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December 19, 2012

December 19, 2012. AGENDA. LGBT Cultural Competency Historical Overview Title VII cases Beyond Macy DOMA vs. ENDA. Lesbian, Gay, Bisexual and Transgender (LGBT) Cultural Competency. Definitions.

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December 19, 2012

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  1. December 19, 2012

  2. AGENDA • LGBT Cultural Competency • Historical Overview • Title VII cases • Beyond Macy • DOMA vs. ENDA

  3. Lesbian, Gay, Bisexual and Transgender (LGBT)Cultural Competency

  4. Definitions • Sexual Orientation - a person’s emotional, romantic, and/or sexual attraction to other people based on the gender of the other person; generally defined as homosexuality, bisexuality, or heterosexuality • Gender Identity - a person’s internal sense of being male or female • Gender Expression - an individual’s characteristics and behaviors such as appearance, dress, mannerisms, speech patterns, and social interactions that are perceived as masculine or feminine • Gender Role - that part of behavior that is influenced by society’s expectation of what is gender-appropriate

  5. Definitions cont. • Transgender - refers to people with a gender identity that is different from the sex assigned to them at birth • Transition - the process of changing the gender role a person takes on publicly from one that matches their assigned sex at birth to one that matches their gender identity • Transsexual – more specifically describes transgender people who have undergone genital surgery • Transvestite - generally male heterosexuals who cross-dress as females for sexual arousal

  6. Key Concepts • Birth/Assigned sex – biological • Gender identity- personal sense of being male or female • Gender expression – behavior, role • Sexual orientation - attraction

  7. Sexual Orientation“Are you gay or straight?” It’s not that simple! Behavior ≠ identity ≠ orientation • Transgender or transsexual says nothing about the individual’s sexual orientation • Both homosexuals and transvestites are content with the sex into which they were born

  8. Historical Overview

  9. Executive Order 10450 On April 27, 1953, President Eisenhower issued Executive Order 10450 (Security Requirements for Government Employment), which made homosexuality (“sexual perversion”) grounds for denying or dismissing persons from federal employment. Ban was enforced by the Civil Service Commission (predecessor to OPM) until July 1975, when it announced that it was dropping “immoral conduct” and “notoriously disgraceful conduct”, and homosexuality as a sole basis for disqualification.

  10. Kameny v. Bruckner, 365 U.S. 843 (1961) • In 1957, the Army Map Service fired Dr. Franklin E. Kameny, a WWII veteran with an M.A. and Ph.D. in astronomy from Harvard University, simply because he was gay • Dr. Kameny sued the Army Map Service and lost his case. On appeal he lost again, and then the Supreme Court denied his petition for certiorari.

  11. Frank Kameny In 2009, OPM Director John Berry officially apologized to Dr. Kameny and presented him with OPM's highest honor, the Theodore Roosevelt Award, given to those who are courageous in defense of our nation's Merit Principles Upon Dr. Kameny’s death in October 2011, Director Berry called him “an American hero” 

  12. Title VII Civil Rights Act of 1964 Prohibits employers from discriminating with respect to "compensation, terms, conditions, or privileges of employment, because of . . . sex” 42 U.S.C. § 2000e-2(a)(1)

  13. Civil Service Reform Act of 1978 • Made it a prohibited personnel practice for any employee who has authority to take certain personnel actions from discriminating for or against employees or applicants for employment on the basis of conduct that does not adversely affect employee performance. 5 U.S.C. § 2302(b)(10) • Complaints go to OSC, rather than EEOC • OSC has not routinely enforced for sexual orientation discrimination

  14. Executive Order 13087 • Prohibits discrimination based on sexual orientation in the competitive service of the federal civilian workforce. • Signed by President Clinton on May 28, 1998 • In a statement that same day, President Clinton said:“The Executive Order states Administration policy but does not and cannot create any new enforcement rights (such as the ability to proceed before the Equal Employment Opportunity Commission). Those rights can be granted only by legislation passed by the Congress, such as the Employment Non-Discrimination Act.”

  15. Presidential Memoranda • President Obama issued two Presidential Memoranda (in June 2009 and June 2010) directing federal agencies to extend whatever benefits they could, under existing authority, to the same-sex partners of federal employees.    • In response, OPM issued regulations extending sick and funeral leave, as well as long-term care insurance, to the same-sex partners of federal employees. Later included travel and relocation assistance, child care subsidies, and certain retirement benefits.    • However, for those benefits of federal employment that are limited to spouses, the Defense of Marriage Act (DOMA), prohibits coverage of same-sex domestic partners, even if legally married under state law. 

