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 sgladstone@lglawfirm.com

(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After she said she would present as a woman, offer was withdrawn within 10 days Agency said position eliminated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 sgladstone@lglawfirm.com

(512) 322-5863