SEXUAL ORIENTATION AND GENDER IDENTITY DISCRIMINATION UPDATE: State of the Law & Claim Avoidance Presented to: Texas Municipal Human Resources Association Annual Conference May 3, 2017 Sheila Gladstone [email protected] (512) 322- 5863
SEXUAL ORIENTATION AND GENDER IDENTITY DISCRIMINATION UPDATE:
State of the Law & Claim Avoidance
Presented to:
Texas Municipal Human Resources Association
Annual Conference May 3, 2017
Sheila Gladstone [email protected]
(512) 322- 5863
A FEW DEFINITIONS
Sexual Orientation – attraction to a certain gender (or both) Different from “sexual preference”
Gender Identity – Person’s own understanding of own gender
Gender Expression – how person chooses to express gender
Transgender – Both gender identity & expression different from birth gender Unrelated to sexual orientation
EEOC: No surgery required
EEOC’S STRATEGIC ENFORCEMENT PLAN 2017-21
National Substantive Area Priorities: 1. Eliminating Barriers in Recruitment
2. Protecting Vulnerable Workers
3. Emerging and Developing Issues
• Inflexible leave policies
• Accommodating pregnancy
• LGBT discrimination based on sex
• Clarifying employment relationships
• Muslim, Sikh, Arab descent backlash
4. Equal Pay
5. Access to Legal System
6. Harassment
“BASED ON SEX” AND SEXUAL ORIENTATION DISCRIMINATION
Big question now: sex discrimination or sex stereotyping
Most cases so far based on sexual stereotyping What if the gay man is not effeminate? What is the
lesbian woman is not masculine?
Many courts say no dice
EEOC has been pushing just plain gender discrimination
STEMS FROM OLD STEREOTYPING CASE
Price Waterhouse v. Hopkins (1989, SCOTUS) Ann Hopkins was a senior management consultant passed over
for partner Told to “walk more femininely, talk more femininely, dress more
femininely, wear make-up, have her hair styled, and wear jewelry”
Overly aggressive
“Needs a course in charm school”
Photo by Nina
Leen for Life
Magazine,
1956
THEN EEOC’S FIRST TRANSGENDER DISCRIMINATION RULING
EEOC: protection under Title VII
Macy v. Dep’t of Justice, (EEOC, 2012) While presenting as a man, ballistics investigator Mia Macy
sought transfer from Phoenix to San Fran lab
Assured for months the job was hers
After she said she would present as a woman, offer was withdrawn within 10 days Agency said position eliminated
Agency gave different reason to EEOC counselor
Held: discrimination based on transgender status is sex stereotyping and therefore discrimination “based on sex” in violation of Title VII.
SEXUAL ORIENTATION DISCRIMINATION – EEOC’S TAKE
Protected under Title VII as sex discrimination Baldwin v. Dep’t of Transportation, (EEOC App.
7/15/15) Air traffic controller passed over for permanent job
Supervisor made repeated comments regarding his sexual orientation Discussion of attending Mardi Gras. Supervisor said: “We
don’t need to hear about that gay stuff”
Supervisor: mention of gay partner was “a distraction in the radar room”
EEOC: “‘sexual orientation’ as a concept cannot be defined or understood without reference to sex”
SEXUAL ORIENTATION DISCRIMINATION - COURTS
Prowel v. Wise Bus. Forms (2008 3d Cir.) Coworkers teased self-described effeminate male
Made fun of way he walked, talked, sat
Called him Princess and Rosebud
Gender discrimination – did not conform to expectations of how man should act
5th Cir. 2013 EEOC v. Boh Bros. Constr. Explicit harassment based on effeminate perception
Because of sex? Divided court: yes
Based on stereotyping not gender
4/4/17 – First fed appellate court ruling that sexual orientation discrimination is Title VII sex discrimination
Hively v. Ivy Tech – 7th Cir.
“pure question of statutory interpretation”: sexual orientation discrimination is prohibited as sex discrimination
“Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils” Oncale (USSC ’98)
11TH CIR – MARCH 10, 2017
Sexual orientation discrimination dismissed
Gender non-conformity claim allowed Constitutes “separate, distinct avenue for relief under
Title VII”
Evans v. Georgia Reg’l Hosp.
