U.S. Supreme Court
U.S. Supreme Court

Over the last week or so, there have been two prominent Circuit Court decisions addressing whether Title VII (the federal law prohibiting employment discrimination on the basis of race, color, sex, religion and national origin) can be interpreted to also protect employees from being discriminated against because of their sexual orientation.

The Second Circuit, which covers Connecticut, basically said no in a decision last week in Christiansen v. Omnicom Group.  The court did open the door a bit to a claim that an employee was discriminated against because of sex stereotyping.

Yesterday, the Seventh Circuit created the first split at the appellate level, finding that Title VII does cover such claims in the Hivley v. Ivy Tech Community College case.   Jon Hyman, of the Ohio Employer’s Law Blog, does a good job addressing the historic nature of the case here.

Back in 2016, I wrote that it was somewhat disappointing that we were still having these battles at the federal level, considering that Connecticut already had state laws prohibiting discrimination on the basis of sexual orientation.  “Those who are gay, lesbian, bisexual or transgender frankly deserve better, in my view. They deserve their own federal law giving them the workplace protections that Connecticut has given.  Until then, the battles over the scope of Title VII will continue.”

Indeed, the battles are now going to get bigger. One or more of these cases are now likely to get heard at the U.S. Supreme Court level where it is far from certain whether Title VII can really be read so broadly.

Of course, Congress could end these debates once and for all by passing a bill prohibiting employment discrimination on the basis of sexual orientation as I discussed way back in 2008.

But unfortunately, we seem to be no closer to passage of a bill than we were a decade ago.

Connecticut employers should largely ignore the press reports about Title VII and instead focus on their obligations to comply with state law.  Eventually the federal courts will work these issues out, but the issue is mainly moot in Connecticut.

seminarI still remain amazed at the sold-out crowd we had at last week’s Labor & Employment Law seminar.  Well over 250 people registered for the program and I kind of wanted to whisper to people: “You know this is just a LEGAL seminar, right?”

But no matter. Employment law issues are as popular as ever and we had great feedback from the crowd.

One of the topics we handled was one suggested by several attendees at last year’s seminar: Transgender Issues in the Workplace.  I’ve talked about this before in some prior posts here and here.

Perhaps not surprisingly, one of the areas we covered was restroom access.  This seems to be one area that employers continue to grapple with. Indeed, as I noted last year in a post on the topic, the issue “that seems to get the most press is restroom access.”

Just a day after our seminar, the U.S. Supreme Court accepted a case on this very topic — meaning we are likely to get some court guidance at last.  Although the case involves student access to bathrooms, many are hoping that the decision provides some clarity to employers on the issue as well.

But as SCOTUSBlog notes, the court is tackling the issue from more of a technical perspective than anything else:

The Supreme Court added five new cases to its docket this afternoon. Among the new grants was Gloucester County School Board v. G.G., the case of a transgender student who identifies as a boy and wants to be allowed to use the boys’ bathroom at his Virginia high school.

Although the controversy over the school board’s policy requiring students to use the restrooms and locker rooms that match the gender that they were assigned at birth instantly became the highest-profile case of the court’s term so far, the dispute actually centers on more technical (and, some would say, rather dry) legal issues. In this case, the district court ruled against G.G., relying on a 1975 regulation that allows schools to provide “separate toilet, locker room, and shower facilities on the basis of sex,” as long as those facilities are comparable to those provided to the opposite sex. But, in January 2015, the Department of Education’s Office of Civil Rights issued an opinion letter stating that, if schools separate students in restrooms and locker rooms on the basis of their sex, a “school generally must treat transgender students consistent with their gender identity.” In light of the 2015 letter, the U.S. Court of Appeals for the 4th Circuit reversed and ruled for G.G. It relied on the Supreme Court’s 1997 decision in Auer v. Robbins, which held that courts generally should defer to an agency’s interpretation of its own regulation.

Still, to see issues of gender identity being heard at the U.S. Supreme Court shows how far this issue has come in a relatively short period of time.

Any decision from the court, however, is likely to have a muted impact in Connecticut. Connecticut already protects against discrimination on the basis of gender identity and expression, in contrast to federal law which isn’t as explicit.

