Last September, for the first time ever, the EEOC sued two private employers for discriminating against employees who had transitioned from one gender to another.
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:
Management attorneys should read this case—important rules from the EEOC on transgender rights. http://t.co/LhT2OD6W6S
— Chai Feldblum (@chaifeldblum) April 8, 2015
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 (@
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:
- 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.”
- 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.
- 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.
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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Even without a federal law that specifically bans discrimination in the workplace based on sexual orientation or gender identify, it’s no secret that one of the EEOC’s top priorities is to protect LGBT workers from discrimination.
And the EEOC is being quite transparent about it, with a new guide for employers and employees.
I’ve got that for you after the jump…
You have an employee handbook, an anti-harassment policy, training, the whole nine.
But, sometimes, notwithstanding your best efforts to create a positive, respectful workplace, you receive a complaint from an employee who claims to be the victim of harassment based on [insert protected class].
All the prophylactic measures you’ve already installed mean nothing unless you respond to that complaint appropriately.
See how one company did it right, after the jump…
So, if an employee complains about sexual-orientation harassment and is later fired because she complained, then that won’t create a claim under Title VII. Or does it?
Find out after the jump…
According to a Friday report from Cynthia L. Hackerott at Wolters Kluwer, President Obama will sign an Executive Order today banning discrimination against LGBT employees by federal contractors.
Last month, I blogged here that the White House had announced that it intended to eventually ban LGBT discrimination by federal contractors through Executive Order because the Employment Non-Discrimination Act (ENDA), did not make it through Congress.
Since that time, several gay-rights groups withdrew their support for ENDA, fearing that it afforded “religiously affiliated organizations … a blank check to engage in workplace discrimination against LGBT people.”
Following the Supreme Court’s Hobby Lobby decision, religious groups had pushed the White House to include a religious exemption in the President’s Executive Order. However, Ms. Hackerott and Jennifer Bendery at The Huffington Post (here) confirm that today’s Executive Order will not have a religious exemption.
What the Executive Order does.
The Executive Order will amend an existing Executive Order originally signed by President Lyndon Johnson, which bans discrimination by federal contractors against an enumerated list of protected classes. President Obama’s amendment adds sexual orientation and gender identity to that list.
According to Ms. Bendery, this Order affects 24,000 companies employing roughly 28 million workers, or about one-fifth of the nation’s workforce.
Some non-federal contractors may also be covered.
It’s worth noting that many states and municipalities already protect LGBT employees from workplace discrimination, regardless of whether their employer’s contract with the government. Most Fortune 500 and 100 companies already have internal rules banning LGBT discrimination.
Update: President Obama has signed the Order and the White House has published a fact sheet entitled “Taking Action to Support LGBT Workplace Equality is Good For Business“.