underwood v Archer Mgt. Servs. (857 F Supp 96 [D DC 1994]), the only

case located in which a transsexual sought to claim coverage based on a

statute prohibiting discrimination based on sexual orientation, the

complaint (seeking relief based on a statute of the District of Columbia)

was dismissed because it was devoid of any claim of discriminatory conduct

based on the plaintiff's real or perceived preference or practice of

sexuality. The court held that a "conclusory statement that [plaintiff] was

discharged on the basis of transsexuality--the medical transformation from

being a man to a woman--does not constitute a claim for relief on the basis

of being discharged for 'sexual orientation.' " (Supra, at 98.) 

In considering the issue of whether transsexuals are a protected class

under the prohibition against discrimination based on sex, it should first

be understood what is meant by transsexualism. Medically, the term is

generally considered to be a condition where physiologically normal

individuals experience discontent being of the sex to which they were born

and have a compelling desire to live as persons of the opposite sex. The

discomfort is usually accompanied by a desire to utilize hormonal, surgical

and civil procedures to live the sex role opposite to which they were born.

They are thus persons whose anatomic sex at birth differs from their

psychological sexual identity. A transsexual is not homosexual in the true

sense as the latter seek sexual gratification from members of their own sex

as members of that sex, whereas transsexuals' erotic attractions are

generally with persons of their own anatomic sex, but viewing themselves as

members of the opposite desired sex. Not to be confused with transsexuals

are transvestites, who are persons content with their own sex and are

heterosexual, but who dress as members of the opposite sex for sexual

arousal (see, Note, Spelling "Relief" for Transsexuals: Employment

Discrimination and the Criteria of Sex, 4 Yale L & Poly [**394] Rev 125

[1985]; Comment, The Law and Transsexualism: A Faltering Response to a

Conceptual Dilemma, 7 Conn L Rev 288 [1975]; Note, Transsexuals in Limbo:

The Search for a Legal Definition of Sex, 31 Md L Rev 236 [1971]). 

Relevant to the issue at hand is the means by which a person's sex is

identified. Of course, at birth sex is identified by external genitalia.

However, experts now generally agree that there are at least seven

variables that interact to determine the ultimate sex of an individual, to

wit: (1) Chromosomes (XX female, XY male); (2) Gonads (ovaries or testes);

(3) Hormonal secretions (androgens for males or estrogens for females); (4)

Internal reproductive organs (uterus or prostate); (5) External genitalia;

(6) Secondary sexual characteristics; and (7) Self-identity. (See, Note, 80

Nw U L Rev 1037 [quoting from Benjamin, The Transsexual Phenomenon, at 14

(1966) ("[E]very Adam contains elements of Eve and every Eve harbors traces

of Adam, physically, as well as psychologically.")]; Bowman and Engle, Sex

Offenses: The Medical and Legal Implications of Sex Variations, 25 Law and

Contemp Probs 292; Comment, The Law and Transsexualism: A Faltering

Response to a Conceptual Dilemma, 7 Conn L Rev 288 [1975]; Comment,

Transsexualism, Sex Reassignment Surgery and the Law, 56 Cornell L Rev 963

[1971].) 

The Federal courts that have considered the issue at hand have unanimously

held that the title VII prohibitions do not apply to transsexuals. 

In the leading case of Ulane v Eastern Airlines (742 F2d 1081 [7th Cir

1984], cert denied 471 US 1017), a commercial airline pilot, after taking

female hormones for several years as a treatment for transsexual feelings,

underwent sex reassignment surgery. Thereafter, Illinois issued a revised

birth certificate indicating plaintiff was a female and the Federal

Aviation Authority certified plaintiff's flight status as a female.

However, the surgery did not result in plaintiff having a uterus and

ovaries and her male chromosomes were unaffected. Upon being discharged by

the airline, plaintiff sued claiming title VII discrimination. The District

Court, finding that plaintiff was dismissed because she was a transsexual,

ruled that as such plaintiff had a sexual "identity" problem and that "sex

is not a cut-and-dried matter of chromosomes, and that ... the term, 'sex',

as used in any scientific sense and as used in the statute can be and

should be reasonably interpreted to include among its denotations the

question of sexual identity and that, therefore, transsexuals are protected

by Title VII." ( Ulane v Eastern Airlines, 581 F Supp 821 [ND Ill 1984].) 

