Case Update

1. Case Update FAPAC National Leadership Conference Atlanta, GA May 3, 2012 Jo Linda Johnson Director, Federal Training & Outreach US Equal Employment Opportunity Commission

2. Agenda • Coverage under Title VII • History of application of Title VII to LGBT employees • Schroer v Billington • Veretto v USPS • Macy v DOJ • Additional Cases • Ward v USPS (SJ in favor of CP) • Sheehy v Navy (OWBPA) • Kareem v State (contractor v federal employee?)

3. INTRODUCTION:Discrimination Against LGBT Employees

4. Discrimination against LGBT employees a widespread problem Up to 68% of LGBT people report experiencing employment discrimination. Williams Institute, “Bias in the Workplace: Consistent Evidence of Sexual Orientation and Gender Identity Discrimination” (2007). 

5. Transgender employees report high rates of discrimination and unemployment In the first national survey of transgender people: • respondents experienced unemployment at twice the rate of the general population. • 50% of respondents were harassed at work. • 26% reported losing a job due to being transgender or gender non-conforming.

6. History of application of Title VII to LGBT employees

7. History of application of Title VII to LGBT employees Language of Title VII does not explicitly include sexual orientation or gender identity/expression. Title VII prohibits discrimination against an employee “because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2.

8. History of application of Title VII to LGBT employees • In the past, courts often rejected Title VII claims by LGBT employees, interpreting Title VII to apply strictly to biological sex, and holding that Congress did not intend to protect LGBT people. • However, the U.S. Supreme Court decided two cases that recognized: • Title VII is not just about biological sex, but also about gender stereotypes; and • Title VII covers same-sex harassment, even if Congress didn’t explicitly contemplate that.

9. Price Waterhouse and Oncale In two important employment cases, the U.S. Supreme Court held that gender stereotyping and same-sex harassment constitute prohibited discrimination under Title VII. • Price Waterhousev. Hopkins, 490 U.S. 228 (1989) • Oncale v. Sundown Offshore Oil Services, 523 U.S. 75 (1998)

10. Price Waterhousev. Hopkins Ann Hopkins was denied partnership in an accounting firm. The employer told her she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” The Court said that Hopkins had an actionable claim under Title VII.

11. Oncale v. Sundown Offshore Oil Services • Male co-workers physically assaulted and threatened to rape plaintiff, Joseph Oncale. Supervisors did nothing. • This was the first case in which the Supreme Court recognized that Title VII prohibits same-sex sexual harassment.

12. Oncale v. Sundown Offshore Oil Services “We see no justification . . . for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. . . . [M]ale-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, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. 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.”

13. After Price Waterhouse and Oncale Since Price Waterhouse and Oncale, courts have held that Title VII protects transgender employees. • Schwenk v. Hartford (9th Cir. 2000) (Title VII covers transgender people) • Smith v. City of Salem(6th Cir. 2004) (transgender firefighter) • Barnes v. City of Cincinnati (6th Cir. 2005) (transgender police officer) • Schroer v. Billington(D.D.C. 2008) (transgender applicant for Library of Congress)

14. After Price Waterhouse and Oncale Courts have held that LGB employees are protected from same-sex sexual harassment and gender stereotyping. • Nichols v. Azteca Restaurant Enterprises(9th Cir. 2001) (harassment of restaurant employee based on gender stereotypes) • Rene v. MGM Grand Hotel (9th Cir. 2002) (sexual harassment of gay male hotel employee) • Prowelv. Wise Business Forms (3d Cir. 2009)(gender stereotyping of gay male machine operator)

15. Schroer v. Billington Diane Schroer applied to the Library of Congress. The employer “admitted that when she viewed the photographs of Schroer in traditionally feminine attire, with a feminine hairstyle and makeup, she saw a man in women's clothing,” and thought that members of congress would not take her seriously. The court held this was gender stereotyping “whether the Library withdrew its offer of employment because it perceived Schroer to be an insufficiently masculine man, an insufficiently feminine woman, or an inherently gender-nonconforming transsexual.” Schroer v. Billington, 577 F.Supp.2d 293 (D.D.C. 2008)

16. Schroer v. Billington The court also held that discrimination based on gender transition is sex discrimination, just as discriminating against someone because they converted from one religion to another is discrimination based on religion. “Imagine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer testifies that he harbors no bias toward either Christians or Jews but only ‘converts.’ That would be a clear case of discrimination ‘because of religion.’ No court would take seriously the notion that ‘converts’ are not covered by the statute. . . . But in cases where the plaintiff has changed her sex . . . courts have … carved such persons out … by concluding that ‘transsexuality’ is unprotected by Title VII.”

17. Veretto v USPS The Commission found that the Complainant's complaint of discriminatory harassment based on sexual stereo-typing is cognizable under Title VII, and may therefore be processed under Part 1614 of EEOC’s federal sector EEO complaints process. Result: • Claims of discrimination based on sexual orientation are typically claims of bias based on failure to conform to typical gender roles. Covered under Title VII’s sex discrimination prohibition. • Agencies should process such allegations as a claim of discrimination based on sex under 29 C.F.R. Part 1614.

18. Macy v DOJ The Commission found that the Complainant's complaint of discrimination based on gender identity, change of sex, and/or transgender status is cognizable under Title VII, and may therefore be processed under Part 1614 of EEOC’s federal sector EEO complaints process. Result: • Claims of discrimination based on transgender status or gender identity are covered under Title VII’s sex discrimination prohibition. • Agencies must process an allegation of discrimination based on transgender status or gender identity as a claim of discrimination based on sex under 29 C.F.R. Part 1614.

19. Other issues What about: • bathroom issues? (Cruzan v. Special School Dist, No. 1, 294 F.3d 981 (8th Cir. 2002)) • Actual or presumed customer bias? (Schroer v. Billington) • intentional misuse of pronouns? (Tronetti v. TLC HealthNet Lakeshore Hosp., 2003 WL 22757935 (W.D.N.Y.,2003))

20. Other Notable Recent Cases

21. Other Notable Recent Cases • Ward v USPS, 0720070029 • Cp rec’d a conditional offer of employment from agency to be an electrician in a ship yard. After a hearing test, the offer was rescinded. Cp alleged disability discrimination. AJ found in favor of cp on SJ. AJ decision was affirmed, as agency failed to show cp was a direct threat.

22. Other Notable Recent Cases • Sheehy v Navy, 0520100403 • Settlement of claims voided as to ADEA claims (only), where that agreement did not comply with OWBPA. • Kareem v State, 0520110063 • Cp worked as a language instructor/curriculum developer for the agency’s Foreign Service Institute. She filed a complaint alleging harassment, but the agency dismissed for failure to state a claim, finding that cp was a contractor and not an employee. Case goes through the 12 factors (see Ma v HHS, 01962390, May 29, 1998) and finds that cp was de facto employee.