Best Practices for the LGBTQ-Friendly Workplace

1. Best Practices for the LGBTQ-Friendly Workplace Talia Y. Guerriero, Esq. Nora J. Broker, Esq.

10. Statistics • .6% of adults in US, or 1.4 million individuals, identify as transgender – Williams Institute (2016)

11. Statistics, cont. 2015 US Transgender Survey • Work – mistreatment, firing, denied promotion (30%) • 19% fired or denied promotion or job b/c of gender identity • 15% verbally harassed, physically attacked, and/or sexually assaulted at work • 23% other mistreatment - told to use wrong restroom, present as cisgender, shared confidential information

12. Statistics, cont. 2015 US Transgender Survey • Poverty – 29% compared to 12% general population • Attempted Suicide– 40% compared to 4.6% gen pop • Race – disparities increased for people of color • Family – violence (10%); kicked out of home (8%) • Schools - verbally harassed (54%), physically attacked (24%), and sexually assaulted (13%)

13. Categories of Protections & Rights Title VII - Federal ORS 659A.030 - State Equal Protection- Federal Disability-related Non-Retaliation

14. Title VII of the Civil Rights Act of 1964 42 U.S. Code § 2000e-2 • 15 or more employees • Illegal to: • refuse to hire or terminate; • discriminate against in compensation; • discriminate in terms, conditions, or privileges of employment; • segregate or classify employees in a way that deprives opportunity • On the basis of SEX

15. Title VII of the Civil Rights Act of 1964 42 U.S. Code § 2000e-2 Protects against: • Intentional discrimination • Hostile work environment • “Disparate impact”

16. Title VII of the Civil Rights Act of 1964 42 U.S. Code § 2000e-2 • Debates in case law about whether sex includes “gender” and gender stereotypes • Debates about whether it can be sex discrimination if both “male” and “female” employees are being treated the same, regardless of transgender status

17. Some Federal Courts Holding No Transgender Discrimination Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662-63 (9th Cir.1977) • [Overruled by Schwenk v. Hartford, 204 F.3d 1187, 1201–02 (9th Cir. 2000)?] • Sommers v. Budget Mktg., Inc., 667 F.2d 748, 750 (8th Cir.1982) • Ulane v. Eastern Airlines, 742 F.2d 1081, 1085 (7th Cir.1984) • Doe v. U.S. Postal Service, 1985 U.S. Dist. LEXIS 18959, 1985 WL 9446, *2 (D.D.C.1985)

18. Some Federal Courts Holding Yes Transgender Discrimination Doe v. Boyertown Area School District, 893 F.3d 179 (3rd Cir. July 26, 2018) (Title IX) EEOC v. Harris Funeral Homes, 884 F.3d 560 (6th Cir. March 8, 2018) (Title VII) • Whitaker v. Kenosha Unified School District, 858 F.3d 1034 (7th Cir. May 30, 2017) (Title IX and Equal Protection) • Glenn v. Brumby, 663 F.3d 1312 (11th Cir. Dec. 6, 2011) (Equal Protection)

19. Federal Courts Holding No Sexual Orientation Discrimination Vickers v. Fairfield Medical Center, 453 F.3d 757, 763 (6th Cir. 2006). DeSantis v. Pac. Tel. & Tel. Co., Inc., 608 F.2d 327, 329–30 (9th Cir.1979) Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir.2005) (reverse sexual orientation discrimination)

20. Federal Courts Holding Yes Sexual Orientation Discrimination Hively v. Ivy Tech Community College of Indiana, No. 15-1720, 2017 WL 1230393 (7th Cir. Apr. 4, 2017) EEOC v. Scott Med. Health Ctr., P.C., No. 16-225, 2016 WL 6569233 at *5 (W.D. Pa. Nov. 4, 2016) Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. Feb. 26, 2018) TerVeer v. Billington, 34 F. Supp. 3d 100, 116 (D.D.C. 2014)

21. 2006–argued that Title VII doesn’t include transgender status per se • 2011– OPM issued guidance that its nondiscrimination policies covered transgender discrimination Positions of the Federal Government

22. 2012– EEOC ruled gender identity discrimination is sex discrimination. Macy v. Holder, No. 0120120821 • 2014– Holder Memo – will no longer argue Title VII doesn’t include gender identity per se Positions of the Federal Government

23. 2017– Sessions Memo – withdrawing Holder Memo Positions of the Federal Government