On appeal, the decision in Ulane (supra) was reversed. The Seventh Circuit,

while acknowledging that title VII is a remedial statute and thus to be

liberally construed, determined that it was "constrained" to rule that the

term "sex" in the statute had to be given its "plain meaning [which]

implies that it is unlawful to discriminate against women because they are

women and against men because they are men" (742 F2d, at 1085, supra).

Thus, it was concluded that while a transsexual claiming discrimination

because of his or her current status as a male or female could state a

valid cause of action under title VII, the discrimination here was because

plaintiff was a transsexual, "a biological male who takes female hormones,

cross-dresses, and has surgically altered parts of her body to make it

appear to be female" (supra, at 1087), and the statute does not protect

persons based on their sexual identity. In so ruling, the court observed

that there was little legislative history to the amendment adding the word

"sex" to the statute in that it was added as a floor amendment one day

before House approval of the legislation as a "gambit" of a southern

congressman seeking to scuttle the 1964 Civil Rights Act, which was

originally designed only to prohibit discrimination based on race (supra,

at 1085). 

The ruling in Ulane (supra) is consistent with the decisions of all Federal

courts that have considered the issue, to wit: Dobre v National R. R.

Passenger Corp. (850 F Supp 284 [ED Pa 1993]); Sommers v Budget Mktg. (667

F2d 748 [8th Cir 1982]); Powell v Read's, Inc. (436 F Supp 369 [D Md

1977]); Grossman v Bernards Twp. Bd. of Educ. (11 FEP Cases 1196 [D NJ

1975], affd 538 F2d 319 [3d Cir 1976]); Holloway v Andersen & Co. (566 F2d

659 [9th Cir 1977]); Voyles v Davies Med. Ctr. (403 F Supp 456 [ND Cal

[1975], affd 570 F2d 354 [9th Cir 1978]). 

I find that the rulings in the aforesaid Federal cases are unduly

restrictive and should not be followed in interpreting our New York City

statute. 

The only New York case on this issue is Richards v United States Tennis

Assn. (93 Misc 2d 713 [Sup Ct, NY County 1977]). There Dr. Renee Richards,

nee Richard Raskin, who had reassignment surgery, claimed that defendants

had violated her rights under section 296 of the Executive Law in that they

refused to permit her to participate in the United States Open Tennis

Tournament in the women's division. As a prerequisite to such

participation, defendants had insisted that plaintiff take a test known as

the Barr body test, which determines sex through an examination of

chromosomes. Without extensive discussion, the court found this requirement

to be discriminatory and in violation of section 296 in light of the

"overwhelming medical evidence" that demonstrated that plaintiff was a

female. 

Although all of the aforesaid antidiscriminatory statutes were originally

designed to insure equality for minorities and women, they have been

interpreted to also provide protection against discrimination against

caucasians and males (e.g., McDonald v Sante Fe Trail Transp. Co., 427 US

273 [1976]; CUNY-Hostos Community Coll. v State Human Rights Appeal Bd., 59

NY2d 69, 74 [1983] [purpose of statute "is to avoid discriminatory

preference for any group, minority or majority"]; Harding v Gray, 9 F3d 150

[DC Cir 1993]). 

Regarding decisions of Federal courts interpreting the anti-discrimination

provisions of title VII, our Court of Appeals has noted that even though

the State statute is similar, New York courts are not bound by

interpretations of the Federal law (even by the United States Supreme

Court), although the determinations are "instructive", and that the purpose

of the enactment of our State statute "was by blanket description to

eliminate all forms of discrimination, those then existing as well as any

later devised." (Brooklyn Union Gas Co. v New York State Human Rights

Appeal Bd., 41 NY2d 84, 86, 89 [1976]; see also, Nicolo v Citibank, 147

Misc 2d 111, 114 [Sup Ct, Monroe County 1990] ["there is nothing precluding

a court of this State from making a more expansive interpretation" of our

State law than that given title VII].) 