  16. Gender Identity Protection • In January 2010, OPM added gender identity to the equal employment opportunity policy governing all federal jobs.  • In September 2011, OPM issued additional guidance to federal managers regarding the equal treatment of transgender workers. • Language that explicitly bans employment discrimination based on gender identity added to the EEO statement on the USAJobs website

  17. VA EEO Policy on Sexual Orientation Discrimination Complaints Secretary Shinseki’s May 13, 2010 Memo: “Previously, VA's Office of Resolution Management processed complaints of discrimination based on sexual orientation through the informal counseling stage only. Effective immediately, complaints of discrimination filed based on sexual orientation that meet the appropriate requirements, will be processed through formal investigation as outlined in EEOC regulation 29 C.F.R. 1614.” Attached FAQs : “OEDCA will issue a Final Agency Decision on the merits of your claim within 60 days of its receipt of your complaint file. There will be no right to appeal to EEOC since sexual orientation currently is not a prohibited basis under Title VII.” See also VA Directive 5977, Equal Employment Opportunity Discrimination Complaints Process, May 5, 2011

  18. Title VII Cases

  19. LGBT Discrimination Under Title VII Courts and EEOC routinely denied Title VII coverage based on the fact that Congress did not have gay men, lesbians, bisexuals or transgender people in mind when it banned sex discrimination • “…Congress never considered nor intended that this 1964 legislation apply to anything other than the traditional concept of sex.” • Title VII applies to “traditional gender distinctions” • Ulane v. Eastern Airlines, 742 F.2d 1081 (7th Cir. 1984) • Machinik v. Secretary of Veterans Administration, EEOC Appeal No. 01882988 (1988)

  20. Gender Stereotyping = Sex DiscriminationPrice Waterhouse v. Hopkins, 490 U.S. 228 (1989) High performing female senior manager at accounting firm had partnership deferred. She was advised to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” The Supreme Court found that the employer’s decision was based on sexual stereotyping of appropriate female appearance and behavior, and held that it is covered under Title VII as sex discrimination: “In forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”

  21. Same–Sex Harassment = Sex DiscriminationOncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) Roustabout on all-male oil rig “forcibly subjected to sex-related, humiliating actions against him” by co-workers The Supreme Court held that same-sex sexual harassment comes under Title VII as sex discrimination. “… male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils,…” “Title VII prohibits “discriminat[ion] ... because of ... sex” in the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.”

  22. Sexual Orientation vs. Gender StereotypingBrown v. Secretary of Air Force,EEOC Appeal No. 01A31163 (2003) • Distinction drawn between discrimination based on sexual orientation and cases based on gender stereotyping. • No Title VII claim where comments limited to gay slurs

  23. Sexual Orientation and Gender StereotypingCano v. Secretary of Homeland Security,EEOC Appeal No. 07A40081 (2006) • The fact that both types of discrimination may be present does not preclude a violation of Title VII. • Complainant stated a claim of harassment because, though much of the conduct was aimed at suggesting he was gay, other conduct clearly was directed at his gender in the form of referring to him in feminine terms.

  24. Gay Slurs = Sexual StereotypingHitchcock v. Secretary of Homeland Security,EEOC Appeal No. 0120051461 (2007) Male supervisory screener was terminated for allegedly groping a male airline employee. He alleged discrimination based on both his sexual orientation and his “lack of masculinity” • Sexual orientation discrimination does not state a claim for relief as sex discrimination under Title VII, • Discrimination due to “lack of masculinity” is gender stereotyping sex discrimination under Title VII • Use of derogatory terms that refer to sexual orientation does not automatically show that RMO was motivated by complainant's alleged sexual orientation as opposed to his “lack of masculinity”

  25. Homophobic Mocking = Sex Discrimination Rosa v. Secretary of Veterans Affairs,EEOC Appeal No. 0120091318 (2009) Complainant alleged coworkers harassed him with “homophobic gestures, homosexual mannerisms, and verbal mocking using very feminine voices.” • VA construed the allegations as based on sexual orientation; dismissed for failure to state a claim • EEOC found that a “fair reading of the complaint” was that the complainant was “alleging that he was harassed because he was male, not because of sexual orientation.”

  26. Gay Marriage = Gender Stereotyping Veretto v. USPS, EEOC Appeal No. 0120110873 (2011) Complainant alleged he was physically and verbally harassed after announcing his marriage to another male in local newspaper • EEOC found this was an allegation of harassment for failure to conform to traditional stereotype that males marry females • Covered under Title VII as gender stereotyping sex discrimination

  27. Gay Marriage = Gender Stereotyping Veretto v. USPS, EEOC Appeal No. 0120110873 (2011) Complainant alleged he was physically and verbally harassed after announcing his marriage to another male in local newspaper • EEOC found this was an allegation of harassment for failure to conform to traditional stereotype that males marry females • Covered under Title VII as gender stereotyping sex discrimination

  28. Plausible Sexual StereotypingCastello v. USPS,EEOC Appeal No. 0520110649 (2011) • Lesbian mailhandler alleged hostile work environment discrimination based on “sex (female) sexual orientation” when manager (MDO) made an “offensive and derogatory comment about her having relationships with women” • Agency dismissed for failure to state a claim • EEOC vacated and remanded because “…Complainant has alleged a plausible sex stereotyping case which would entitle her to relief under Title VII if she were to prevail.” “Complainant has essentially argued that MDO was motivated by the sexual stereotype that having relationships with men is an essential part of being a woman, and made a negative comment based on Complainant’s failure to adhere to this stereotype.”

