Employment Discrimination and Sexual Orientation - New Developments


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Employment Discrimination and Sexual Orientation - New Developments

  2. 2. Introduction  Bans against anti-gay employment discrimination growing rapidly  Biggest change in discrimination law in decades  ―Sex discrimination‖ construed broadly to protect gay, lesbian and transgender employees and applicants 2
  3. 3. Definitions  ―Sexual orientation‖ refers to a person‘s physical and/or emotional attraction to the same and/or opposite gender  ―Gender identity‖ refers to a person‘s psychological identification as male or female, which may or may not correspond to the person‘s sex at birth 3
  4. 4. Definitions (cont.)  ―Gender expression‖ refers to the external characteristics and behaviors that are socially defined as either masculine or feminine, such as dress, grooming, mannerisms, speech patterns, etc. 4
  5. 5. Definitions (cont.)  ―Transgender‖ is an umbrella term referring to persons who express their gender differently from what most people expect, such as not matching their designated sex at birth, including people who are transsexual, cross-dressers, or otherwise gender non-conforming 5
  6. 6. Definitions (cont.)  ―Transsexual‖ refers to a person who has changed or is in the process of changing his or her physical and/or legal sex to conform to his or her internal sense of gender identity 6
  7. 7. Definitions (cont.)  ―Gender transition‖ refers the process by which a person modifies his or her physical characteristics and/or manner of gender expression to conform to his or her gender identity  This may include hormone therapy or sexreassignment surgery 7
  8. 8. Company Policies  Most large, ―Fortune 500‖ companies have policies banning discrimination based on sexual orientation and gender identity  Increasingly, smaller companies are adopting such policies 8
  9. 9. State Laws  21 states and Washington D.C. prohibit discrimination based on sexual orientation or gender identity: CA, CO, CT, DE, D.C., HI, IL, IA, MA, MD, ME, MN, NH, NJ, NM, NY, NV, OR, RI, VT, WA, WI 9
  10. 10. Utah Local Ordinances  15 Utah cities, towns, and counties have ordinances banning anti-gay bias in employment: Springdale, Park City, Alta, Logan, West Valley City, Murray, Taylorsville, Moab, Midvale, Ogden, Harrisville, Salt Lake City, Salt Lake County, Summit County, and Grand County 10
  11. 11. Salt Lake City Ordinance  ―An employer may not refuse to hire, promote, discharge, demote or terminate any person, and may not retaliate against, harass or discriminate…because of a person‘s sexual orientation or gender identity‖ 11
  12. 12. Title VII Unchanged  ―It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual…because of such individual‘s…sex…‖  Yet the law is changing… 12
  13. 13. Sexual Stereotyping  In Price Waterhouse v. Hopkins (1989) the U.S. Supreme Court held that treating a female employee differently because she did not conform to a gender stereotype was sex discrimination  Hopkins was too ―macho‖ and ―overcompensated for being a woman‖ 13
  14. 14. Price Waterhouse (cont.)  She was told to ―walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry‖  Adverse treatment for not conforming to gender-based expectations--―a woman cannot be aggressive‖--violates Title VII 14
  15. 15. Male Stereotyping  In Doe v. City of Belleville (1997), two teenage boys were harassed by male coworkers for wearing earrings. No women in the workplace  Was it sexual harassment? Judge: Would the teenagers have been harassed for wearing earrings if they were girls? 15
  16. 16. Belleville (cont.) ―A man who is harassed because his voice is soft, his physique is slight, his hair is long, or because in some other respect he…does not meet his coworkers‘ idea of how men are to appear and behave is harassed because of his sex‖ 16
  17. 17. Transgender Discrimination  In Glenn v. Brumby (2011), discrimination against employee who was changing his gender held to be sex discrimination  Glenn born male, identified as female  Glenn hired as male in 2005  In 2006 Glenn began to transition to female 17
  18. 18. Glenn (cont.)  Supervisor: ―It‘s unsettling to think of someone dressed in women‘s clothing with male sexual organs inside that clothing‖ It‘s ―unnatural‖  Supervisor fired Glenn because ―Glenn‘s intended gender transition was inappropriate, that it would be disruptive, that some people would 18
  19. 19. Glenn (cont.) view it as a moral issue, and that it would make Glenn‘s co-workers uncomfortable‖  Court: ―A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. The very acts that define transgender people as transgender are those that contradict 19
  20. 20. Glenn (cont.) stereotypes of gender-appropriate appearance and behavior…Accordingly, discrimination against a transgender individual because of her gender nonconformity is sex discrimination…All persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype‖ 20
  21. 21. EEOC’s New Position  On April 20, 2012, the EEOC issued a decision in Macy v. Holder that transgender discrimination is sex discrimination as a matter of law  Macy, former Phoenix police detective, applied for job at ATF and was told he had the job 21
  22. 22. EEOC on Transgender Discrimination (cont.)  Macy told ATF that she was changing from male to female  ATF: job no longer available  EEOC: ―Intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‗based on…sex‘ and such discrimination violates Title VII‖ 22
  23. 23. Hunter v. UPS  Hunter, born female, transitioning to male  In 2008 applied for part-time job, using 2006 application with birth name ―Jessica‖  Hunter presented as male but not yet begun hormone therapy  Hunter used binder to hide his breasts, wore men‘s shirt, pants and shoes and cut his hair short 23
  24. 24. Hunter (cont.)  Hunter denied job, given two reasons: – UPS not hiring (false) – Poor job history (others hired with similar history)  Hunter claims discrimination based on gender identity or sexual orientation  Court: no evidence that UPS was aware of Hunter being transgendered or gender non-conforming 24
  25. 25. Hunter (cont.)  Court: ―The employee must show that the employer was sufficiently aware of the employee‘s status to have been capable of discriminating based on it….Many fashion trends have called for women to wear short haircuts, men‘s clothes, or men‘s shoes. To hang a rule of law on fashions that may change with the times would create an unworkable rule.‖ 25
  26. 26. EEOC v. Boh Brothers Const.  Kerry Woods worked as construction worker on all male crew  Court: supervisor was ―a world-class trash talker and the master of vulgarity‖  Woods was ―the primary and constant victim of [supervisor‘s] offensive abuse and harassment‖ 26
  27. 27. EEOC (cont.)  Supervisor called Woods: – ―faggot‖ and ―princess‖  Supervisor simulated anal sex behind Woods  Woods sued for sexual harassment  Jury awarded Woods $200,000 in compensatory damages and $250,000 in punitive damages 27
  28. 28. EEOC (cont.)  Fifth Circuit Court of Appeals reversed: – No evidence of homosexual attraction or hostility – No evidence of Woods not conforming to male stereotype—despite supervisor‘s words – Supervisor testified he ―did not view Woods as feminine‖ – Therefore no harassment based on gender stereotyping or non-conformity 28
  29. 29. Thank you  W. Mark Gavre direct: (801) 536-6834 email: mgavre@parsonsbehle.com 29