Gender Identity or Expression

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Yesterday, the newly confirmed Education Secretary and Attorney General issued a joint letter eliminating the Obama administration’s guidance from last year addressing the issue of bathroom use by transgendered students.  Specifically, the former guidance had said that schools must allow students to use the bathroom of the gender with which they identify, even if that gender is different from the students’ biological gender.

The Obama administration had decided that under Title IX, discrimination based on transgender was sex discrimination.  This guidance was in line with positions taken by the EEOC pushing the issue that Title VII covered sexual orientation and gender identity discrimination because of its broad ban on sex discrimination.

Yesterday’s action only impacts public schools and not private employers.  The question is whether it will have a broader impact on EEOC enforcement strategies going forward.

Of course, the Supreme Court may, sooner, rather than later, have the final say on whether Title IX prohibits discrimination based on gender identity.  The Court is scheduled to hear argument in the case of Gavin Grimm v. Gloucester County School Board next month.  The case could have an impact on the interpretation of Title VII, not just Title IX.

We’ll be keeping an eye on this one.

Query: a longtime employee, who has previously identified in your workplace as female, begins dressing for work like a man, grooming according to male standards, and identifying as male.  He begins to make arrangements to have his name formally changed, and a number of other legal documents changed as well.  He also begins using the men’s room at work.  Other coworkers complain about “a woman using the men’s bathroom at work.”  What do you do?

According to the U.S. District Court for the District of Nevada, what you do not do is: 1) ban him from the men’s bathroom for being biologically female, 2) ban him from the women’s bathroom for identifying as male, and 3) require him to use only gender-neutral bathrooms.  Last week, the court made headlines when it granted summary judgment against a school district, on a Title VII sex discrimination claim brought by one of the district’s police officers.  (Roberts v. Clark County School District, No 2:15-cv-00388-JAD-PAL, ECF No. 147).

While the court denied summary judgment as to the officer’s retaliation and hostile workplace claims, it noted that established case law holds that sex stereotyping is prohibited sex discrimination under Title VII.  In this case, the court noted that the district banning the officer from using the women’s bathroom “because he no longer behaved like a woman” was direct evidence of impermissible sex stereotyping.

Also of note: in granting partial summary judgment, the court held that Title VII’s prohibition against sex discrimination includes both sex and gender.  At this point, some of our readers might be somewhat confused at the difference between sex and gender. Citing language from the Ninth Circuit, the court noted the difference between these key terms, in recounting the case law history in this area:

These early cases distinguished between the term ‘sex’, which referred to an individual’s distinguishing biological or anatomical characteristics and the term ‘gender’, [which] refers to an individual’s sexual identity, or socially-constructed characteristics.

The court’s language is significant because it simultaneously rejected the school district’s argument to draw legal distinctions based on these terms:

Although [the district] contends it discriminated . . . based on his genitalia, not his status as a transgender person, this is a distinction without a difference here. [The officer] was clearly treated differently than persons of both his biological sex and the gender he identifies as–in sum, because of his transgender status.

Moreover, the court held that the bathroom action alone was a sufficiently adverse employment action — in that “access to restrooms is a significant, basic condition of employment” — to involve Title VII protections.

We have previously discussed two separate theories that the EEOC and plaintiffs have used to argue sexual orientation and/or gender identity are incorporated into Title VII’s ban on sex discrimination.  These theories have had a mixed track record of success, and there is no certainty in predicting how they will continue to play out in the coming months and years.

Still, a key takeaway from this case is that employers should retain knowledgeable counsel to advise on employee workplace transitions.  Effective transition management can not only help defuse potential workplace tension and avoid litigation, but it can also lead to a more productive workplace, happier employees, and keeping pace with the market’s movement in this direction.

Title VIIAs my colleague Christina Stoneburner posted yesterday and today, North Carolina recently enacted the Public Facilities Privacy & Security Act, which, among other similar state laws that continue cropping up (such as the recently vetoed religious exemption bill in Georgia), curtails protections based on Lesbian, Gay, Bisexual, and/or Transgender (LGBT) status.  These proposed laws have drawn significant media attention and are likely to continue expanding and developing in the foreseeable future.  However, despite these local exceptions, please remember that federal law may still apply.

