SEX STEREOTYPING AND GENDER IDENTITY EMPLOYMENT DISCRIMINATION

1. SEX STEREOTYPING AND GENDER IDENTITY EMPLOYMENT DISCRIMINATION Presented by Susan P. Segal and Jennifer N. MacLennan

2. INTRODUCTION • Terms • Gender Identity: One’s internal, personal sense of being a man or woman, a boy or a girl. • Gender Expression: External manifestation of one’s gender identity, usually expressed through “masculine” or “feminine” behavior, clothing, haircut, voice or body characteristics. • Sexual Orientation: An individual’s physical, romantic and/or emotional attraction to another person. Gender identity and sexual orientation are not the same.

3. INTRODUCTION • Terms • Transgender: An umbrella term for people whose gender identity and/or gender expression differs from their sex at birth. • Transition: The process of altering one’s birth sex. Transition includes some or all of the following personal, legal and medical adjustments: telling one’s family, friends and/or co-workers; changing one’s name and/or sex on legal documents; hormone therapy; and possibly (though not always) one or more forms of surgery.

4. INTRODUCTION • Terms • Gender Identity Disorder: Until December 2012, the DSM contained the diagnosis of gender identity disorder – “a strong, persistent cross-gender identification . . . [and] a repeatedly stated desire to be, or insistence that he or she is, the other sex.” Now the term has been replaced in the DSM-V by the term Gender Dysphoria.

5. INTRODUCTION • Terms • Gender Dysphoria: According to the American Psychiatric Association, gender dysphoria is a “marked difference between the individual’s expressed/experienced gender and the gender others would assign him or her, and [that continues] for at least six months.

6. INTRODUCTION Some Employment Data on Transgender People “More than one in four transgender adults have lost at least one job due to bias, and more than three-fourths have experienced some form of workplace discrimination. Biased refusal to hire, privacy violations, harassment, and even physical and sexual violence on the job are common occurrences, and experienced at even higher rates by transgender people of color. Many report changing jobs to avoid discrimination or the risk of discrimination . . . Unemployment is twice the rate of the general population.” National Center for Transgender Equality.

7. INTRODUCTION • Legal Overview • Everyone has a gender identity, which is usually consistent with their birth sex. • As a result of societal expectations about how one should express one’s self as a man or woman, people who perceive their gender to be different from their birth sex can face ridicule and harassment and unfair treatment.

8. INTRODUCTION • Legal Overview • Sometimes this antipathy toward transgender individuals results in discrimination in the workplace, or in hiring decisions.

9. INTRODUCTION • Legal Overview • No federal law expressly prohibits employment discrimination on the basis of transgender status.

10. INTRODUCTION • Legal Overview • Until fairly recently, federal courts had uniformly held that “transsexuals” were not protected under Title VII’s prohibition of sex discrimination, because Congress did not intend the term “sex” to include transsexualism. • Americans with Disabilities Act specifically states that its anti-discrimination protections exclude “gender identity disorders not resulting from physical impairments.” 

11. INTRODUCTION • Legal Overview • BUT the emerging trend in judicial decisions: • Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on sex, also bars intentional discrimination against an applicant or employee based on gender identity, change of sex, and/or transgender status.

12. INTRODUCTION • Legal Overview • Sixteen states and the District of Columbia, and more than 100 localities across the United States have laws that expressly prohibit employment discrimination based on gender identity and expression. • In February 26, 2013, by a vote of 5 to 3, the Phoenix City Council voted to ban discrimination in employment on the basis of sexual orientation, gender identity or expression, and disability.

13. INTRODUCTION • Legal Trends • In April of 2012, the EEOC ruled in Mia Macy v. Holder that discrimination against transgender employees is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964.   “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.”

14. INTRODUCTION • Legal Trends • The previous month, the U.S. Supreme Court denied certiorari in Fields v. Smith: • allowed to stand a Seventh Circuit decision that transgender hormone therapy can be a medically necessary procedure. • Upheld an injunction against enforcement of Wisconsin statute that prohibited the Wisconsin DOC from providing transgender inmates with certain medical treatments, including hormone therapy and sex reassignment surgery.  

15. THE EEOC’s MIA MACY RULING • Facts • Mia Macy is a transgender woman who had been employed as a police detective in Phoenix, Arizona. • known as Charles DeMasi and “presented” as male. • Macy’s PPD supervisor learned that (then) he intended to relocate to the San Francisco area, the supervisor told him that the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) lab had a Bay Area vacancy for which he was uniquely qualified by virtue of his military experience and ballistics expertise with the ATF’s system.

