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B&B Attorney Andrew McIlvaine Secures MCAD Victory in Transgender Discrimination Case

By August 26, 2016No Comments

wwa_Andy (1)On August 9, 2016, B&B attorney Andrew S. McIlvaine, on behalf of his client, Alyx Tinker, obtained a favorable determination at the Massachusetts Commission Against Discrimination (“MCAD”) after presenting evidence at three day Public Hearing.  Hearing Officer Eugenia M. Guastaferri, in a 19 page decision, found that Securitas Security Services USA, Inc. (“Securitas”) discriminated against Mr. Tinker based on his transgender status.  MCAD Docket No. 13-BEM-01906, Decision Of The Hearing Officer (August 9, 2016).  Specifically, the commission found in favor of Mr. Tinker’s claims against Securitas and his former supervisor for unlawfully discriminating against him on account of his gender, gender identity, and sexual orientation.

To briefly summarize the facts, Mr. Tinker began employment at Securitas as a female who self-identified as lesbian.  During his employment, he disclosed to his co-workers and supervisors that he was transgender and began the process of transitioning to identify as a male.  He underwent hormone therapy and surgery as part of the transition process, changed his name, and asked his supervisor to refer to him by his new name and with male terms and pronouns.

The MCAD found that Mr. Tinker’s Securitas supervisor did not respect Mr. Tinker because he was transgender and he discriminated against Mr. Tinker because of our client’s gender, sexual orientation, or gender identity.  The MCAD decision credited Mr. Tinker’s testimony that his supervisor ridiculed Mr. Tinker stating that he would “never be a real man,” that his insides would fill with scar tissue, and that the transition he was undertaking was wrong.  Securitas’ supervisor was attributed with telling Mr. Tinker that he was unclean and going to go to hell.  After hormone treatment began, the Securitas supervisor was found to have told Mr. Tinker that his brain would continue to grow because biologically men are smarter than women.  While Securitas claimed that its supervisor stopped referring to Mr. Tinker with female pronouns within months of being asked to suspend such statements, this assertion was undermined based on documentary evidence to the contrary.  In fact, an email the supervisor sent to Securitas upper management repeatedly referred to Mr. Tinker using female pronouns (at least nine times in one email).  The email was written roughly two years after Mr. Tinker had first asked to be referred to as a male.

The MCAD found that Mr. Tinker complained about the way he was being treated to a series of Securitas supervisory managers.  Nonetheless, Securitas never disciplined Mr. Tinker’s supervisor for the way he communicated to or about Mr. Tinker, including for the ongoing use of female pronouns to refer to Mr. Tinker years after Mr. Tinker’s request. Mr. Tinker suffered emotional stress and anxiousness due to his maltreatment at work, had nightmares and trouble sleeping, and came to dread the prospect of being alone with his supervisor.

MCAD Hearing Officer Eugenia Gustaferri awarded Mr. Tinker Fifty Thousand Dollars ($50,000) in emotional distress damages and invited a petition to reimburse Mr. Tinker for attorneys’ fees in accordance with applicable law.  The ruling also requires Securitas to take corrective action and conduct training of human resources personnel, managers, and supervisors on issues related to gender and transgender discrimination in the workplace.

The decision offers significant precedent relative to the rights of transgender individuals to be free of discriminatory harassment in the workplace, and the responsibility of employers to take harassment complaints about gender, sexual orientation, and gender identity seriously.

Congratulations to Mr. McIlvaine and Mr. Tinker for a hard fought victory that stands for LGTBQ equality and rights in the workplace.