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LAW 598 - HR & Employment Law W7C2


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Week 7 - Lecture C2

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LAW 598 - HR & Employment Law W7C2

  1. 1. Emerging Issues in Protections for LGBT Employees July 20, 2015 Presented By: Jeff Brodin, Brodin HR Law Mary Jo O’Neill, U.S. EEOC Regional Attorney, Phoenix Office
  2. 2. Gender Identity An individual’s internal sense of their gender, whether or not it is different from the individual’s assigned sex at birth Transgender Individuals with a gender identity that is different from the sex assigned to them at birth Gender Transition The process by which a transgender person goes from living and working as one gender to another
  3. 3. Gender Expression means the manner in which an individual’s gender identity is expressed, including, but not limited to, through dress, appearance, manner, or speech, whether or not that expression is different from that traditionally associated with the individual’s assigned sex at birth.
  4. 4. Why Does This Matter to Employers? 7 million LGBT employees in the U.S. private sector workforce Surveys say 48% of LGBT employees are “closeted” at work Harvard Business Review Study shows “out” employees are more likely to be promoted Employees who are not “out” spend time and energy concealing their sexual orientation, which results in decreased productivity
  6. 6. LGBT Employees in the Federal Government According to the Office of Personnel Management, the Federal Government has approximately 2.6 million civilian employees in the Executive Branch. Approximately 200,000 LGBT individuals work in the Federal Government. − Williams Institute, “Bias in the Workplace: Consistent Evidence of Sexual Orientation and Gender Identity Discrimination” (2007)
  7. 7. Employment Discrimination Against LGBT Employees 42% of LGB individuals report experiencing employment discrimination. Brad Sears & Christy Mallory, The Williams Institute, Documented Evidence of Employment Discrimination & Its Effects on LGBT People (2011)
  8. 8. Employment Discrimination Against Transgender Individuals 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. − National Gay and Lesbian Task Force and National Center for Transgender Equality, “Injustice at Every Turn: A Report of the National Transgender Discrimination Survey” (2011)
  9. 9. Employment Discrimination Against Gay Men Data from the National Health and Social Life Survey, the General Social Survey, the United States Census, and the National Health and Nutrition Examination Survey show that gay men earn 10% to 32% less than otherwise similarly qualified heterosexual men. − Williams Institute, “Bias in the Workplace: Consistent Evidence of Sexual Orientation and Gender Identity Discrimination” (2007)
  11. 11. The Religious Exemption for Sexual Orientation Discrimination • Many state jurisdictions provide an exemption for religious employers from the requirement of sexual orientation non-discrimination. • Applies to a bona fide church or other religious institution. • Exemption generally applies where an employment position is directly related to the operation of the religious institution and closely connected with the primary purposes of the religious institution.
  12. 12. Reasonable Accommodation for Gender Identity • Many state jurisdictions provide for reasonable accommodation for transgender employees. • Some states provide a dress code or policy exception, and refer to reasonable accommodation based on the “health and safety needs of the individual.” • Most accommodation issues are likely to relate to dress code or transition to use of the “opposite sex” restroom. • By analogy, “interactive process” and “undue hardship” standards are likely to apply.
  13. 13. Local Arizona Protections  Phoenix • February 2013 Ordinance • “Bathroom Bill” • State employees benefits intact  Tucson • 1999 Ordinance • Civil unions  Flagstaff • March 2013 Ordinance  Tempe • Civil Unions  Policy updates & training
  14. 14. Title VII of the Civil Rights Act of 1964 • 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.
  15. 15. 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. – Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) – Oncale v. Sundown Offshore Oil Services, 523 U.S. 75 (1998)
  16. 16. Ann Hopkins
  17. 17. Price Waterhouse – In Price Waterhouse, the Supreme Court found that Title VII prohibits sex-stereotyping on the basis of gender non-conformity. • “[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for "'[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.'" Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (quoting Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 707, n. 13 (1978)).
  18. 18. Oncale v. Sundowner Offshoreservices, Inc. USSC 1998 – In Oncale, the Court held that Title VII prohibits same-sex sexual harassment. • “[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 ‘discrimination . . . 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.” Oncale v. Sundown Offshore Servs., 523 U.S. 75, 79-80 (1998).
  19. 19. Emerging and Developing Issues: LGBT Coverage • So Title VII does not contain an explicit prohibition of discrimination on the basis of sexual orientation or transgender status. • BUT employees can still bring a claim under Title VII by arguing that they were the victims of sex-stereotyping and/or discrimination “on the basis of sex” or “because of sex.”
  20. 20. Post Price Waterhouse and Oncale: Some 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). •Prowel v. Wise Business Forms (3d Cir. 2009) (gender stereotyping of gay male machine operator).
  21. 21. EEOC Accomplishments: LGBT • So What Has the Commission Been Doing? – Intake/Investigations/ Conciliations – Intergovernmental Partnering – Internal Training/External Outreach – Federal Sector Decisions – Public Conciliations – Litigation (Including Amicus Curiae Briefs)
  22. 22. What Can Be Done? • Employees and applicants have the right to file charges of discrimination against employers, employment agencies and unions based on sexual orientation or gender identity under Title VII. • Employer must have 15 or more employees and Charge has to be filed within 300 days of the last act of discrimination. • See Intake Questionnaire. • See Charge Form. • Employer gets a copy of the Charge within 10 days. • Mediation is an option. • Investigation. • Litigation by Individual or the EEOC or DOJ.
  23. 23. EEOC Accomplishments: LGBT – Federal Sector Decisions • Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (April 20, 2012) (holding that intentional discrimination against transgender individual because that person is transgender is, by definition, discrimination based on sex and therefore violates Title VII) • Jameson v. U.S. Postal Service, EEOC Appeal No. 0120130992, 2013 WL 2368729 (May 21, 2013) (intentional misuse of employee’s new name and pronoun may cause harm to transitioning employee and constitute sex-based discrimination and/or harassment) • ____ v. Foxx – EEOC finds in July 2015 that sexual orientation discrimination in the federal sector violates Title VII.
  24. 24. LGBTQ Mia Macy, a police detective in Phoenix, applies for a job at a crime lab with ATF in San Francisco while she is a man. She is given a conditional offer pending a background check. She informs them that she was in the process of transitioning from male to female. Five days later, she is informed the position will not be filled. Macy alleges violation of Title VII in discriminating against her on the basis of “gender identity” and “sex stereotyping.” She wins on appeal. Macy v. Dept. of Justice.
  25. 25. Lusardi v. McHugh EEOC Appeal (April 12, 2015) • In a landmark ruling issued on April 1, 2015, the Equal Employment Opportunity Commission (EEOC) determined that some of the most common forms of harassment faced by transgender employees constitute unlawful discrimination under Title VII, the federal sex discrimination law. The decision found that the Department of the Army discriminated against Tamara Lusardi, a transgender employee who transitioned from male to female on the job, by barring her from using the same restroom as all other female employees, and by her supervisors’ continued intentional use of male names and pronouns in referring to Ms. Lusardi after her transition.