16. Mia Macy Case • Still presenting as a man, Macy talked to the ATF lab director twice by telephone, who reportedly told him that he would have the position, assuming no problems arose during the background check. • The contractor (Austin), who would be Macy’s actual employer, then contacted Macy to begin the necessary paperwork and an investigator from ATF was assigned to do the background check.

17. THE EEOC’s MIA MACY RULING • Several months later, Macy advised the contractor that he was transitioning from male to female and asked that the lab director also be informed of this fact. • On April 3, 2011, the contractor confirmed that it had advised the ATF. • On April 5, 2011, ATF Walnut Creek Lab Director Donna Read decided to stop processing Macy’s application. • On April 8, 2011, Macy received an email from the contractor’s Director of Operations stating that, due to federal budget reductions, the position was no longer available.

18. THE EEOC’s MIA MACY RULING • Macy contacted the EEOC. • She learned that the position had not been cut but that someone else had actually been hired for the job. • Macy then filed an EEOC complaint alleging that she had been discriminated against, based on sex, typing on the form “gender identity” and “sex stereotyping” as the basis of her complaint.

19. THE EEOC’s MIA MACY RULING • Getting the EEOC to Take the Complaint • The EEOC accepted the complaint “on the basis of sex (female) and gender identity stereotyping,” • BUT said that it would process only her claim “based on sex (female)” under Title VII, while the “gender identity stereotyping” claim would be processed under the DOJ policy, which provided less redress. • Macy appealed, arguing that EEOC had jurisdiction over her entire claim and that reclassifying her claim of discrimination into two separate claims of discrimination was a “de facto dismissal” of her Title VII claim of discrimination based on gender identity and transgender status.

20. THE EEOC’s MIA MACY RULING • The April 20, 2012 Ruling • On April 20, 2012, the EEOC ruled that the agency had incorrectly separated Macy’s complaint into two claims. • Title VII’s prohibitions on sex discrimination “sweep far broader than [discrimination on the basis of biological sex], in part because the term ‘gender’ encompasses not only a person’s biological sex but also the cultural and social aspects associated with masculinity and femininity.” • “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.”

21. THE EEOC’s MIA MACY RULING • The April 20, 2012 Ruling • In arriving at this decision, the EEOC analogized discrimination based on gender identity with religious discrimination: “[G]ender is no different from religion. Assume that an employee considers herself Christian and identifies as such. But assume that an employer finds out that the employee’s parents are Muslim, believes that the employee should therefore be Muslim, and terminates the employee on that basis. No one would doubt that such an employer discriminated on the basis of religion. There would be no need for the employee who experienced the adverse employment action to demonstrate that the employer acted on the basis of some religious stereotype - although, clearly, discomfort with the choice made by the employee with regard to religion would presumably be at the root of the employer’s actions. But for purposes of establishing a prima facie case that Title VII has been violated, the employee simply must demonstrate that the employer impermissibly used religion in making its employment decision . . . “

22. THE EEOC’s MIA MACY RULING • The April 20, 2012 Ruling The EEOC then remanded the matter to ATF for further processing.

23. POST-EEOCTHE DOJ RULING • About a year later, the Justice Department’s Complaint Adjudication Office (CAO) issued a decision on July 8 holding that ATF violated Title VII in 2011 when it denied Macy a position. • CAO applied the EEOC’s earlier decision in the case that discrimination because of an individual’s gender identity is sex discrimination that violates Title VII.

24. POST-EEOCTHE DOJ FINDING • ATF staff and the contractor’s staff all testified that Macy’s gender identity and transition from male to female had nothing to do with the decision. • The investigators concluded otherwise based on inconsistencies in the stories they were told, the suspicious timing of the decision to stop processing Macy’s application, and Macy’s superior credentials compared to the other candidate who was hired. • CAO did not find ATF’S assertions about training issues plausible. • Internal communications immediately after Ms. Read learned of Macy’s gender transition reflected an abrupt change in direction of the hiring process without any “credible non-discriminatory explanation.”

25. POST-EEOCTHE DOJ FINDING • CAO found that the lack of clarity in the law as to the treatment of discrimination based on gender identity was no excuse. • NOR was their surprise: “It may have been that ATF officials were taken aback by the sudden and clearly unexpected announcement that the applicant they knew as Charles DeMasi was now Mia Macy. That does not, however, in any way condone or excuse the actions taken here, which are now a violation of Title VII.”