In examining the City statute, it is noted that as originally enacted by

Local Laws, 1965, No. 97 of the City of New York it referred to

discrimination based on "sex". However, subsequently the term "gender" was

substituted for the word "sex". While the reason for this change is not

apparent, one court (Dobre v National R. R. Passenger Corp., supra), which

determined that transsexuals are not covered by the word "sex" in title

VII, observed that the result would be different if instead the term

"gender" had been used, stating: "The term 'sex' in Title VII refers to an

individual's distinguishing biological or anatomical characteristics,

whereas the term 'gender' refers to an individual's sexual identity.

Holloway, 566 F.2d at 662-63." (850 F Supp, at 286, supra.) 

In most of the Federal cases, the courts in denying protection to

transsexuals have partially relied on the fact that many bills had been

offered subsequent to 1965 to add the term "sexual orientation" to title

VII, but none had been passed (e.g., Ulane v Eastern Airlines, 742 F2d, at

1086, supra ["their rejection strongly indicates that the phrase in the

Civil Rights Act prohibiting discrimination on the basis of sex should be

given a narrow, traditional interpretation, which would also exclude

transsexuals"]; Holloway v Andersen & Co., 566 F2d, at 662, supra [failure

to add sexual orientation shows "that Congress had only the traditional

notions of 'sex' in mind"]; Sommers v Budget Mktg., 667 F2d, at 750, supra

["the fact that the proposals were defeated indicates that the word 'sex'

in Title VII is to be given its traditional definition, rather than an

expansive interpretation"]; Powell v Read's, Inc., supra; Voyles v Davis

Med. Ctr., supra). 

However, I find this argument unpersuasive. As indicated above, there is a

clear distinction between homosexuals and transsexuals. Because Congress

may have chosen not to include the term "sexual orientation" in title VII

does not mean that it has considered and declined coverage to transsexuals.

* 

However, if it is logical to assume that the failure of Congress to adopt

legislation to include the term "sexual orientation" in title VII is proof

of lack of intent to include transsexuals, it would seem that courts that

adopted this position would have to agree as a corollary that the inclusion

of such term in a statute would evidence an intent to include transsexuals.

Thus, it could be argued that the 1991 amendment to the New York City

statute adding "sexual orientation" to section 8-107 as a prohibited ground

on which to discriminate would mean that transsexuals are now covered. But,

since I disagree with basic contentions that the failure of Congress to

include the term "sexual orientation" in title VII demonstrates an intent

to exclude transsexuals, I do not rely on the aforesaid corollary to

support my conclusion that transsexuals are protected against

discrimination under the provisions of the Administrative Code. (Cf.,

Underwood v Archer Mgt. Servs., supra.) 

As all courts agree, the antidiscrimination statutes are remedial and thus

to be interpreted liberally to achieve their intended purposes. Our New

York City law is intended to bar all forms of discrimination in the

workplace and to be broadly applied. Accordingly, I find that the creation

of a hostile work environment as a result of derogatory comments relating

to the fact that as a result of an operation an employee changed his or her

sexual status creates discrimination based on "sex", just as would comments

based on the secondary sexual characteristics of a person. For example, an

employer who continually made derogatory comments regarding an employee's

breasts could clearly be found to be in violation of the law's provisions

against sexual harassment (e.g., Zveiter v Brazilian Natl. Superintendency

of Merchant Mar., 833 F Supp 1089 [SD NY 1993]). Thus, an employer who

harasses an employee because the person, as a result of surgery and hormone

treatments, is now of a different sex has violated our City prohibition

against discrimination based on sex. In other words, an employee who has

fulfilled a sexual identity urge by changing sex and is harassed because of

such fulfillment is entitled to the law's protection against employer

harassment. 

Although, as indicated above, a person may have both male and female

characteristics, society only recognizes two sexes. In the complaint

plaintiff alleges that he is now a male based on his identity and outward

anatomy. Being a transsexual male he may be considered part of a subgroup

of men. There is no reason to permit discrimination against that subgroup

under the broad antidiscrimination law of our City. 

Accordingly, defendant's motion to dismiss the complaint is denied.

return to NYAGRA home page