At the seminar, one of my law partners, Kevin Roy, suggested that employers who feel flummoxed by the legal rules, should approach the issue from the perspective of trying to treat employees with “dignity and respect”.  That may be the simplest and easiest way to tackle a still-evolving issue.

restrm1Last fall, I raised the issue of bathroom access for employees that corresponds with their gender identity.

The issue, however, that seems to get the most press is restroom access.

Indeed, we’re now getting federal guidance on how to deal with the issue of restroom access. That remains one of the bigger issues (a proposition up on a Houston ballot turned into an ugly campaign of “No Men in Women’s Bathrooms”) but it doesn’t seem again to translate to claims filed.

What’s happened since then? Well, we’ve seen it become a topic on the presidential campaign trail and in North Carolina.

But we’ve also seen the EEOC say: Wait a minute. Federal law has something to say on this too.

Yesterday, the EEOC went a step further and issued a new fact sheet reminding employers that even a contrary state law isn’t a defense.

In Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (Apr. 12, 2012), the EEOC ruled that discrimination based on transgender status is sex discrimination in violation of Title VII, and in Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015), the EEOC held that:

  • denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination;
  • an employer cannot condition this right on the employee undergoing or providing proof of surgery or any other medical procedure; and,
  • an employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it).

Contrary state law is not a defense under Title VII. 42 U.S.C. § 2000e-7.  In G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., — F.3d –, 2016 WL 1567467 (4th Cir. 2016), the United States Court of Appeals for the Fourth Circuit reached a similar conclusion by deferring to the Department of Education’s position that the prohibition against sex discrimination under Title IX requires educational institutions to give transgender students restroom and locker access consistent with their gender identity.

Gender-based stereotypes, perceptions, or comfort level must not interfere with the ability of any employee to work free from discrimination, including harassment. As the Commission observed in Lusardi:  “[S]upervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment.  Title VII prohibits discrimination based on sex whether motivated by hostility, by a desire to protect people of a certain gender, by gender stereotypes, or by the desire to accommodate other people’s prejudices or discomfort.”

Connecticut is one of the few states that already prohibits discrimination on the basis of gender identity. Thus, the EEOC’s statement should be seen as one in support of the interpretation in Connecticut.

For employers, keep it simple: Let employees use the bathroom that corresponds to the employee’s gender identity.  But it can also mean turning single-occupant bathrooms into gender-neutral ones too.  You can look at the OSHA guidance on this issue for more best practice tips.  If any employee complains, well, that’s not enough of a reason to deny access.

gavelIn an decision of first impression in Connecticut, a federal court on Friday ruled that a transgender discrimination claim based on a failure to hire can proceed under both Title VII and Connecticut’s counterpart, CFEPA.

While the groundbreaking decision in Fabian v. Hospital of Central Connecticut (download here)  is sure to be the subject of discussion, as the court notes, Connecticut has — in the interim — passed a state law explicitly prohibiting discrimination on the basis of gender identity. Thus, for a few years now, Connecticut has already explicitly prohibited transgender discrimination under state law. (The case was based on facts that occurred before passage of the state’s anti-discrimination law.)

But the decision obviously goes further than that and takes up the logic advanced by the EEOC and others of late — namely that Title VII’s prohibition of discrimination “because of…sex” should be read to include transgender discrimination.  The court’s opinion should be mandatory reading not only in the state, but for practitioners nationwide faced with similar claims.

The decision addresses the notion of gender-stereotyping discrimination noting that such discrimination is sex discrimination “per se”.  In the court’s view, the Supreme Court’s decision years ago in Price Waterhouse has led to a “significant shift in the direction of decisions examining alleged discrimination on the basis of transgender identity”.

