Employment Discrimination Report : New York Attorneys & Lawyers for Labor Discrimination Defense : Fox Rothschild LLP

We have written frequently about various states and municipalities outlawing discrimination in employment against transgendered individuals. (On November 18, 2011 we noted that Massachusetts became the 16th state to outlaw such discrimination, and  as recently as April 1st we wrote about a debate in Anchorage about this issue),  

Now the EEOC has held, for the first time, that under Title VII discrimination against a transgendered individual is a form of sex discrimination. Transgendered individuals can now file charges of such discrimination with the EEOC. 

See the excellent ediscussion of Macy v. Holder, EEOC case number 0210210821, by Professor Arthur Leonard of New York Law School. 

In this case Mia Macy, a transgender woman, who was a detective told that she would be hired by the federal ATF agency pending a background check, was not, in fact, hired after she disclosed her transgendered status. Although the EEOC did not pass upon the merits of Macy’s case, it nonetheless ruled that under the famous Supreme Court case of Price Waterhouse v. Hopkins where the Court held that sex discrimination under Title VII related to gender, as well as biological sex, “gender discrimination” included discrimination against transgender people.

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On May 3, 2011 we wrote that Nevada passed a law banning discrimination against trangendered individuals, and on November 18, 2011 we wrote that Massachusetts banned such discrimination.  And as recently as March 27, 2012, we noted that even South Bend, Indiana banned discrimination against lesbians and gays because, the mayor noted, it was good for business.       

And now even Anchorage, Alaska is debating (bitterly, by the way) its Proposition 5 ballot initiative which is up for a vote this week which would ban discrimination based upon sexual orientation and transgender identity.  According to the the National Gay and Lesbian Task Force, 16 states, 134 cities and counties, and the District of Columbia have discrimination laws for private entities that include protections for transgender individuals.

Read more: Fairbanks Daily News-Miner - Anchorage equal rights measure fuels passionate debate

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Great new article on the Glenn v. Brumby case (which we discussed on December 18, 2011) which held that the Fourteenth Amendment to the Constitution protects transgendered government employees from discrimination on the basis of their transgender identity.   Read David Kemp in the March 19th Verdict from Justia.com 

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In a recent case from Georgia, a plaintiff who had been diagnosed with Gender Identity Disorder (“GID”), was fired from her job with the state of Georgia when she made it known that she was undergoing gender transition from male to female. The stated reason for termination was that plaintiff’s “intended gender transition was inappropriate, that it would be disruptive, that some people would view it as a moral issue, and that it would make [plaintiff’s] co-workers uncomfortable.”   

Plaintiff sued alleging sex discrimination, but not under Title VII, which applies to both public and private employers, but solely under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution (which applies to public employers, not private employers). The Court wasted no time in marshalling the caselaw starting with the Supreme Court’s Price Waterhouse case in 1989 which held that discrimination based upon gender stereotype is sex-based discrimination.  

Asking the question “whether discriminating against someone on the basis of gender non-conformity is sex-based discrimination under the Fourteenth Amendment, the Court answered in the affirmative, holding that this was so whether it was described as being sex or gender based. The Court stated that the employer’s discriminatory intent was amply demonstrated by direct deposition testimony.

Although this ruling applies solely to public employers because it was filed under the Fourteenth Amendment, private employers should take note of the clear signal given by the Court that “[i]f this were a Title VII case, the analysis would end here” - after the clear direct discriminatory evidence was adduced.     

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On Wednesday, the Massachusetts passed and sent to Governor Deval Patrick, a bill--H.3810, which outlaws employment discrimination on the basis of “gender identity.”  It is expected that Governor Patrick will sign the bill which will take effect on July 1, 2012.  

The proposed legislation would insert the phrase “gender identity’’ to chapters of state law governing discrimination in employment, housing, insurance, mortgage loans, and credit. However, it does not include special considerations to transgendered individuals in public accommodations, such as bathrooms and locker rooms.

The bill defines gender identity as “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” The legislation also provides some non-exhaustive examples of how a person can establish they are transgendered.

If this bill is signed into law, as anticipated, Massachusetts employers must ensure their decision makers are aware that taking adverse action against a transgendered person is unlawful.  Internal anti-discrimination trainings, manuals and employee handbooks should also be revised, where necessary, to reflect this change.

We will keep you posted. 

Have a great weekend.

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On May 27, 2011, the federal Office of Personnel Management issued guidelines to federal agencies regarding transgendered employees, i.e., those who are in transition from one gender to another. They must “all be treated with dignity and respect” consistent with the government’s policy of providing a discrimination-free workplace. 

The "guidance" defines and describes "gender identity" as "the individual's internal sense of being male or female.  Gender identity is generally determined in the early years of an individual's life and, if different from the individual's physical gender, may result in increasing psychological and emotional discomfort and pain.  The way an individual expresses his or her gender identity is frequently called 'gender expression,' and may or may not conform to social stereotypes associated with a particular gender."

The "guidance" defines and describes "transgender" as "people with a gender identity that is different from the sex assigned to them at birth.  Someone who was assigned the male sex at birth but who identifies as female is a transgender woman.  Likewise, a person assigned the female sex at birth but who identifies as male is a transgender man.  Some individuals who would fit this definition of transgender do not identify themselves as such, and identify simply as men and women, consistent with their gender identity.  The guidance discussed in this memorandum applies whether or not a particular individual self-identifies as transgender."

Federal agencies are required to ensure that their policies and practices forbid discrimination on the basis of gender identity or perceived gender non-conformity, and that dress codes and bathroom access are consistent with the employee’s new gender. The agencies are permitted to allow a “reasonable temporary compromise” where an employee is in transition from one gender to another.              

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