The Equal Employment Opportunity Commission (EEOC) has taken an aggressive position on sexual orientation and gender identity under federal law, finding they are both protected under Title VII of the Civil Rights Act. Several federal court decisions have found the same, including for example, a recent decision by the federal district court in Arizona, which found with almost no analysis or fanfare, that a transgender prison guard is clearly entitled to protection under Title VII. Doe v. Arizona, No. CV-15-02399-PHX-DGC, 2016 WL 1089743 (D. Ariz. Mar. 21, 2016).  This decision illustrates just how far Title VII jurisprudence has evolved over the past decade.  Many district courts regularly hold that transgender and/or sexual orientation status is protected under federal anti-discrimination laws.

Previously such theories were not readily accepted, and even today remain debatable. Courts have had trouble in the past resolving the dissonance of Congress’ intent, which specifically excluded from the Civil Rights Act sexual orientation and gender identity as protected characteristics.  Indeed, Congress has repeatedly refused to expand Title VII to list sexual orientation and gender identity as protected categories through the Employment Non-Discrimination Act (ENDA).

However, the United States Supreme Court originally opened the door for these gender identity and sexual orientation status protections in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) and Oncale v. Sundowner Services, 523 U.S. 75 (1998).  To recap, very briefly, Hopkins involved a woman who was “too aggressive” and “not feminine enough,” and was ultimately passed over for partnership. The Court found that discrimination for failing to live up to gender stereotypes was actionable. Oncale similarly found same-sex harassment, in this case men harassing other men on an oil rig, was actionable because the harassment was based on expected gender norms.  Since then, the EEOC and some intermediate federal appellate courts have applied this reasoning and found that Title VII can protect transgender status and/or sexual orientation based on these gender norm theories. Macy v. Holder, App. No. 0120120821, 2012 WL 1435995 (EEOC Apr. 20, 2012); see also Glenn v. Brumby, 663. F.3d 1312 (11th Cir. 2011); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004).

As a result, for prudent employers, the question may be moot even in states that may curtail transgender and/or sexual orientation protections.  A body of federal cases protecting against gender identity and/or sexual orientation status discrimination exists and continues to develop.  In addition, many state and local jurisdictions affirmatively provide such protections (e.g., California and New York).  Until further guidance is provided by the Supreme Court or Congress, it would be best to assume discrimination based on these protected characteristics remains prohibited nationwide.

45810489_sThings seem to be developing rapidly in North Carolina.  Just yesterday morning we reported that the ACLU had filed a challenge to the Public Facilities Privacy & Security Act that was passed last week and signed by Governor McCrory.   The response from the North Carolina’s Attorney General’s Office was immediate and decisive:  the AG would not defend this law against the legal challenge filed by the ACLU.

The AG, Roy Cooper, in making his announcement noted that businesses all over the country had taken a strong stance against the law.  New York Governor Andrew Cuomo and the cities of Seattle and San Francisco have banned all nonessential public travel to North Carolina.

The fact that the AG will not defend the law does not mean that lawmakers will not appoint a private attorney or law firm to do so.  In fact, at least one Republican Senator has condemned Cooper’s refusal to defend the law.

What may be getting lost in all of the drama is what the outcome means for employers in North Carolina.  In the immediate future, if the law is repealed or judicially overturned, then Charlotte’s anti-discrimination ordinance will go into effect, which may require some updates to employers’ policies and handbooks.  It also means that municipalities will be free to enact other employment related laws, including increasing the minimum wage.

Just days after North Carolina lawmakers passed the controversial Public Facilities Privacy & Security Act (“Act”), the American Civil Liberties Union (“ACLU”) has filed a lawsuit challenging the law.

6276693_sAlthough the title of the Act seems to imply that it just addresses the use of public restrooms, the law actually goes far beyond that.  Opponents of the Act, say that it is a sweeping attack on the LGBT community.

North Carolina legislators passed the Act after the city of Charlotte enacted an ordinance making it illegal to discriminate against people on the basis of sexual orientation and gender identity. The Act not only states that people must use restrooms assigned to their “biological sex,” it prohibits any municipality from passing certain laws regarding employment.  This means that local governments cannot pass anti-discrimination laws or laws that affect the wages of employees such as minimum wage hikes.

Many employers may like the idea of uniform state-wide consistency in the laws.  However, many businesses have already publicly condemned the law.  In some states, such as Georgia, corporations’ attacks on such laws have doomed them.  As of today, although some businesses have blasted the law, others have publicly supported it.  So far, no corporation has actually threatened to pull its business or refuse to conduct future business in the state.  It is unclear whether corporate pressure, on either side, will affect the political process.

