This document summarizes recent developments in sex discrimination and harassment law regarding protections for sexual orientation and gender identity. It defines key terms and outlines how courts have increasingly interpreted "sex discrimination" under Title VII broadly to include discrimination based on failing to conform to stereotypical gender expectations as well as discrimination against transgender individuals. It also discusses how the EEOC and some states and localities now explicitly prohibit employment discrimination based on sexual orientation and gender identity.

1. 24th Annual Parsons Behle & Latimer Employment Law Seminar
RECENT DEVELOPMENTS IN THE LAW
ON SEX DISCRIMINATION & HARASSMENT:
NEW RISKS ON SEXUAL ORIENTATION & IDENTITY
W. Mark Gavre
May 8, 2012
Salt Lake City

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
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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
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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.
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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
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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
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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
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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
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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
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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
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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”
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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…
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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”
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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
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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?
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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”
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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
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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
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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
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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”
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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
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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”
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