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Sexual Orientation and Transgender Issues in the Workplace

Sexual Orientation and Transgender Issues in the Workplace. Chai Feldblum , Commissioner Equal Employment Opportunity Commission Chai.Feldblum@eeoc.gov. TRAIN HAS LEFT THE STATION.

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Sexual Orientation and Transgender Issues in the Workplace

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  1. Sexual Orientation and Transgender Issues in the Workplace Chai Feldblum, Commissioner Equal Employment Opportunity Commission Chai.Feldblum@eeoc.gov

  2. TRAIN HAS LEFT THE STATION • Courts are now deciding (again) whether discrimination based on sexual orientation and gender identity are forms of sex discrimination. • EEOC helped get this train out of the station and into the courts (again).

  3. TITLE VII -- 1964 It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.

  4. EEOC INTERPETS Title VII LITERALLY In the early years following passage of Title VII, EEOC concluded these were all forms of sex discrimination: • Discrimination against women with children • Discrimination against married women • Sexual harassment • Discrimination based on pregnancy • Discrimination based on gender stereotyping

  5. BUT NOT FOR LGBT PEOPLE • EEOC says sex and being transsexual have nothing to do with each other. Same conclusion with regard to sex and sexual orientation. • No “reasonable cause” to say discrimination has occurred. • EEOC Decision ¶6499 (CCH Sept. 24, 1974) (gender identity) • EEOC Decision (CCH) ¶6495 (March 2, 1976) (sexual orientation)

  6. COVERAGE OF LGBT PEOPLE WAS POSSIBLE “But For” Association Gender Stereotypes

  7. “BUT FOR” THEORY • City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978) • Title VII forbids “treatment of a person in a manner which but for that person’s sex would be different.” • Focus on the individual woman, not women as a class.

  8. ASSOCIATION THEORY • Loving v. Virginia, 388 U.S. 1 (1967) • Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888 (11th Cir. 1986) • Holcomb v. Iona Coll., 521 F.3d 130 (2d Cir. 2008)

  9. GENDER STEREOTYPE THEORY • Price Waterhouse v. Hopkins, 490 U.S. 228(1989) • Discrimination against a woman or a man because the individual does not conform to a gender stereotype.

  10. CULTURE CHANGE MATTERS • “Gender must be irrelevant to employment decisions.” • Employers cannot rely “upon sex- based considerations.” • Sex is to be treated just like race under Title VII. • Discrimination based on gender stereotyping violates Title VII because it is evidencethat sex has been taken into account. Price Waterhouse v. Hopkins (1989)

  11. BUT NOT YET FOR LGBT FOLKS These colors were just beginning to fly.

  12. Circuit Court Decisions • Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999) • Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000) (under re-consideration in 2017) • Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001) • Wrightsonv. Pizza Hut of Am., Inc., 99 F.3d 138 (4th Cir. 1996) (dicta) • Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979)

  13. Circuit Court Decisions • Vickers v. Fairfield Med. Ctr., 453 F.3d 757 (6th Cir. 2006) • Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701 (7th Cir. 2000) (overruled in 2017) • Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69(8th Cir. 1989) (dicta) • DeSantis v. Pac. Tel. & Tel. Co., Inc., 608 F.2d 327 (9th Cir. 1979) • Medina v. Income Support Div., 413 F.3d 1131 (10th Cir. 2005)

  14. EEOC REDUX Lusardi v. Dept of the Army (2015) Macy v. DOJ (2012)

  15. EEOC REDUX • Strategic Enforcement Plan 2012-2016 and 2017-2021 • Baldwin v. DOT (2015)

  16. TWO THEORIES IN MACY Gender stereotyping theory (Price Waterhouse) Rosa v. Park W. Bank (1st Cir. 2000) Schwenk v. City of Hartford (9th Cir. 2000) Smith v. City of Salem (6th Cir. 2004) Glenn v. Brumby (11th Cir. 2011) “But for” theory. “Gender on the brain”

  17. THREE THEORIES IN BALDWIN “But for” theory Association theory Gender stereotyping theory

  18. NEW TRAIN HEADING OUT . . . • Hivelyv. Ivy Tech Cmty. Coll., 853 F.3d 339 (7th Cir. 2017) (enbanc) 8-3 decision. • Christiansen v. Omnicom Grp., Inc., 852 F.3d 195, 202-05 (2d Cir. 2017) (Katzmann, C.J., joined by Brodie, J., concurring). • Zardav. Altitude Express, Inc., 855 F.3d 76 (2d Cir. 2017) – Oral argument heard by en banc Second Circuit on 9/26/17 • Cert petition pending in Evans v. Georgia Regional Hospital from 11th Circuit

