Dell found guilty of discriminating against trans employee

An arbitrator has ruled that tech giant Dell discriminated against a transgender employee by firing her during her gender transition, according to her lawyer.

Dell was found guilty of intentional discrimination based on discrimination based on gender identity under federal and state laws, as well as discrimination based on disability under federal and state laws, said Jillian Weiss, the lawyer for Cicilia Gilbert, 61.

“Cicilia Gilbert was fired because of who she is, a proud transgender woman. It ended her career,” Weiss told me.

At a pre-trial conference on Wednesday in New York, U.S. District Judge John Koeltl asked Weiss and the legal team representing Dell to submit briefs to settle the following question: Should Dell reinstate Gilbert, provide more training for its employees and modifying policies to better combat discrimination of this type.

Dell’s track record

The decision is a resounding defeat for the tech leader, which has long supported its employees and LGBTQ causes.

“This is another example of a company with great policies on paper and a score of 100% on the Human Rights Campaign’s Corporate Equality Index, letting their transgender employees down when they need it the most,” Weiss said.

HRC also named Dell one of its “2022 Best Workplaces for LGBTQ+ Equality.”

A Dell spokesperson responded to my request for comment with this statement: “We do not comment on ongoing litigation. We believe in fair treatment in the workplace, regardless of race, gender identity or religion. It is a commitment that we reflect in our diversity, equity and anti-discrimination policies, as well as in the public policies that we support. We have a long history of welcoming and supporting trans and transitioning team members and the broader trans community, inside and outside of our workplace.

“It’s a career ending.”

In a 2019 interview with NPR, Gilbert said a trans colleague warned her about coming out to Dell: “Don’t tell these people you’re transgender. It’s career ending. “

At Wednesday’s conference call, Dell’s attorney said traveling to customers was essential to Gilbert’s work in technology sales. Gilbert also worked as a systems engineer in Dell’s New York office. She and her wife, Alexandra, live in upstate New York.

According to Weiss, Dell had granted her an accommodation for her inability to travel during her gender transition, a period of about a year. This was due to surgeries and concerns about potential blood clots during long air travel.

Weiss said that in 2018, eight months after giving her housing, Dell included Gilbert in a layoff, saying travel was the main reason.

“They said, ‘We’re firing you because your transgender transition is preventing you from traveling,'” Cicilia Gilbert said. NPR in 2019.

Dell’s attorney, Michael Burkhardt, a partner at law firm Morgan Lewis, argued Wednesday that Gilbert had to prove she was qualified to perform her job. He argued that despite her 35 years of experience in top companies in the field and her satisfactory performance in the previous five years, she was unqualified because travel was an essential function of her job. However, the arbitrator disagreed with Dell and found the travel was not essential to his job.

“People are more important than paper”

“Dell forced Ms. Gilbert to litigate for four years to show discrimination,” Weiss said. “Even now, Dell claims it did nothing wrong and cites technical details in its defense. This highlights the problem of companies having good policies on paper: they look good for the C-Suite, but they don’t carry over to the shop floor. My message to big companies with good policies on paper is that we won’t let you treat us that way. People are more important than paper.

“It’s an ongoing problem,” Weiss said. “Dell has been implicated in other incidents of discrimination involving transgender employees in recent years. The Massachusetts Attorney General ordered Dell to pay a $110,000 fine for a 2017 incident of discrimination.”

According to NPR, Dell has settled a discrimination complaint filed by another trans employee, Helen Harris.

Two more states enact ‘trans bans’

It all comes as 14 states have now enacted anti-transgender legislation, with Oklahoma and Arizona joining other Republican-led states on Wednesday. Earlier this month, Governor Greg Abbott of Texas, where Dell is headquartered, issued an order that equates gender-affirming healthcare with child abuse. Dell, however, chose not to sign a letter signed by 60 major companies, calling for the order to be cancelled.

“When it comes to supporting transgender people, Dell misses the mark,” Weiss said.

There was another revelation during Wednesday’s conference with Judge Koeltl: Dell attorney Michael Burkhardt said employees in its Virtustream division are being fired immediately. Virtustream writes and distributes software that enables service providers to build enterprise-class cloud infrastructure and enables enterprises to configure their own private cloud infrastructure as a service offering. The other major players in this field are Amazon Web Services, Microsoft Azure and IBM Cloud.

Dell did not comment on this news and Burkhardt did not respond to my request for comment at the time of publication.

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