26. POST-EEOCTHE DOJ FINDING • Focusing on the reason why Macy was denied the position, the CAO found that the record supported her claim of discrimination: “The record established that the ATF intended and began taking steps to hire complainant for the position – until she disclosed that she was transitioning from a man to a woman. The ATF stopped complainant’s hiring process when it learned that complainant, formerly Charles DeMasi, would become Mia Macy. In light of the EEOC’s decision in this case to hold that actions based on transgender status are actions based on sex and therefore covered by Title VII, the ATF’s actions were discrimination based on sex and therefore prohibited by Title VII.”

27. POST-EEOCTHE DOJ FINDING • The Opinion pointed out how close the facts of this case were to those in Schroer v. Billington, 577 F.Supp.2d 293 (D.D.C. 2008). • Qualified applicant for a technical research position at the Library of Congress, who had been offered the position, was suddenly deemed to be an unacceptable candidate after having revealed her plan to transition. • District Court ruled that the Library of Congress violated Title VII’s ban on sex discrimination by rescinding its job offer.

28. POST-EEOCTHE DOJ FINDING • CAO ordered ATF to offer Macy the position she was seeking, giving her fifteen days to respond to any such offer, with back pay and other benefits back to the date she would have started employment in the absence of the discriminatory termination of her hiring process. • CAO also ordered ATF to “take appropriate corrective action to prevent any discrimination from occurring” at the Walnut Creek lab. • Macy was also entitled to compensatory damages “if she can demonstrate that she suffered injuries as a direct result of the discrimination found to have occurred,” including compensation for emotional distress if any can be documented.

29. PRE-MIA MACY CASELAW • Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) • Ann Hopkins, a senior manager for Price Waterhouse. • Proposed partnership was held over. Of the 88 people proposed for partnership that year, Hopkins was the only woman. Of those, 47 were accepted, 21 were rejected, and 20 were held over. • Firm partners were invited to submit written comments on candidates, and Hopkins was no exception. • Most comments were supportive of her partnership, BUT others objected to her harsh treatment of staff and her “macho” behavior, while other commenters suggested Hopkins take “a course at charm school” and took offense “because it’s a lady using foul language.” • Ultimately, the partner who advised Hopkins of the decision to hold her candidacy suggested she would have a better chance of making partner the next year if she would “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”

30. PRE-MIA MACY CASELAW • Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) • Holding: • “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group” • “when a plaintiff in a Title VII case proves that her gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff's gender into account.”

31. PRE-MIA MACY CASELAW • Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) • Side Note: Following this decision, Congress codified the Price Waterhouse mixed-motive analysis, with some modifications. Under the modified law, “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” But if an employer could demonstrate that it “would have taken the same action in the absence of the impermissible motivating factor,” then it may limit the plaintiff's damages to injunctive relief, declaratory relief, and attorney's fees and costs. • In a 2003 decision, the US Supreme Court expressly rejected the “direct evidence” requirement in Title VII mixed-motive cases holding that, in order to qualify for a mixed-motive instruction, “a plaintiff need only present sufficient evidence [either direct or circumstantial] for a reasonable jury to conclude, by a preponderance of the evidence, that ‘race, color, religion, sex, or national origin was a motivating factor for any employment practice.’”

32. PRE-MIA MACY CASELAW • Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) • Facts: Douglas (Crystal) Schwenk was a pre-operative male-to-female transsexual, incarcerated in an all-male prison. Schwenk, who had “shoulder- length hair, [was] extremely soft-spoken and feminine, cries easily, and uses make-up and other female grooming products when possible,” had advised one of the guards that she was transsexual, after which time the guard reportedly began sexually harassing and making sexual advances towards Schwenk. Ultimately, Schwenk filed a complaint alleging that Mitchell had attempted rape. One element of Schwenk’s claim was violation of the federal Gender Motivated Violence Act (“GMVA”), part of the Violence Against Women Act. Mitchell defended that a sexual attack by one man against another could not be “gender-motivated” under that law.

33. PRE-MIA MACY CASELAW • Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) • Holding: The court ruled that “the perpetrator’s actions stem from the fact that he believed that the victim was a man who ‘failed to act like’ one . . . discrimination because one fails to act in the way expected of a man or woman is forbidden under Title VII” and, therefore, also under the GMVA, which tracked Title VII.

34. PRE-MIA MACY CASELAW • Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) • Facts: Jimmy Smith was a seven year veteran of the Salem, Ohio fire department. After he was diagnosed with Gender Identity Disorder (GID), he began to display a more traditionally feminine appearance on a regular basis, including at work. His co-workers began questioning him about his appearance and commenting that his appearance and mannerisms were not “masculine enough.” Not long after, he notified his immediate supervisor of his diagnosis and plans to fully transition from male to female. The supervisor reported this plan to transition to his supervisor, who then reported it to the fire chief.