  19. BACK AT THE EEOC RANCH: FY13-FY16 LGBT CHARGES 5,088 charges received 1,103 charges pending 3,985 charges resolved Increasing LGBT Charges from FY13-FY16 FY13: 808 FY14: 1,100 FY15: 1,412 FY16:1,768 https://www.eeoc.gov/eeoc/statistics/enforcement/lgbt_sex_based.cfm

  20. Practical Relief $10,800,000 in Monetary Relief Relief for 563 LGBT Individuals • Settlements: 316 • Withdrawals with benefits: 194 • Cause Found: 128 • Successful conciliations: 53 • Unsuccessful conciliations: 75 • Administrative closures: 718 • “Right to Sue” Letter Provided: 2611

  21. NOW IT’S JUST A RACE • Between the Supreme Court and Congress • For National Employment Protection for LGBT People

  22. Sexual Orientation Under Title VII Cornell ILR Labor & Employment Law Program Presented by: Martin L. Schmelkin October 4, 2017

  23. Title VII of the Civil Rights Act • It shall be an unlawful employment practice for an employer --- • to fail or refuse to hire or to discharge . . . or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, conditions or privileges of employment, because of such individual’s race, color, religion, sex, or national origin” 42 U.S.C. §2000e-2(a)(1)

  24. Price Waterhouse v. Hopkins 490 US 228 (1989) • Gender stereotyping, not fitting within gender norms, is a form of sex discrimination and actionable under Title VII. • Hopkins promotion opportunity would be enhanced if she would “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry” Id. At 235

  25. “Gender Stereotyping” or Sexual Orientation Discrimination ? • Following Price Waterhouse, LGBT cases emerge often including both gender stereotyping and sexual orientation claims • But, creates “culling” issues for the Courts: • “difficult to draw” • Prowel v Wise Bus. Forms, 579 F.3d 285 (3d Cir. 2009) • “difficult to discern” • Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005) • “hardly clear” • Centola v Potter, 183 F.Supp.2d 403 (D.Mass 2002) • “distinguishing . . . may be difficult” • Hamm v. Weyauwaega Milk, 332 F.3d 1058 (7th Cir. 2003)

  26. “Gender Stereotyping” or Sexual Orientation Discrimination ? • Which may lead to result based on focus of pleadings and testimony. . . • “Prowell succeeded because he convinced the court that he displayed stereotypically feminine characteristics by testifying that he had a high voice, did not curse, was well-groomed, neat filed his nails, crossed his legs, talked about art and interior design, and pushed the buttons on his factory equipment ‘with pizzazz’” (Prowell, cited by Hively) • And has also led to skepticism by Courts: • “bootstrap” • Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005) • “shoehorn” • Magnusson v City of Suffolk, 2016 WL 2889002 (E.D.N.Y. May 17, 2016) • “repackaged claim” • Burrows v College of Central Florida, 2015 WL4250427 (M.D. Fla. July 13, 2015) • “hollow attempt to . . . recast” • Pagan v Holder, 741 F.Supp.2d 687 (D.N.J.2010)

  27. “Gender Stereotyping” or Sexual Orientation Discrimination ? • Uneven results: • “ . . . creates an uncomfortable result in which the more visibly and stereotypically gay or lesbian a plaintiff is in mannerisms, appearance, and behavior, and the more the plaintiff exhibits those behaviors and mannerisms at work, the more likely a court is to recognize a claim of gender non-conformity which will be cognizable under Title VII as sex discrimination.” • “Plaintiffs who do not look, act or appear to be gender non-conforming but are merely known to be or perceived to be gay or lesbian do not fare as well in the federal courts.” • Hively v. Ivy Tech Community College, 830 F.3d 698 (7th Cir. 2016)

  28. Baldwin v. Foxx, EEOC Doc. 0120133080, 2015 WL 4397641 (July 15, 2015) • Title VII sex discrimination includes sexual orientation discrimination. •  ‘Sexual orientation’ as a concept cannot be defined or understood without reference to sex.” • Sexual orientation discrimination is associational discrimination on the basis of sex. • Sexual orientation discrimination involves discrimination based on gender stereotypes.

