Equality Authority Welcomes ‘ground breaking’ decision awarding 35,000 euros to a Transsexual Worker

Equality Authority Welcomes ‘ground breaking’ decision

awarding 35,000 euros to a Transsexual Worker

Press Release – 18th April 2011

The Equality Authority today welcomed a ground breaking decision by the Equality Tribunal for a transsexual worker, represented by the Equality Authority, in a gender and disability case. Louise Hannon was awarded in excess of 35,000 euros for the discrimination endured. “Transsexual people are born into a society which is not structured to cater for their own identity. The journey undertaken by transsexual people to recognise their own identity, as being different from their assigned identity, involves a process and decision making that is both courageous and beyond the capacity of many to fully appreciate” said Chairperson Angela Kerins.

“With the diagnostic progress made in recent decades to recognise this disorder, it is fair and essential that society assists transsexual people to make this journey by removing as many obstacles for discrimination as possible. I am pleased the Employment Equality Acts have proven to be robust in the defence of transsexual rights in the workplace. The Equality Authority has already made a submission to the transgender recognition group and looks forward to further legislative progress for this important minority, still invisible in many aspects of Irish life, with the publication of their Report” concluded Ms Kerins.

The complainant was diagnosed with Gender Identity disorder and is a male to female transsexual. The complainant had been employed by the respondent as a Business Development Manager from January 2007 having previously worked with the company in a self employed capacity for approximately five years. Ms Hannon claimed that since she had informed her employer of her true identity and her need to live in this identity her work conditions were made so intolerable that she was ultimately constructively dismissed as a result of her transition from male to female.

The Equality Officer stated that transsexualism is a recognised medical condition which is treated by a combination of hormone therapy, surgery (in some cases) and “real life experience”. The Equality Officer went on to state that to gain “real life experience the person must be able to live their life continuously in the other sex without the need to revert to the birth sex”. This applied to the work place and that there is an obligation on employers to accommodate such “real life experience” she added.

The Equality Officer found that the plan formulated by the company to allow the transition from male to female was clearly a unilateral approach which had not been fully explored with the complainant. The Equality Officer was satisfied that requesting Ms Hannon to switch between a male/female identity whenever the respondent felt the need for it constituted direct discrimination on the gender and disability grounds. The Equality Officer was not satisfied that the company had a genuine business need for the complainant to work from home. She found that had Ms Hannon remained in her male identity she would not have been requested to work from home. She concluded that the request to work from home was discriminatory on both the gender and disability grounds.

The Equality Officer found that the Respondent had little if any understanding that the gender transition process was a form of treatment relevant to the complainant’s condition. She was satisfied that an employer has a duty to obtain enough knowledge about an employee’s disclosed disability to ensure that their actions do not discriminate against a person whose disability may require the person to behave or act in a certain way. While the Equality Officer found the complainant did not require reasonable accommodation per se, she did require a workplace that recognised her right to dress and be identified as a female. The Equality Officer pointed out that the difficulties concerning the complainants gender lay entirely with the respondent and that it was apparent that the company presumed that there would be negative consequences because of the complainant’s female identity.

The Equality Officer found that the complainant had suffered discriminatory treatment on the grounds of gender and disability. The Equality Officer found that Ms Hannon received no relevant support from the company and was isolated in her home from late April 2007. She found that the respondent’s approach amounted to discriminatory dismissal on the gender and disability grounds. The issue of victimisation was raised in relation to ex-gratia payments but this was not upheld. The Equality Officer awarded redress in the sum of €35, 422.71. She also ordered the company to pay the complainant interest at the courts rate on the award.

Background:

Louise Hannon v First Direct Logistics Ltd.
Decision No. DEC-E2011-066 Ground: Gender and Disability

When Ms Hannon initially revealed her true identity to the company in October 2006 she intended to resign her position to work in an open environment but was persuaded to remain on. In December 2006 the complainant sought to clarify when she could begin to change over to her female identity at work and was asked to wait a couple of months to allow a new staff member to settle in.

Ms Hannon had an appointment to change her name by deed poll on 5th March 2007 and arrived in the office the following day in her true gender using her female identity. She requested that her email be changed over to her new name. Ms Hannon was told that she must complete her sales over the phone in her male identity and that the Operations Manager would meet any clients personally should the need arise and that she may have to work using her male identity until Christmas 2007. Later that month the Operations Manager approached Ms Hannon and expressed concerns about her productivity. The complainant claims she was asked to revert to her male identity for another three month period. The Director of the company subsequently agreed that she could return to the office dressed as a woman but asked that she change into her male identity when seeing clients. Ms Hannon found this request very difficult to comply with and she dealt with clients over the phone instead although she did meet with client companies in her male identity on two occasions. The complainant also claims that she was asked not to use the female toilets.

In April 2007 the Complainant was asked if she would move to the new office where she could work in her female identity but was asked if she could work from home until such time as the office was set up. The complainant agreed as she understood this to be a brief interim period of one month.

The complainant found it very difficult to work from home as her leads dried up when she was out of the office environment. However, despite requests the complainant was not allowed to return to the office and was informed that a new person had started and there was no room for her. On 19th July 2007 the Director contacted her to inform her that he was not happy with her work and that she needed to produce new clients in the next weeks if she wanted to keep her job. Ms Hannon subsequently met with the Director and requested that she be allowed to return to the office but her request was refused on the basis that her presence caused a bad atmosphere. The complainant decided that she had no alternative but to leave her employment at the end of July 2007.

In response to Ms Hannon’s complaint First Direct Logistics Ltd claimed that they had provided the necessary supports to her to enable her pursue her gender transition.
The respondent argued that they had met with the complainant and formulated a plan to deal with the transition. The plan included:

  • At an agreed time the respondents staff would be informed of the complainants gender identity disorder
  • The complainant would continue to contact current clients as her male identity and generate new clients in her new identity.
  • The complainant would continue to fulfil her transport duties whilst she remained with her male name.
  • At an agreed time the complainant would stop wearing male clothing.

The respondent claimed that Ms Hannon’s productivity reduced dramatically in early 2007. The company submitted that despite their efforts to accommodate the complainant she was depressed and unhappy and failed to make phone calls to generate new business. The company claimed that in April 2007 it decided that no further sales work would take place in its old premises and that this function would be moved to a dedicated premises upon their completion. The respondent accepted that it had asked the complainant to work from home which she had agreed to do and it had increased her wages as a gesture of good will. The respondent accepted that the complainant was the only employee asked to work from home but that this was because she was the only employee working in this area. The respondent claimed that the complainant’s productivity continued to deteriorate and that she subsequently secured alternative employment at the end of July 2007.

The Equality Officer stated that it was well established in law that the gender ground protects transgender persons from sex discrimination and she made reference to the European Court of Justice approach in P v S and Cornwall County Council (Case C-13/9). The Equality Officer also noted that it was accepted by the parties that the complainant who had been diagnosed with gender identity disorder had a disability and that the company was on notice of this fact.

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