In doing so, the court notes the split in the circuits that has been developing, even though the Second Circuit hasn’t truly spoken yet on the issue:

In sum, discrimination on the basis of transgender identity is now recognized as discrimination “because of sex” in the Ninth Circuit (as Schwenk recognized the abrogation of Holloway), the Sixth Circuit (as recognized in Smith), and in the Eleventh Circuit (as recognized in Glenn); and the E.E.O.C. (in Macy) and has agreed with that authority.  Discrimination on the basis of transgender identity is regarded as not constituting discrimination “because of sex” in the Tenth Circuit (under Etsitty). The continued vitality the pre–Price Waterhouse decisions in the Seventh and Eighth Circuits (Ulane II & Sommers, respectively)  is unclear.

Judge Underhill, who penned the decision, then goes on to discuss the language of “because of…sex” found in the statute itself.  He notes that:

discrimination on the basis of gender stereotypes, or on the basis of being transgender, or intersex, or sexually indeterminate, constitutes  discrimination on the basis of the properties or characteristics typically manifested in sum as male and female — and that discrimination is literally discrimination “because of sex.”

On the basis of the plain language of the statute, and especially in light of the interpretation of that language evident in Price Waterhouse’s acknowledgement that gender-stereotyping discrimination is discrimination “because of sex,” I conclude that discrimination on the basis of transgender identity is cognizable under Title VII.

For employers in Connecticut, this decision is likely to be closely followed by other federal courts in Connecticut. Judge Underhill is well-regarded and until this decision gets reviewed by the Second Circuit, it’s hard to see how other judges in Connecticut will decline to follow it.

In other words, employers in Connecticut should be alert that a plaintiff may make a gender identity claim under Title VII in Connecticut.

But, as I noted at the top, this decision’s impact in Connecticut may be more muted because Connecticut has now explicitly protected gender identity in the state’s anti-discrimination statutes.

Nevertheless, the decision is an important one to read in the field of gender identity claims.

EEOC efforts a proverbial square peg.
EEOC efforts are a proverbial square peg.

When you’ve been blogging as long as Jon Hyman (of Ohio Employer’s Law Blog) and I have, your minds seem to work in a similar fashion.

For a few days, I’ve been working on a draft of a blog post about the EEOC’s goal of expanding Title VII’s reach to include sexual orientation discrimination claims.  Of course, before I could click “publish”, yesterday Jon published one that says almost the same thing.

In a thorough 27-page amicus brief filed last week, the Agency details why it believes that Title VII already prohibits sexual-orientation discrimination as unlawful sex discrimination.

The brief is not a surprise. Indeed, this was discussed at the ABA Labor & Employment Law Annual Conference last fall in Philadelphia. Nevertheless, the EEOC’s brief is clear about where it is trying to take the law.

Sexual orientation discrimination claims necessarily involve illegal sex stereotyping, illegal gender-based associational discrimination, and impermissible consideration of a plaintiff’s sex, placing them squarely within Title VII’s prohibition against discrimination on the basis of sex.

What IS different though about Ohio and Connecticut is that Connecticut has long since prohibited discrimination on the basis of sexual orientation.  Indeed, in the last fiscal year, 51 employment discrimination complaints on the basis of such a protected class were filed at the CHRO.

The law in Connecticut works well and is an important and vital part of the protections in the state.

And this is where I start to differ with Jon.  For years, I have been asking for the passage of ENDA – a bill that would explicitly ban discrimination the basis of sexual orientation at the federal level.  This would solve the issue clearly and easily.

But because Congress can’t seem to get anything done, that bill hasn’t gone very far.

So instead, the EEOC has been trying to expand the reach of Title VII.  Count me among the people that is a bit skeptical with the efforts.  The oft-used phrase “trying to fit a square peg into a round hole” comes to mind.

Why? Because for many years it was understood that the protections offered by Title VII on the basis of sexual orientation were limited.  Same-sex harassment, as the Oncale case was known, was the best example of where the protections of Title VII cover those who are gay from harassment.  But this means that the EEOC’s efforts are going to be at the whim of the courts.

This is not necessarily new. In fact, back in 2012, the EEOC took the position that Title VII covered sexual orientation discrimination.

Those who are gay, lesbian, bisexual or transgender frankly deserve better, in my view. They deserve their own federal law giving them the workplace protections that Connecticut has given.

Until then, the battles over the scope of Title VII will continue.