  29. Transgender = Gender StereotypingSchroer v. Billington, 577 F. Supp. 2d. 293 (D.D.C. 2008) • After retiring as a highly decorated Colonel from the Army Special Forces he began transitioning from male to female • He was offered a position as a terrorism research analyst at Library of Congress. After Schroerdisclosed that she planned to transition to female, the job offer was abruptly rescinded. • District Court held that transgender discrimination is “literally” sex discrimination • Analyzed as gender stereotyping • Religion analogy -discrimination against Christians who convert to Judaism is discrimination based on religion, not discrimination based on a separate class

  30. Mia Macy • Arizona police detective and ballistics expert, trained on ATF computer systems Applied for a job with ATF as male, prior to transitioning told the job was hers pending routine background check • Near the end of the process, Mia changed her legal name and gender on ID documents. she called ATF to let them know • She was suddenly told that funding for the position had been cut, but in fact someone else had been hired for the job • She filed an EEO complaint with ATF alleging sex discrimination under Title VII • ATF refused to process the complaint, saying Title VII didn’t apply to transgender employees • She appealed to EEOC asking it to clarify that Title VII does protect transgender people

  31. Transgender Discrimination Violates Title VIIMacy v. Department of JusticeEEOC Appeal No. 0120120821 (April 20, 2012) “We conclude that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on . . . sex’ and such discrimination therefore violates Title VII.” “When an employer discriminates against someone because the person is transgender, the employer has engaged in disparate treatment ‘related to the sex of the victim’ . . . . regardless of whether [it is] because the individual has expressed his or her gender in a non-stereotypical fashion, because the employer is uncomfortable with the fact that the person has transitioned or is in the process of transitioning from one gender to another, or because the employer simply does not like that the person is identifying as a transgender person.”

  32. Beyond Macy

  33. VA Issued New EEO Policy GuidanceMay 31, 2012 “On April 20, 2012, EEOC ruled that employment discrimination based on gender identity or transgender status should be considered under the sex discrimination prohibitions in Title VII of the Civil Rights Act of 1964. Consequently, the Office of Resolution Management will process complaints of this nature in accordance with the EEO discrimination complaint process proscribed in 29 CFR 1614.” www.diversity.va.gov/policy/statement.aspx#b

  34. EEOC’s Guidance after Macy Commissioner Chai Feldblum: • Gender is taken into account if there is “gender on the brain” • Anyone who is gay, who can argue that gender was taken into account should be allowed to go through the 1614 EEO investigation process and get to the EEOC for a determination • Agencies should amend their EEO complaint forms to include “Gender Identity” in addition to “Male or Female” in the parenthesis after “Sex” in the list of bases of discrimination www.eeoc.gov/federal/training/brown_bag_macy.cfm

  35. Sexual Orientation = Sex Discrimination? Johnson v. Shinseki, EEOC No. 560-2011-00277X Non-selection case alleging discrimination based on age and sexual orientation. On August 14, 2012, AJ from EEOC’s St. Louis District Office addressed sexual orientation claim “under the guidance of Macy” “Sexual orientation, like transgender, is not itself a protected class. However, the necessary implication of Macy is that when an employer makes a discriminatory employment decision based on an employee’s sexual orientation, the employer impermissibly takes sex or gender into account in violation of Title VII.” OEDCA entered a Final Agency Order adopting the AJ’s decision

  36. OEDCA Final Agency Decision September 2012 • Sexual orientation case that went directly to OEDCA after investigation by ORM pursuant to VA Directive 5977 • “Due to the EEOC’s decision in Macy v. Department of Justice, EEOC Appeal No. 012012821 (April 2012), we conclude that the complainant’s sexual orientation claim states a cognizable claim of sex discrimination under Title VII. Thus, we have added the claim of sex discrimination to the instant complaint.” • Based on Macy and EEOC’s informal guidance, OEDCA provided the complainant with 29 C.F.R Part 1614 appeal rights

  37. DOMA vs. ENDA

  38. Defense of Marriage Act (DOMA) • Enacted 1996, codified at 1 U.S.C. § 7 and 28 U.S.C. § 1738C • Defines “marriage” as “a legal union between one man and one woman as husband and wife,” and “spouse” to mean “a person of the opposite sex who is a husband or a wife”  • Prohibits federal recognition of civil marriage • Affects the terms, conditions, or privileges of employment • Same-sex spouses of federal employees are not eligible for all employee benefits that are currently provided to employees with different-sex spouses, including • Survivor pensions • FMLA • Family health plan

  39. Supreme Court Agrees to Hear DOMA Case United States v. Windsor • 699 F.3d 169 (2nd Circuit, 2012) • Certiorari granted December 7, 2012 • DOMA imposes greater Federal estate tax burden upon the death of same-sex spouse • DOMA challenged as violating Equal Protection Clause of Fifth Amendment

  40. ENDA (Employment Non-Discrimination Act) • Proposed legislation that would prohibit employment discrimination against individuals based on their sexual orientation or gender identity • The bill would mirror Title VII, prohibiting employers from firing, refusing to hire, or discriminating against those employed or seeking employment based on their perceived or actual sexual orientation or gender identity • The bill would also prohibit retaliation, covering individuals who have opposed unlawful practices or who have participated in an employment discrimination proceeding

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