  29. Evans v. Georgia Regional Hospital 850 F.3d 1248 (11th Cir. 2017) , reh’g en banc denied (July 6, 2017) • Evans alleged sexual orientation discrimination and gender stereotyping in violation of Title VII. • District Court dismissed, 11th Circuit affirmed, holding sexual orientation discrimination not prohibited by Title VII (but allowing leave to amend complaint on gender stereotyping claim) • 11th Circuit denied petition for en banc rehearing.

  30. Christiansen v. Omnicom Group, Inc.167 F.Supp. 3d (S.D.N.Y. 2017)852 F.3d 195 (2d Cir. 2017) • Openly gay HIV positive man alleges “sex stereotyping” discrimination in violation of Title VII. • SDNY construes claim as sex orientation discrimination, grants motion to dismiss • “[N]umerous case have demonstrated the difficulty of disaggregating acts of discrimination based on sexual orientation from those based on sexual stereotyping.” • “[N]o coherent line can be drawn between these two sorts of claims.” • 2nd Circuit reverses and remands, finds sexual stereotyping. • Chief Judge Katzman concurrence: • “I respectfully think that in the context of an appropriate case our Court should consider reexamining the holding that sexual orientation discrimination claims are not cognizable under Title VII.”

  31. Hively v. Ivy Tech Community College 853 F.3d 339 (7th Cir. 2017)(en banc) • Discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII. • Majority rationale: • Sexual orientation is the preeminent example of sexual stereotyping; • Comparative method; • If change sex, would discrimination have occurred ? • Associational theory; • Evolution of Supreme Court jurisprudence regarding sexual orientation • Romer v. Evans, 517 U.S. 620 (1996) • Lawrence v. Texas, 539 U.S. 558 (2003) • United States v. Windsor, 133 S.Ct. 2675 (2013) • Obergefell v. Hodges, 135 S.Ct. 2584 (2015)

  32. Hively v. Ivy Tech Community College 853 F.3d 339 (7th Cir. 2017)(en banc) • Dissent (Judge Sykes): • Judicial overreach: • “The result is statutory amendment courtesy of unelected judges” • Strict interpretation: • “To a fluent speaker of the English language – then and now – the ordinary meaning of the word “sex” does not fairly include the concept of “sexual orientation”” • Congressional enactments using both “sex” and “sexual orientation” • Violence Against Women Act, Hate Crimes Act, various sections of the U.S. Code

  33. Hively v. Ivy Tech Community College 853 F.3d 339 (7th Cir. 2017)(en banc) • Dissent (Judge Sykes): • Sex Discrimination ≠ Sexual Orientation Discrimination • “An employer who refuses to hire homosexuals is not drawing a line based on the job applicant’s sex . . . Simply put, sexual orientation discrimination doesn’t classify people by sex; it doesn’t draw male/female distinctions but instead targets homosexual men and women for harsher treatment than heterosexual men and women.” • Comparative method has been misapplied due to changing of two variables (gender and sexual orientation) rather than just one • Case is not a variant of race discrimination (Loving) , does not allow for “reading sexual orientation into the statute.” • Sex stereotyping: • “Sexual orientation discrimination does not classify people according to invidious or idiosyncratic male or female stereotypes. It does not spring from a sex-specific bias at all.”

  34. Zarda v Altitude Express, 855 F.3d 76 (2d Cir. 2017), reh’g granted • Donald Zarda, a skydiver, alleged he was terminated by his employer due to his sexual orientation, in violation of Title VII, and NYHRL. • Premised Title VII claim on “sex stereotypes.” • District Court granted summary judgment on Title VII claim. • Zarda appealed in light of Baldwin, seeking overturn Simonton v Runyon, 232 F.3d 33 (2d Cir. 2000). • Second Circuit follows Simonton precedent, notes only entire Court sitting en banc can overturn Simonton. • Rehearing granted on May 25, oral argument September 26.

  35. Differing Views: EEOC & DoJ • On June 23, the EEOC filed an amicus brief, in support of Zarda • En Banc Brief of Amicus Curiae Equal Employment Opportunity Commission in Support of Plaintiffs/Appellants and in Favor of Reversal, Zarda v. Altitude Express, Inc., No. 15-3775 (2d Cir. June 23, 2017) • On July 26, the Department of Justice filed an amicus brief, in support of Altitude Express • Brief for the United States as Amicus Curiae Supporting Defendants-Appellees, Zarda v. Altitude Express, Inc., No 15-3775 (2d Cir. July 26, 2017)

  36. Differing Views: EEOC & DoJ • EEOC asserts: • Sexual orientation discrimination is, by definition, discrimination “because of … sex,” in violation of Title VII. • Sexual orientation discrimination constitutes associational discrimination that violates Title VII. • Sexual orientation discrimination necessarily involves sex stereotyping, in violation of Title VII. • Precedent and practicality dictate overruling Simonton in 2nd Circuit.