 

Last week, I had the pleasure of speaking before the Connecticut Bar Association’s LGBT Section regarding the status of transgender claims along with CHRO Staff Attorney Alix Simonetti.  My thanks to the section for the invitation.  It didn’t hurt that it was held at the Hartford Flavor Company, either.

The talk was mainly informal but it was a lively discussion of some of the critical components of the law over the last few years.

Back in 2011 (seems so long ago, right?), the Connecticut General Assembly passed a wide-ranging bill protecting gender identity and expression.  The impact of the law was debated back then. Would it be significant? Would it lead to an increase in claims?

Well, the answer to the first question is yes, it’s been significant because the issue of transgender discrimination has moved ever more into the mainstream with Caitlyn Jenner making headlines and shows like “Transparent” receiving critical acclaim.  Connecticut looks downright ahead of its time.

But the claims haven’t really appeared.

There have been just 15 or so gender-identity in employment discrimination claims filed with the state agency (CHRO) since the law’s inception.

Why? The reasons can be debated — perhaps fear, lack of awareness, an improving economy? — but the claims represent just a tiny fraction of the 7500+ claims filed over that time.

The issue, however, that seems to get the most press is restroom access.

Indeed, we’re now getting federal guidance on how to deal with the issue of restroom access. That remains one of the bigger issues (a proposition up on a Houston ballot turned into an ugly campaign of “No Men in Women’s Bathrooms”) but it doesn’t seem again to translate to claims filed.

OSHA’s guidance over the summer suggests keeping it simple: Employees should have access to the restroom that corresponds to his or her gender identity. Period. If other employees complain, well, that’s not a good enough reason to deny access to the transgendered employee.

But there are other best practices, such as making single-occupant bathrooms gender-neutral (think family restrooms in stadiums and airports) that are suggested as well.

Some employers may not have had to address the issue yet. But being aware of the issues ahead of time — and figuring out how you will tackle them — is something that should be on the radar for 2016.

oedThe rapid pace of the country’s openness to discuss issues of gender identity (and no, this isn’t going to be an article about Caitlyn Jenner) has actually led to a rise in the use of words to describe situations that you may not have thought of before.

Recently I came across the term “cisgender male” in a document where someone was asked the “gender” question.  Now, if you had heard of the term before, kudos.

But I suspect, based on my discussion with a few colleagues and friends, that there are still many of you that are unfamiliar with the term.  My guess is that you’re going to hear more about it and that it will trickle into HR departments — if it hasn’t already.

“Cisgender” is a term that has recently been approved by the Oxford English Dictionary. The term means “designating a person whose sense of personal identity matches their gender at birth.”  Thus, as Time said, “a baby designated male in the delivery room who grows up to identify as a man is cisgender.”

Why is the term useful to some? Because it provides an opposite and complimentary word to “transgender”.

According to news articles, the term has actually been in use for some time in academic circles.  And if you’ve been on Facebook, the term was added last year when the social network re-did its gender terminology.

Now, not everyone is a fan of the word. In a Slate post on the word, it notes that “there has been some pushback against the label and its connotations of privilege from certain feminists and members of the LGBTQ community. Even some linguists doubt the term’s longevity and usefulness.”

But it goes to say that “including the word forces us to reconsider ideas of default gender identities—the idea that everyone is considered properly aligned with their assigned gender until they say otherwise.”

The corporate world is slowly adapting to this change as well. Take a look at this Powerpoint from CIGNA from 2014 about “Gender Transition in the Workplace”, which highlights the use of the term.

And, with regard to transgender issues, we’re even seeing OSHA chiming in on bathroom use for transgender employees. 

Google Trends also shows an uptick on the use of the word as well.

Back in 2011, Connecticut added “gender identity or expression” as a protected category under the state’s anti-discrimination laws.  It’s fair to say then that change is happening as we speak.  It’s not just the legal issues but the language itself. Human resource departments would be wise to stay up with the latest.

bitsWith Twitter, I’ve been doing less “recap” posts of late. Why? For the simple reason that you can get all of the posts I’ve read of late on Twitter.

