Articles Posted in Sex

Apple in HandOk, presumably, I’m not the only employment lawyer trying to apply the Supreme Court’s decision in Obergefell v. Hodges to the employer-employee relationship. But, I can guarantee that this will be the best post you read about it today.

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Caitlyn Jenner got the cover of Vanity Fair and a million new Twitter followers shortly after confirming that she was no longer Bruce Jenner. So, by riding that wave with a timely blog post, I should at least get page 5 — above the fold — in the latest edition of “Employment-Law Blog Hunks,” the one you all read for the articles.

(Actually, I will be on Knowledge@Wharton’s daily show on SiriusXM channel 111 – Business Radio Powered by The Wharton School today from 10-12 EDT, as a follow-up to yesterday’s post, discussing Monday’s Supreme Court decision in EEOC v. Abercrombie & Fitch Stores, Inc.)

Now, before my ego explodes like a baseball off of Giancarlo Stanton’s bat, let’s revisit the issue of transgender employees and restroom access. Continue reading

Exactly one month ago, I addressed what many consider to be the elephant in the room when it comes to transgender employees: bathroom use.

On Wednesday, EEOC Commissioner Chai Feldblum fired off a series of tweets (1, 2, 3, 4, 5, 6, 7) to lawyers representing employers and employees. Below (and here) is the one she sent to my side of the bar:

By extension, this tweet is intended for companies as well.

The tweet links to an article from Buzzfeed’s Chris Geidner. Mr. Geidner addresses a recent EEOC decision which underscores the risks employers face when they play bathroom police for transgender employees:

In a decision dated April 1, the Equal Employment Opportunity Commission found that Tamara Lusardi “was subjected to disparate treatment on the basis of sex” — a violation of Title VII of the Civil Rights Act of 1964 — while working as a civilian employee at the Army’s Aviation and Missile Research Development and Engineering Center in Huntsville, Alabama.

Lusardi was forced to use a single-user restroom and not the women’s restroom after transitioning in 2010. On the occasions when she used the women’s restroom — when the single-user restroom was out of order or being cleaned — she was confronted by a supervisor. In addition, a supervisor repeatedly, and in front of other employees, referred to Lusardi by her former male name and with male pronouns.

While the EEOC’s decision involves a federal employer, and does not bind private employers, don’t think for a second that the EEOC would hesitate to pursue similar claims in the private sector. Indeed, it has. We’ve also seen a sex discrimination lawsuit by a former Sak’s transgender employee. That case settled.

As I noted in my prior transgender bathroom post, this issue is real. Employers need to educate their employees and train their managers that respect in the workplace extends to transgender employees too.

On my speaking boondoggles around the country, what’s the biggest issue I hear from HR professionals involving transgender employees?

Yep, it’s the use of the bathroom.

Folks, it’s not that complicated. But, I’ll get to that in a sec. First, with a tip of the hat to Joshua Block (@JoshACLU), over the weekend, I read this tweet, which links to this story from Jessica Shepherd (@JessShepSaginaw), about a Planet Fitness location in Michigan that received a complaint from a female gym member. This woman complained to the gym about a transgender woman (assigned male at birth; identifies as female) in the woman’s locker room. She then told other gym members that “a man” was using the woman’s locker room.

So Planet Fitness responded. Continue reading

Over the weekend, I joined a Facebook thread discussing a recent federal court complaint filed in Texas by a former Saks employee, Leyth O. Jamal. Ms. Jamal claims that Saks violated Title VII of the Civil Rights Act by discriminating against her because she is transsexual.

Saks claims (here) that the complaint lacks merit because Title VII doesn’t prohibit discrimination against transgender employees.

Writing for Slate.com, Mark Joseph Stern calls out Saks’ “trans-bashing legal strategy” as “legally untenable.” Underscoring the Supreme Court’s decision in Price Waterhouse v. Hopkins, Mr. Stern notes that Title VII forbids sexual stereotyping. For example, in Price Waterhouse, the company allegedly treated Ms. Hopkins differently because she was “macho,” was “tough talking” and used “foul language.” That is, she didn’t conform to the company’s expectations of how a woman should act in the workplace.

So, Mr. Stern is correct that sex stereotyping is unlawful. But, he also concedes that the Supreme Court has not gone the next step and banned discrimination based on transgender status. Still, he implies that, even without the Supreme Court’s imprimatur, the law overwhelmingly favors Ms. Jamal.

It doesn’t. (Well, many local and state laws do, but not federally…)

Indeed, in its motion to dismiss, Saks cites cases from three federal circuits, plus a recent decision from a Texas federal court — where the Saks case is now pending — which held that Title VII does not prohibit transgender discrimination. So, if this case is viewed as one of pure transgender discrimination, Ms. Jamal will lose.

[Note: the Complaint does contain allegations of sex stereotyping (Ms. Jamal was allegedly asked “to change her appearance to a more masculine one”) and a hostile work environment (allegations of violence based on gender)] 

At some point, either the Supreme Court is going to rule on this issue, or Congress will amend the law to clarify that transgender discrimination is (or is not) covered under Title VII.

In the meantime, a few notes about the Saks case:

  1. Companies, like Saks, are free to employ rules and policies prohibiting transgender discrimination. In this BuzzFeed article, Saks claims that it “maintains a long history of policies and practices that are fully supportive of the LGBT community and our LGBT Associates.”
  2. Don’t fault Saks for raising a good-faith legal argument that Title VII doesn’t prohibit transgender discrimination. Indeed, as noted above, several courts have reached the same conclusion.
  3. The Complaint is a series of allegations, not necessarily facts. Saks may not have done anything wrong, including treating Ms. Jamal differently because she is transsexual.

Little known fact: Pythagoras invented the Pythagorean theorem around 500 BC, which he nearly dubbed the  Chicken Pot Pie theorem, because he loved CPPs so much. That same year, Pythagoras’s brother, Sarogahtyp, discovered that, when one man tweaks another man’s nipple, it’s not sex discrimination. But, it will get you a black eye — especially when the recipient is your brother and he’s finalizing his legendary theorem when finishing off a flaky CPP.

Thousands of years later, it still holds true that when a man delivers a purple nurple — some of you know it by a more boorish synonym — to a male subordinate, it may be “manifestly inappropriate and obnoxious,” as one federal appellate court ruled last week, but it’s probably not sex discrimination.

More after the jump…

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Under federal law (Title VII), employers cannot discriminate because of one’s sex. While Title VII does not explicitly coverage transgender employees (i.e., someone born female who presents male, and vice-versa; also known as gender identity), the EEOC’s position is that transgender employees are protected too. Indeed, they’ve begun filing federal lawsuits on behalf of transgender employees who claim to have been discriminated against.

But, Courts have not uniformly accepted the EEOC’s position. Indeed, the state of the law here is very much unsettled.

Just before Thanksgiving, a Texas federal court considered whether an employer can discriminate under Title VII based purely on gender identity…and get away with it.

More after the jump…

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