24. Oregon Revised Statutes: 659A.030 • One or more employees • Illegal to: • refuse to hire or terminate; • discriminate against in compensation; • discriminate in terms, conditions, or privileges of employment • On the basis of sexual orientation • Sexual orientation includes actual or perceived gender identity under ORS 174.100

25. Oregon Revised Statutes: 659A.030 Protects against: Intentional discrimination Hostile work environment “Disparate impact”

26. Oregon Revised Statutes: 659A.030Tanner v. Oregon Health Scis. Univ., 157 Or. App. 502, 971 P.2d 435 (1998) • University's denial of insurance benefits to domestic partners of its homosexual employees amounted to discrimination “because of” their sexual orientation

27. Oregon Revised Statutes La Manna v. City of Cornelius, 276 Or. App. 149, 166, 366 P.3d 773, 783 (2016) Dawson v. Entek Int'l, 630 F.3d 928, 939 (9th Cir. 2011)

28. Hostile Work Environment • Sufficiently severe or pervasive • unreasonably interfering with work performance • creating an intimidating, hostile or offensive working environment • Shoes of a reasonable transgender person

29. Hostile Work Environment Consider: • Failing to address co-worker harassing comments, misgendering, deadnaming; • Access to bathrooms; • Denial of reasonable requests like bandanas; • Failing to address name/ID issues;

30. Hostile Work Environment Consider: • Violating privacy rights; • Heightened scrutiny; and • Disciplining employees for emotional responses to harassing conduct.

31. equal protection claim under 42 U.S.C.A. § 1983 • State Actors Soho v. U.S., 2008 WL 151831 (D. Or. 2008) refusing to issue a commercial driver's license because plaintiff “was a sex change” could support an equal protection claim

32. equal protection claim under 42 U.S.C.A. § 1983 • State Actors Glenn v. Brumby, 663 F.3d 1312, 1320 (11th Cir. 2011) “We conclude that a government agent violates the Equal Protection Clause's prohibition of sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity.”

33. Disability Accommodations “Reasonable Accommodation” • - Modification or adjustment • - Might include time off • - Look to askjan.org for ideas

34. Disability Accommodations “Interactive Process” • Employer must talk about limitations even if employee doesn’t mention the ADA or “disability”

35. Non-Retaliation or “Whistleblower” Protections • Title VII of the Civil Rights Act of 1964 • Americans with Disabilities Act (ADA) • Oregon Revised Statutes: 659A  • FMLA/OFLA

36. Non-Retaliation or “Whistleblower” Protections Protects against Adverse Employment Actions: Anything that might discourage a “reasonable” employee from making, reporting, or supporting a complaint

37. Non-Retaliation or “Whistleblower” Protections TWO KINDS OF ACTIVITY For reporting or making a COMPLAINT about possible legal violations For USING or INVOKING legal rights

38. Non-Retaliation or “Whistleblower” Protections Requires the report/complaint: • Made to or known by management; • Made in “good faith;” • Contains information that employee believes is evidence of violation of law, rule, or regulation

39. Non-Retaliation or “Whistleblower” Protections Protects against: Adverse Employment Actions

40. TIPS • Contingency Agreements • Deadlines • Social Media & Texts • Document, document, document!

41. TIPS, Cont. • Confidentiality provisions at work • Unemployment benefits • Personnel file request • Report! • Affiliation discrimination

42. HYPOTHETICALS

43. Price Waterhouse490 U.S. 228 (1989) perceived to be too “macho” for a woman; “take a course at charm school” and “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Title VII reaches sex stereotyping: • “an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.”

44. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) all male oil rig; coworkers “forcibly subjected” the plaintiff to sex-related, humiliating actions, physical assault, rape threats, and name calling. Employer knew of conduct. Title VII prohibits same-sex sexual harassment, as long as the plaintiff is able to prove that the harassment occurred because of the victim’s sex.   - harassment need not be motivated by sexual desire – harasser can be straight or gay

45. Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 874 (9th Cir. 2001) Male plaintiff stated a Title VII claim where he was harassed “for walking and carrying his tray ‘like a woman’-i.e., for having feminine mannerisms”

46. Questions? Discussion? Talia Y. Guerriero talia@oregonworkplacelaw.com 503-459-4010 Nora J. Broker brokern@bennetthartman.com 503-546-9624