2D CIR: MARCH 27, 2017
No sexual orientation claim
Possible gender stereotyping claim under Price-Waterhouse – remanded to consider
Concurrence in line with new 7th Cir case: If plaintiff engaged in exact same conduct but been of the
opposite sex, would there have been discrimination?
Was plaintiff discriminated against based on sex of partner?
Is it a gender stereotype that men should only be attracted to women?
Anonymous v. Omnicom Group, Inc.
WORKPLACE TREATMENT
EEOC says No discrimination based on gender stereo-typing or sexual
orientation
Bathroom -Go with presenting gender
No harassment, including refusal to use requested pronouns or first name
TRANSGENDER DISCRIMINATION
EEOC cases for transgender protection
Complainant v. USPS (EEOC, 2013) Supervisor refused to refer to a transgender employee
as “she” or by her new female first name;
Lusardi v. Dep’t of the Army (EEOC, 2013) Banning transgender female from common female
restroom was disparate treatment based on sex
Coworker discomfort, confusion, anxiety did not justify denial of access
Texas Courts? Waiting for 5th Cir.
Eure v. The Sage Corp. (W.D. Texas 2014)
Truck driving instructor born female, presented as male
Subjected to pervasive sarcasm and innuendos “Who is that and who hired that?”
“Please don’t tell me that is a Sage instructor.”
Held: Employee failed to establish discrimination based on failure to act like a woman, only on transgender status. Court stopped short of making new law protecting employee
Preferring to leave to higher courts
FEDERAL COURT BATHROOM CASE
Transgender school police officer prohibited from using either men’s or women’s restroom – only allowed single stall gender neutral
9th Cir. law no longer distinguishes between sex and gender under Title VII
Gender stereotyping is direct evidence of sex discrimination prohibited by Title VII
Roberts v. Clark County Sch. Dist., (D. Nev. 11/28/16)
WHERE’S THE TEXAS BATHROOM BILL?
SB 6 probably is dead, not getting out of house
Would have amended LGC to prohibit: Local governments from regulating use of private entity
restrooms/changing facilities
Public entities from allowing use of multi-use bathroom or changing facility by non-biological gender (EEOC says this is unlawful segregation)
Local government “shall develop a policy” prohibiting use by non-biological gender
MAR 2017 PA. FED CASE
Heterosexual female
Supervisor (female) harassment: “She dresses like a dyke”
Rough comments about her appearance
Told coworkers employee was lesbian
Court: Gender stereotyping violated Title VII
Discrimination based on failure to conform to traditional gender stereotypes
Ellingsworth v. Hartford Fire Ins. Co., E.D. Pa. 3/23/17
2017 ND TX BENEFITS CASE
“Gender Dysphoria”
Employer and insurer refusing to cover breast augmentation surgery and denial of STD
Of many claims, court upheld Title VII claim Adverse employment action consists of “hiring, firing,
demoting, promoting, granting leave, and compensating”
Denial of employment benefits based on sex
DRESS CODES
Funeral director transitioning to female
Planned to follow dress code for women
Fired for not dressing like male dress code
Funeral home won only because suit brought by EEOC (Religious Freedom Restoration Act) Had employee been plaintiff, no RFRA defense
EEOC v. Harris Funeral Homes, Inc., (E.D. Mich ‘16)
PREVENTING CLAIMS
Err on the side of accommodation, non-discrimination and non-harassment
Transition plan? Remind coworkers about EEOC position on bathroom choice,
pronouns and harassment Encourage employee to let you know of problems Encourage employee to discuss transition in meeting with
coworkers Issue updated name and sex id’s (name plate, HR records, IT
screen name, etc) Dress according to dress code for chosen gender Use restroom of choice, while remaining sensitive to privacy
of others
QUESTIONS?
Lloyd Gosselink Rochelle & Townsend, P.C. 816 Congress Avenue, Suite 1900, Austin, TX 78701 (512) 322-5800 www.lglawfirm.com
Sheila Gladstone [email protected]
(512) 322-5863