We didn’t have that when I started the blog nearly 8 years ago.

(Side note: It was eight years ago this week that I came up with the idea of doing a labor & employment blog after attending an ABA conference with Kevin O’Keefe in Montreal. Time flies.)

But from time to time, I still think its useful to recap some interesting developments in labor & employment law without a dedicated post. So, here are a few items I’ve read lately that you might find of interest.

  • With Bruce Jenner’s recent interview, the issue of transgender employees in the workplace is moving to the forefront again. This Employment Law360 story recaps the state of affairs.
  • Attorneys who represent empl0yees are looking for new ways to help prove emotional distress damages in discrimination cases.  As BeLabor the Point points out: “For example, doctors can now use functional magnetic resonance imaging (fMRI) and positron emission tomography (PET) scans to measure and visibly observe the effects of emotional distress on the brain.” This may represent a new area of the law in the upcoming years.
  • Many bloggers have been writing on code words for age discrimination that pop up from time to time in job advertisements.  Suzanne Lucas, of Inc., talks about one such example — the use of of the phrase “digital native”.
  • In past years, I’ve talked about how the legislature keeps considering a bill that would force Connecticut schools to teach labor history.  That bill is still alive this year.  And may be making more progress than people realize.

Over the weekend, the General Assembly passed House Bill 6599, which adds “gender identity or expression” as a new protected category under employment law.  Governor Malloy has indicated that he will sign the bill.  Assuming he signs the bill, here’s what you need to know as an employer in Connecticut.  (For more background, you can see my prior coverage here.)

When is the Bill Effective?

When signed by Governor Malloy, the bill will become effective October 1, 2011.

What Employers Are Covered?

General Assembly Winds Down

Employers with 3 or more employees are covered by the bill.

What Does the Bill Do?

It adds “gender identity and expression” as a protected class. So, just like an employer is prohibited from making employment decisions based on gender or race, an employer is now prohibited from using “gender identity and expression” to make decisions too.

What is “Gender Identity and Expression”?

According to the General Assembly, it means:

a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth, which gender-related identity can be shown by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held, part of a person’s core identity or not being asserted for an improper purpose.

In popular terms, the term “transgender” is typically used.  You may also have heard the term “gender non-conforming individuals”.   For more information, you can view the Connecticut Transadvocacy Coalition website.

Are Any Employers Excluded?

Yes.  This new law doesn’t apply to any religious corporation or entity “with respect to the employment of individuals to perform work connected with the carrying on by such corporation” or “with respect to matters of discipline, faith, internal organization or ecclesiastical rule, custom or law which are established by such corporation”.  In other words, religious bodies can set their own rules regarding gender identity and expression.

What About the “Bathroom Issue”?

When transgendered people come out at work, one question that arises is what bathroom that individual can or should use.  This bill does not address that specifically and indeed, in suggesting that no discrimination should occur, it puts the onus on the employer to act in the employee’s best interest.  That said, for background on the issue, there are plenty of sites that discuss it and different approaches.  A recommended best practices approach is is that transgendered employees use the restroom for the gender they are presenting (unless a state law prevents an employee from doing so.)

What Steps Should Employers Take in Response to this New Bill?

  • Update any existing EEO policies and harassment policies to add “gender identity and expression”.
  • Educate staff (including managers and supervisors) of the change in the law and answer questions that anyone may have.
  • Conduct a general assessment of your company’s existing practices and ensure that it is in compliance with the terms of this new law.
  • Closer to the date of effectiveness, send out a notice to employees; there may be transgendered employees who haven’t “come out” yet.  Be proactive in creating a harassment-free environment.

If you have any questions, be sure to seek appropriate legal guidance on any other rules that might apply specifically to your type of company or situation.

 

The on-again, off-again bill that would prohibit discrimination on the basis of gender identity and expression (including transgendered individuals) passed the Connecticut House late Thursday night on a vote along party lines.

The bill, H.B. 6599, would add a new protected class and defines "gender identity as follows:

"Gender identity or expression" means a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.

The bill now moves on to a vote in the Senate. The Connecticut Mirror has a full recap and reaction at their site here.