Dell found Liable for Transgender Discrimination

New York, NYAn arbitrator found that Dell Technologies discriminated against 61-year-old Cicilia Gilbert, a transgender employee by firing her during her gender transition, said Gilbert’s labor law attorney. According to Cicilia Gilbert’s lawsuit, the tech giant terminated her in the middle of her transition and a co-worker advised her not to come out of the closet. 

In 2019 Dell said Gilbert should have to press her claims of anti-trans bias and harassment through arbitration rather than in court. But that didn’t go well for Dell.

The tech giant was found liable for intentional discrimination based on gender identity discrimination and disability discrimination under federal and state law, despite its apparent LGBTQ support – stating on its website that “We’ve built an inclusive and respectful culture that lets every team member bring their authentic selves to work every day” and providing their “transgender team members with a gender transition toolkit to better understand their needs and have established a transgender taskforce of team members who have transitioned themselves to help others along their journey.”

And even though Dell is one of the Best Places to Work for LGBTQ+ Equality 2022, according to the Human Rights Campaign, it terminated Gilbert despite her 35 years of experience at top companies in the field, her doctorate and history of rapid promotion and excellent reviews at Virtustream during the previous five years. Her lawsuit contends that she faced “severe and pervasive” discrimination and harassment, culminating in her firing after disclosing that she would be undergoing a gender transition.

Dell’s paper policies that support LGBTQ members may not travel to the field. Gilbert told NPR that in late 2018, Dell said she was laid off because her transgender transition impeded her ability to travel. When she decided to transition from male to female, a trans co-worker advised her: "Don't tell these people that you're transgender. It's a career ender."

Forbes reported that Michael Burkhardt, Dell’s attorney, claimed travel to clients was essential to Gilbert’s job in tech sales. During her gender transition—which would be about a year--Dell had granted her an accommodation for her inability to travel because of surgeries and concerns about potential blood clots on long plane trips. According to Gilbert’s lawsuit, however, in late 2018, eight months after granting her an accommodation, Dell included Gilbert in a layoff, claiming travel as the primary reason.

Burkhardt said that Gilbert had to prove she was qualified to perform her job – he argued that she was not qualified because travel was an essential function of her job. But the arbitrator found that travel was not essential to her job. Gilbert had also worked as a systems engineer in Dell’s New York office.

Jillian Weiss, Gilbert’s attorney, told Forbes that “Cicilia Gilbert was laid off because of who she is, a proud transgender woman. It ended her career.” Weiss added that Dell forced Ms. Gilbert to litigate for four years to show that discrimination occurred. “Even now, Dell asserts that it did nothing wrong, and cites technicalities in its defense…My message to big companies with great policies on paper is that we will not let you treat us this way. People are more important than paper.

Gilbert wants her job back and the next big question is whether Dell has to reinstate Gilbert. The case is Gilbert v. Dell Technologies, Inc., 19-cv-1938 (Koeltl)