35. PRE-MIA MACY CASELAW • Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) • Following that report, the fire chief met with the City’s legal director, with the intent of terminating Smith’s employment. The two organized a meeting with the City’s directors, including the mayor, and decided to have Smith undergo a series of psychological evaluations, in hopes that Smith would resign or refuse to comply. One of the city officers present tipped off Smith, who obtained legal counsel and a right to sue letter from the EEOC. After that, the fire chief suspended Smith for a 24 hour period over an alleged infraction of a yet-to-be-enacted department rule. When Smith sued, the lower court ruled that he had not stated a Title VII claim because he failed to state a claim of sex stereotyping and Title VII protection was unavailable to transsexuals.

36. PRE-MIA MACY CASELAW • Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) • Holding: The Sixth Circuit disagreed with the lower court and noted that the Supreme Court had clearly established that sex discrimination included discrimination based on gender. Therefore, a man who displays more feminine characteristics should not be barred from bringing a claim for failure to conform to stereotypes, because of the label “transsexual,” where a woman who acted in a more stereotypically masculine fashion would not be barred from bringing a claim for discrimination.

37. PRE-MIA MACY CASELAW • Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) • Glenn Morrison was diagnosed with gender identity disorder in the same year he was hired to be an editor for Georgia General Assembly’s Office of Legislative Counsel (OLC). • During this time, Morrison began steps to transition from male to female, which included presenting as a female outside of work. • Morrison revealed to his immediate supervisor his intention to transition fully from male to female.

38. PRE-MIA MACY CASELAW • Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) • That Halloween, when OLC employees were allowed to come to work wearing costumes, Glenn came to work presenting as a woman. The department head, and later defendant, Brumby told Glenn to leave the office and calling her appearance inappropriate “[b]ecause he was a man dressed as a woman and made up as a woman.” Brumby also said “it’s unsettling to think of someone dressed in women's clothing with male sexual organs inside that clothing,” and that a male in women's clothing is “unnatural.” • Soon after, Glenn’s immediate supervisor shared with Brumby Glenn’s intent to transition to female, present as a woman at work, and legally change his name. Brumby then fired Glenn because “Glenn’s intended gender transition was inappropriate, it would be disruptive, some people would view it as a moral issue, and it would make Glenn's coworkers uncomfortable.”

39. PRE-MIA MACY CASELAW • Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) • Lower court granted summary judgment to Glenn on her sex discrimination claim, and granted summary judgment to Brumby on Glenn’s medical discrimination claim. • Eleventh Circuit said that the very fact that a person is identified as transgendered means that the individual defies gender stereotypes. Therefore, discriminating against someone because of his or her transgendered status is a form of discrimination based on gender and thus is sex discrimination.

40. PRE-MIA MACY CASELAW • Cruzan v. Special Sch. Dist. # 1, 294 F.3d 981 (8th Cir. 2002) • Carla Cruzan was a Minnesota teacher who sued her school district employer claiming that it discriminated against her on the basis of her sex and her religion by allowing a transgendered coworker to use the women’s faculty restroom. • She filed the a claim with the state’s Department of Human Rights after she entered the campus’s women’s faculty restroom and saw the transgendered coworker exiting a privacy stall. Cruzan immediately left the restroom, found her principal in the student-filled hallway, and complained about encountering the other teacher in the restroom. The principal asked Cruzan to either wait in his office or to make an appointment to discuss the matter. Cruzan did not do so, and never approached the principal about her concerns again.

41. PRE-MIA MACY CASELAW • Cruzan v. Special Sch. Dist. # 1, 294 F.3d 981 (8th Cir. 2002) • Holding: In affirming the lower court’s summary judgment ruling in favor of the district, the Eighth Circuit noted that other, convenient bathrooms were available to Cruzan and held that her transgendered coworker’s use of the female staff restroom had no effect on Cruzan’s title, salary, or benefits and so did not rise to the level of an actionable adverse employment action. Likewise, the coworker’s restroom use did not create a hostile work environment for purposes of a Title VII sexual harassment claim.

42. PRE-MIA MACY CASELAW • Sturchio v. Ridge, 2005 WL 1502899 (E.D. Wash. 2005) • Facts: Ronald Sturchio worked for the U.S. Border Patrol. Ultimately, he transitioned surgically and psychologically from male to female. • Sturchio maintained the improbable story that he “identified with female activities and traits” as the result of an undocumented chemical spill. He claimed to have helped an injured driver following and was thereby exposed to a solution intended for cows, which included the hormones estrogen and progesterone.