It is also questionable whether this law as drafted will be upheld. It will be interesting to see if the courts expand the Obergefell v. Hodges decision to strike down the law as being unlawful discrimination.  The EEOC has been taking a very aggressive position that sexual orientation and gender identity are protected under Title VII’s prohibitions on gender discrimination.  If the EEOC is right that the existing federal laws prohibit discrimination on the basis of sexual orientation and gender identity, then the Act not only implicates Title VII, it implicates Title IX since it applies to public universities.  Schools found to be in violation of Title IX can lose federal funding.

Although the EEOC has been pushing the boundaries of Title VII interpretation, so far the issue of whether Title VII does in fact outlaw discrimination based on sexual orientation has not been addressed by the Supreme Court.  North Carolina lawmakers may have unwittingly pushed this issue to the Supreme Court

 

TransMayor Bill de Blasio and the New York City Council have made no secret of their desire to expand the reach and protections offered by the New York City Human Rights Law (“NYCHRL”).  This year saw the expansion of these protections, such as bans on using, or even inquiring about, individuals’ credit and criminal background information in many employment decisions. Given this flurry of recent added protections, one would expect there would be no new regulatory hurdles for employers ushered in as the year winds down.  However, the New York City Commission on Human Rights (“the Commission”) decided to provide one last surprise, issuing new enforcement guidelines under the NYCHRL as we say goodbye to 2015.  Entitled Legal Enforcement Guidance on Discrimination on the Basis of Gender Identity or Expression, these new guidelines set forth various forms of conduct by employers (as well as landlords and businesses in general) that the Commission finds to be discriminatory based upon gender, gender identity, and/or transgender status.

As most employers in New York City are aware, existing law prohibits employers from terminating, refusing to hire or promote, or setting different terms of employment because of an individual’s actual or perceived status as a transgender person. This new guidance, however, targets less obvious forms of harassment and discrimination based on gender, gender identity, and/or transgender status, which now also run afoul of the law, including: (i) refusing to use a transgender employee’s favored name, pronoun and/or prefix; (ii) prohibiting a transgender employee from using a single-sex bathroom or locker room, even if inconsistent with their biological sex; (iii) imposing uniform or grooming standards based on an employee’s biological sex or gender; and/or (iv) considering an employee’s actual or perceived transgender status in employee benefits or when evaluating a request for accommodation.  For example, health benefits and leave must be extended on a non-discriminatory basis for transition-related care and/or gender-affirming care.  For many employers, particularly in the restaurant and hospitality industries, the new limitations on uniform and grooming standards will come as a shock.  Frequently uniform and grooming codes in the restaurant and hospitality industries will specify “neckties required for men” or “earrings allowed for women only,” which now appear to be verboten.

It is critically important for employers to review their employment policies immediately (or at least once the champagne has worn off tomorrow) to ensure compliance with the Commission’s new guidance.  You definitely don’t want to risk the draconian penalties, i.e. up to $250,000 where such conduct is found willful, wanton and/or malicious.  If you have any questions regarding the Commission’s new guidance, please reach out to an attorney in Fox Rothschild’s labor and employment department to assist you.  With that, and most importantly, a happy and healthy New Year to you and your loved ones.

4629528_sThe Illinois Human Rights Commission recently ruled against Hobby Lobby and found that it had discriminated against a transgendered employee by refusing to let her use the women’s restroom unless she could provide legal authority mandating that she be allowed to use that bathroom or produce medical documentation that she had surgically completed her transition from male to female.

The case is pretty interesting and should alert employers that they need to be sensitive when dealing with transgendered employees.  Our partner, Dori Stibolt, did a great post on this case for the South Florida Trial Practice blog describing the facts in more detail as well as her recommendations for best practices.  That post, Potty Problems at Hobby Lobby, can be accessed here.

A newly filed EEOC charge alleges that The Holy Family Catholic Community in Inverness, Ill fired its 17-year music director when the director announced on Facebook that he had just become an engaged to his male partner.  This, according to the Portland Press Herald.

See: http://www.pressherald.com/2014/12/06/music-director-fired-by-church-files-claim-for-discrimination/

gay weddings : Closeup of a gay couple holding hands, wearing a wedding ring. Couple is a hispanic man and a caucasian man.

The director, who alleges sex, sexual orientation and marital status discrimination, stated that he was told that “his same-sex relationship violated the tenets of the Roman Catholic Church.”

The Archdiocese of Chicago declined comment.

An Earlier Case

This case is strikingly similar to one we wrote about last February.

The Boston Globe and Boston.com reported what then may have been a legal first – a case filed with the Massachusetts Commission Against Discrimination (MCAD) against a religiously affiliated college prep school by a gay man who claimed that his offer of employment was withdrawn after the school discovered that he listed a “husband” as his emergency contact.

