Dell “caught red-handed” discriminating against a trans employee, lawyer says

 

A New York judge has decided that a transgender woman can continue her workplace discrimination action against Dell, a computer company that was declared one of the “Best Places to Work for LGBTQ Inclusion” by the Human Rights Campaign in 2022.

Cicilia Gilbert, a former systems engineer with Dell, was laid off from the company in September 2018 after she requested no air travel or face-to-face meetings with clients while she underwent transition-related medical care.

Her supervisor, Kevin Dattolico, Dell’s then-global head of the pre-sales organization, said that he selected Gilbert for one of nearly 200 layoffs in his workgroup because of declining sales in her region, her low-employee performance reviews and her unwillingness to travel.

But in a court order filed on March 14, independent arbitrator Stephen Sonnenberg found that the company’s financial data, the lack of poor performance reviews in Gilbert’s file and the accommodations required for transgender people under the law all contradicted Dattolico’s claims and supported Gilbert’s claims of wrongful termination.

In the summer of 2017, Gilbert had conversations with Dattolico about her plan to undergo transition-related medical procedures, including lower  surgery, chest surgery, face surgery, hair surgery, electrolysis, laser treatment, and hormone replacement therapy. Some of her treatments had been delayed due to changes in the company’s healthcare plan.

During these conversations, Gilbert also mentioned her worries of traveling while transitioning. Air travel can cause a potentially lethal deep vein thrombosis for people taking estrogen during trans-related medical care. Gilbert also worried about transphobic harassment while working or traveling. Instead, she preferred to continue these activities after her procedures were complete.

“I went to have lunch and [I was] taunted and had to leave a pizza place because the family in the next booth was so rude and abusive,” Gilbert wrote in an August 2017 email to Erin Donohue, her “transgender champion” in Dell’s Human Resources department (a position meant to support trans employees’ transitions).

“I worry the client could have the same reaction to my presence; or for that matter TSA, Delta, and the public at the airports and on the plane. Or my peers for that matter,” Gilbert’s email continued.

During 2018, Gilbert declined to go to a kick-off meeting in Florida and an annual internal training conference with all pre-sales engineers in Maryland. Both states fell outside of the northeastern area that Gilbert’s role was expected to service.

One of the requirements listed under Gilbert’s job description was a “willingness to travel up to 50 percent.” Dattolico also said that traveling was mandatory “across the board” for his workgroup’s employees because of low client satisfaction.

In July 2018, Dell informed Dattolico that he would have to terminate some employees because his workgroup had missed its growth targets for the past eight quarters and was thus experiencing “financial constraints.” Gilbert was laid off near the end of September 2018.

Dattolico said that Gilbert was eliminated “because she could not perform essential functions of her job,” namely “job duty travel and customer interface.” He also said the timeline for her to complete her transition was “in flux and uncertain,” though emails between Gilbert and Donohue showed that she had planned complete her medical procedures by December 2018.

An arbitrator who listened to Glibert’s case determined that travel wasn’t an “essential” part of her job, especially since she had never met a client in-person, even after Dattolico became the head of her division in 2017.

Gilbert had also offered to travel by ground transport and to meet virtually and off-camera with clients. These accommodations would’ve allowed her to continue the job under the rights afforded to trans people under the Americans with Disabilities Act, Title VII, and the New York State Human Rights Law.

On March 30, Judge John G. Koeltl of the Southern District of New York ruled that Gilbert may have a federal judge consider her motion for injunctive and declaratory relief against Dell.

Gilbert is seeking reinstatement at her old job, training and policy changes that would prevent Dell from discriminating against trans people undergoing medical care. She is also seeking financial compensation for damages, lost wages, legal fees, and distress caused by her termination, Gilbert’s lawyer Jillian Weiss told LGBTQ Nation.

Weiss said the role of transphobia, in this case, is “a little bit of a misnomer because it sounds like someone who just hates trans people.”

“Most of these cases don’t involve anybody who hates transgender people,” Weiss sad. “It mostly involves people who don’t understand transgender people or what they’re going through…. But [Dattolico] was aware of the fact that he had intentionally put [Gilbert] into a layoff because of the accommodation that he gave her for her gender transition.”

Weiss also said the case should matter to more than just transgender people because the company tried to claim that its decision was due to business reasons rather than Gilbert’s trans identity. Companies use similar excuses when discriminating against other employees because of their race, religion, sex, disability, or other factors.

Before being terminated, Gilbert had 35 years of experience at top companies in her field and satisfactory performance reviews during her previous five years at work. Gilbert also has a doctorate in engineering.

Because of the layoff, Gilbert’s family has experience financial hardship and could lose their farmhouse home in New York. Gilbert has also been unable to financially support other family members who may have medical issues, Weiss said.

Even though Dell is known as a progressive and supportive workplace for LGBTQ employees — with trans-related healthcare coverage, inclusive policies and LGBTQ employee resource groups (ERGs)— the company may be fighting this case to try and maintain that image, Weiss said.

“There’s an emotional investment by both sides in what they see as the reality, and nobody wants to be labeled a discriminator,” Weiss said, including the people involved in Gilbert’s lay-off. “They don’t want to acknowledge that they did anything wrong…  They don’t want to have to think to themselves [as discriminatory] when they’re home, in the mirror or trying to go to sleep.”

“Dell was caught red-handed,” Weiss continued. “The arbitrator specifically said that their witness was unbelievable and pointed out the many contradictions in his testimony.”

In trying to cover up the discriminatory dismissal, Weiss said the company has made things 10 times worse than they would be if they’d simply acknowledged and fixed their mistake.

Dell also has a recent history of trans-related lawsuits.

In 2017, the Massachusetts Attorney General investigated a transgender discrimination suit that Dell ended up settling for $110,000. In that suit, Dell donated $25,000 each to two LGBTQ nonprofits and agreed to let the state review all of the company’s diversity policies.

A gender-nonconforming employee named Helen Harris also recently filed a complaint with New York City’s Commission on Human Rights, alleging that Dell refused to place her in front of customers because of her physical appearance.

Dell has responded to NPR’s past coverage of its trans-related lawsuits by claiming that the national news outlet hadn’t included interviews with employees in the company’s Pride ERG group who had positive experiences transitioning within the company.

Transgender cases of workplace discrimination have been aided somewhat by the Supreme Court’s June 2020 ruling that people cannot be fired for their LGBTQ identity. Despite this ruling, however, the world is becoming more authoritarian in its transphobic attacks. She said queer workers and advocates must remain vigilant about ensuring their rights.

“It has always been a good bet for demagogues to point at the weak and powerless and cry out, ‘Here is the cause of our problems!’” Weiss said. “They talk of ‘gender ideology’ and ‘wokeness’ and ‘protecting women,’ but it is a pretext for taking power.”

“We have already seen rollbacks of rights, and I believe this will accelerate greatly in the coming years,” she added. “We will fight it, of course, but many who now profess to be allies are wavering, and they will pretend not to know us when the time comes.”

“So now is the time to stand up and be counted for your trans family. Tomorrow may be too late.”