  37. Differing Views: EEOC & DoJ • DoJ asserts: • No Title VII Violation unless men and women are treated unequally • Precedent • Congressional Inaction • Theories of EEOC and 7th Circuit (Hively) are without merit • “But for” • Gender stereotyping • Associational Discrimination

  38. Zarda: Oral Argument – Sept 26 “You know we love to hear from the federal government, but it’s a little awkward for us to have the federal government on both sides of this case” --- Circuit Judge Rosemary S. Pooler ---

  39. Petition for Writ of Certiorari, Evans v. Georgia Regional Hospital (U.S. September 7, 2017) (No. 17-370) • Divided Courts of Appeal • 7th Circuit (Hively) • 11th Circuit (Evans) • Divided Federal Agencies • EEOC • DoJ • Important questions to be decided • “Geographic checkerboard” • “Guise of Gender Nonconformity Claims” • LGBT Discrimination • 11th Circuit is wrong • Sexual Orientation discrimination is sex based • Sex stereotyping • Associational discrimination • Congressional inaction not dispositive • LGBT legal landscape has evolved

  40. Presented By: Martin L. Schmelkin Partner Jones Day mschmelkin@jonesday.com 212 326 3990 Any presentation by a Jones Day lawyer or employee should not be considered or construed as legal advice on any individual matter or circumstance. The contents of this document are intended for general information purposes only and may not be quoted or referred to in any other presentation, publication or proceeding without the prior written consent of Jones Day, which may be given or withheld at Jones Day's discretion. The distribution of this presentation or its content is not intended to create, and receipt of it does not constitute, an attorney-client relationship.

  41. Sexual Orientation and Transgender Issues in the Workplace  October 4, 2017 Cornell ILR School, Labor and Employment Law Program Micah Wissinger, Levy Ratner, P.C.

  42. 2015 U.S. Transgender Survey • 30% of respondents who had a job in the year prior to completing the survey reported being fired, denied a promotion, or experiencing some other form of mistreatment in the workplace due to their gender identity or expression, such as being verbally harassed or physically or sexually assaulted at work. • 77% of respondents who had a job in the prior year took steps to avoid workplace mistreatment, such as hiding or delaying their gender transition or quitting their job. http://www.ustranssurvey.org/report

  43. Legal Protections for Transgender Employees • Title VII • Executive Orders Covering Federal Employment • State and Local Laws • Collective Bargaining

  44. Title VII of the Civil Rights Act of 1964  The EEOC and some Circuits have found that discrimination because an employee or job applicant is transgender or gender non-conforming, or because s/he fails to conform to gender stereotypes, is sex discrimination under Title VII. 

  45. Price Waterhouse v. Hopkins (1989). • The Court established that gender stereotyping is actionable as sex discrimination. Schwenck v. Hartford, 204 F.3d 1187 (9th Cir. 2000). Although not a Title VII case, the court stated that the approach taken in earlier Title VII cases rejecting claims by transgender plaintiffs was overruled by the reasoning in Price Waterhouse.

  46. Smith v. City of Salem, 378 F.3d 566 • (6th Cir. 2004). • Title VII prohibits discrimination against transgender individuals based on gender stereotyping. Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011). The government’s termination of a transgender person for his or her gender nonconformity is unconstitutional sex discrimination.

  47. Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821 (April 12, 2012). The EEOC determined that discrimination based on transgender status is sex discrimination in violation of Title VII. Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395 (March 27, 2015). The EEOC determined that denying an employee equal access to a common bathroom corresponding to the employee’s gender identity constitutes discrimination on the basis of sex.

  48. Title VII, Title IX and Bathrooms

  49. Whitaker v. Kenosha Unified School Dist., 858 F.3d 1034 (7th Cir. 2017). • A unanimous decision upholding a district court’s injunction allowing a transgender senior to use the boys’ restroom at school throughout his senior year. • The Seventh Circuit conclusively finds that a transgender student has the right to be treated in accordance with the student’s gender identity under Title IX without reliance on Obama Administration Guidance concerning Title IX obligations to transgender students that was rescinded in February 2017. • Petition for Cert filed August 25, 2017.

  50. Issues Affecting Transgender Employees • Bathrooms and Sex-Segregated Facilities • Discrimination and Harassment • Health Coverage • Identity Documents • Ignorance and Unfamiliarity

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