The applicant was offered a job as food services director, but claimed that a school official said that “the Catholic religion doesn’t recognize same-sex marriage, and that was her excuse.  She said, ‘We cannot hire you.’  If I’m planning and making meals for students, I’m not sure what my being gay has to do with the job. All I did was fill out the form honestly.”

He alleged sex and sexual orientation discrimination.

His attorney said that “There is a balance between important values, which are religious liberties, and discriminatory practices. This is a job that has nothing to do with religion . . . and this weighs toward discrimination.  Religiously affiliated entities do not have a free pass to do as they please in how they treat employees, particularly when it comes to our important laws against discrimination.”

The Ministerial Exception

Both cases involve what is called the “ministerial exception.”

On January 11, 2012, we reported about a significant First Amendment religious freedom decision involving the “ministerial exception” which was decided that day by the Supreme Court, Hosanna-Tabor Church v. Equal Employment Opportunity Commission.

The Court had before it a teacher in a religious institution who taught both secular subjects and a class in religion. When she threatened to file a charge of disability when a new teacher was hired to replace her, she was fired for insubordination. Her case involved a head-to-head confrontation between First Amendment religious freedom and the anti-discrimination employment laws.

At issue before the Court was the definition of “minister,” because” the “ministerial exception” holds, in effect, that the government should not get involved in internal church affairs involving “ministers,” and therefore courts should not become embroiled in lawsuits involving “ministers.”

The unanimous Court held that the religious institution must be free to choose its own ministers without state involvement: “The interest of society in the enforcement of employment discrimination statutes is undoubtedly important,” but “so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission.”

Non-Ministerial Duties

In a post in June 2013, we reported that the Roman Catholic Archdiocese of Cincinnati fired a non-Catholic computer teacher in a parochial school allegedly for violating an employment contract requiring her “to conform with Catholic doctrine, which considers pregnancy out of wedlock through artificial means ‘gravely immoral.’”

Did the ministerial exception apply to her and thus permit her firing?

Plaintiff was a female non-Catholic, gay, unmarried parochial school computer teacher. She claimed that she was fired for being pregnant and unmarried.  Prior to trial, the archdiocese lost a motion based upon the recognized “ministerial exception,” since although Plaintiff was a non-Catholic (and thus did not conform to “Catholic doctrine”) she taught only computer classes (and not, for example, religion classes) and was even barred under church rules from teaching religion to her elementary school students.

Therefore, since she did not have ministerial duties in teaching computer classes, the exception did not apply, and a federal jury in Ohio agreed with her and awarded her $171,000 in damages and back pay.

The anti-discrimination laws trumped religious considerations in that case.

With respect to the Massachusetts case in early 2014, a Boston lawyer, Nancy Shilepsky, was quoted as saying that “Our Supreme Judicial Court takes a serious look at issues involving religious liberty and at issues involving discrimination.  They are careful to try to strike the appropriate balance.”

Takeaway

“Balance” and “accommodation” are always key in analyzing religious discrimination cases, or cases where religious practices are involved.

 

Since everyone knows that the country of Malta (“Where’s that, Jake?”) is in the vanguard on human rights, and is more enlightened and progressive than, say, an old-fashioned, traditional country such as the US, which usually lags behind, it should therefore come as no surprise that Malta just outlawed discrimination against transgender individuals, on grounds of sex.

malta flag : very big size malta black map with flag

Malta is the first European country to forbid discrimination on the basis of gender identity in its Constitution.

transgender : Gay Pride flag on stand on pink background Stock Photo

Perhaps the example of Malta may influence the US when it comes to guaranteeing human rights (for its own citizens, that is).

 

On June 16th we issued an “Alert!” when Reuters reported that “President Barack Obama will sign an executive order barring federal contractors from discriminating on the basis of sexual orientation or gender identity.”

It has finally been announced that the President will sign such an order today as tweeted by Valerie Jarrett, senior adviser to the President:  “This Monday, Pres Obama will sign an Executive Order protecting #LGBT workers from employment discrimination #OpportunityForAll.”

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This comes in the midst of the furor over the effect of the Hobby Lobby decision of the Supreme Court on the support for ENDA by LGBT groups.   More is sure to follow – soon.

12:30 pm — The New York Times reported this morning that the President indeed signed the executive order.     “But Mr. Obama rebuffed requests by religious groups to exempt them.   Religious groups argued that they should not be forced to go against their beliefs in order to win or keep federal contracts available to others.   Advocates for religion said the order would lead to a court fight.”