43. PRE-MIA MACY CASELAW • Sturchio v. Ridge, 2005 WL 1502899 (E.D. Wash. 2005) • Facts (cont’d): On the job, Sturchio repeatedly initiated conversations about his feminine appearance and the chemical spill story with coworkers, to their discomfort. Some co-workers complained about these conversations, feeling that Sturchio was overly familiar. While publicly maintaining the chemical spill story, Sturchio had secretly progressed in his acceptance of his transgender status and had begun taking female hormones.

44. PRE-MIA MACY CASELAW • Sturchio v. Ridge, 2005 WL 1502899 (E.D. Wash. 2005) • Facts (cont’d): At work, however, he continued to dress as a man, wore large shirts, and generally tried to hide newly developing breasts from coworkers, without success. Then, with no prior notice and without providing any information about his status to his employer, Sturchio simply reported to work one day as a woman. Nevertheless, the agency obliged “Ronald’s” request to begin referring to her as “Tracy” and advised colleagues to refer to Tracy as a woman.

45. PRE-MIA MACY CASELAW • Sturchio v. Ridge, 2005 WL 1502899 (E.D. Wash. 2005) • Facts (cont’d): After a union official began questioning employees about Sturchio’s appearance and whether sexual advances were made by him, Sturchio brought claims for hostile work environment under Title VII, retaliation and sex discrimination. Also, a business card saying “You are cordially invited to go fuck yourself” was handed out by one of the employees Sturchio supervised.

46. PRE-MIA MACY CASELAW • Sturchio v. Ridge, 2005 WL 1502899 (E.D. Wash. 2005) • Holding: The court agreed that transgendered individuals are protected by Title VII, but ruled in favor of the employer writing that Title VII requires more than a difficult workplace environment. • Court: Given Sturchio’s discussions with colleagues about his breasts and the alleged chemical accident, and that some employees expressed discomfort about it, it was not clear that a union official would be acting improperly by inquiring about the subject. Also, there were only two instances of such questioning, which happened years apart. The court said that the business card incident was isolated and not severe in nature.

47. PRE-MIA MACY CASELAW • Sturchio v. Ridge, 2005 WL 1502899 (E.D. Wash. 2005) • Holding (cont’d): As for Sturchio’s sex discrimination claim, the court found nothing to show that anyone in management had discriminatory animus toward Sturchio on account of her appearance. • Employer prohibited Sturchio from wearing a dress to work, but the court found that a biological woman would also have been denied the option of wearing a dress for job safety reasons. • And though Sturchio was also prohibited from using the women’s restroom when a unisex bathroom was unavailable, employer had no legal obligation to permit such use under these facts. The court noted, however, that in the future the law may mandate that an employer has to comply with bathroom use/medical care directions for employees undergoing a gender change.

48. PRE-MIA MACY CASELAW • Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007) • Facts: Krystal Etsitty was a “pre-operative transgendered individual” who was hired to be a bus driver with the Utah Transit Authority (UTA) about four years after beginning hormone replacement therapy. Despite the years-long hormone treatment, Etsitty presented herself as a man and used male restrooms during her training. Soon after being hired, however, she met with her supervisor, informed him that she was a transsexual, explained that she would begin to appear more as a female at work and would eventually change her sex. Soon afterward, Etsitty began wearing makeup, jewelry, and acrylic nails to work. She also began using female restrooms while on her routes (all drivers had to use public restrooms while on the job).

49. PRE-MIA MACY CASELAW • Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007) • Facts (cont’d): An operations manager heard about Etsitty and arranged a meeting to ask her where she was in the sex change process and whether she still had male genitalia. • Since Etsitty still had male genitalia, the supervisor expressed concern about possible liability for UTA if a UTA employee with male genitalia was observed using the female restroom. • Etsitty was placed on administrative leave and ultimately terminated from her employment.

50. PRE-MIA MACY CASELAW • Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007) • Facts (cont’d): According to the supervisor, Etsitty was terminated due to the possibility of liability for UTA arising from Etsitty’s use of public women’s restrooms. • Etsitty sued, claiming she was terminated because she was a transsexual and failed to conform to UTA’s expectations of stereotypical male behavior. • Argued that her use of women’s restrooms is an inherent part of her status as a transsexual and so an inherent part of her non-conforming gender behavior.