Sex Discrimination [Transgender]

1. Sex Discrimination [Transgender] Macy v. Holder, 2012 Macy offered a job with Walnut Creek crime lab (part of AFT) pending background check Macy told staffing firm responsible for filling the position that she was “in the process of transitioning from male to female.” Staffing firm told Macy that position was no longer available due to federal budget restrictions Contacted the EEOC and told that position had not been cut but given to another person further along in the background checking process Filed complaint with ATF claiming discrimination regarding gender identity, sex, and sex stereotyping EEOC Decision: “Claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition.”

2. Sex Discrimination [Sexual Orientation] Executive Order 11478 section 1 (as amended by Executive Orders 13087 and 13152) provides: It is the policy of the Government of the United States to provide equal opportunity in Federal employment for all persons, to prohibit discrimination in employment because of race, color, religion, sex, national origin, handicap, age, sexual orientation, or status as a parentand to promote the full realization of equal employment opportunity through a continuing affirmative program in each executive department and agency. This policy of equal opportunity applies to and must be an integral part of every aspect of personnel policy and practice in the employment, development, advancement, and treatment of civilian employees of the Federal Government, to the extent permitted by law.

3. Sex Discrimination (cont.) [Sexual Orientation] Title VII does NOT cover a prohibition against sexual orientation or sexual preference But, Title VII does prohibit discrimination based on sex stereotyping (e.g., Price Waterhouse) EEOC has ruled that hostile work environment claims based on sex stereotyping are covered by Title VII Veretto v. Donahue (2011): In favor of gay employee for hostile work environment claim (harsh treatment by a coworker after learning that complainant was marrying another man) Castello v. Donahue (2011): Gay female subjected to offensive and derogatory comments about her having relationships with women “… motivated by the sexual stereotype that having relationships with men is an essential part of being a woman, and made a negative comment based on complainant’s failure to adhere to this stereotype.” Employment Nondiscrimination Act (ENDA): Unlawful for an employer, because of an individual's actual or perceived sexual orientation or gender identity – Not law yet State laws in 29 states do not prohibit discrimination based on sexual orientation, and 32 states do not prohibit discrimination based on gender identity

4. EEOC and Sexual Orientation EEOC v. Pallet Companies d/b/a IFCO Sys. North Am., Inc. (2016) The EEOC alleged that a lesbian employee (Yolanda Boone), was harassed because of her sexual orientationand/or her non-conformity with the employer's gender-based expectations, preferences, or stereotypes in violation of Title VII. The EEOC further alleged that Boone's supervisor harassed her by repeatedly making comments, sometimes accompanied by sexually suggestive gestures, about her sexual orientation and nonconformity with stereotypical female gender norms. Days after Boone complained to management and contacted complaint hotline, the company retaliated by terminating her employment Settlement reached with EEOC (2-year consent decree) • $202,200 in damages; $182,200 for Boone and $20,000 to the Human Rights Campaign Foundation • Requires company to stop engaging in future sex discrimination or retaliation • Retain an expert on sexual orientation, gender identity, and transgender training to assist in developing a training program for IFOC's staff on LGBT workplace issues Pending suit by EEOC in EEOC v. Scott Medical Health Center, P.C., (W.D. Pa., Civ. No. 2:16-cv-00225-CB, filed March 1, 2016): Alleged discrimination against charging party Dale Baxley on the basis of sex in violation of Title VII when it subjected him to harassment because of his sexual orientation and/or because he did not conform to the employer's gender-based expectations, preferences, or stereotypes.

5. LBGT Discrimination Laws by State

7. Sexual Harassment (Basic Points) Sex as a condition of employment or basis for employment decisions or behavior of a sexual nature that is unwelcomeand that unreasonably interferes with one’s work performance or creates an intimidating, hostile, or repressive work environment • Quid Pro Quo (sex as a condition of employment or basis for employment decisions) • 2) Environmental harassment (behavior of a sexual nature that is unwelcomeand that unreasonably interferes with one’s work performance or creates an intimidating, hostile, or repressive work environment)

8. Sexual Harassment (Some Key Factors) • Investigating the record as a whole • Viewing the totalityof the circumstances (e.g., nature of the relationship, nature of the sexual advances, context in which the behaviors occurred) • Examining the evidence on a case by casebasis • Conduct is potentially illegal if the organization “knew or should have known” of sexual behavior • Sources of harassment: • Supervisors (company responsibility; agent of the company) • Co-workers (corrective action) • Clients (extent of company control)

9. What determines unwelcome sexual behavior? • A complaint at the time of the offense strengthens a claim, but it is NOT required • Victim's non-verbal conduct may indicate that the behavior is unwelcome (e.g., being visibly upset, angry) • Corroboration is helpful (e.g., testimony from eyewitnesses, victim told others of the harassing behavior); but evidence can come solely from the victim

10. How is a hostile work environment established? • Reasonable person standard • Repeated offenses • Behavior of supervisors are more likely to be viewed as creating a hostile • environment. [Seen as an "agent" of the company] Harris v. Forklift: “… objectively severe and pervasive by a reasonable person” Oncale v. Sundowner: “… judged from the perspective of a reasonable person in the plaintiff’s position…”

11. Meritor Savings Bank v. Vinson (1986) • Plaintiff: • Alleged that her supervisor had made sexual advances toward her throughout her four years of employment • Vinson relented to her supervisor’s advances for fear of loss of employment • (behavior was unwelcome)

12. ~ Summary of Supreme Court Decision in Vinson ~ • Sexual harassment is a form of sex discrimination and thus a violation of Title VII of the Civil Rights Act • Both “tangible job benefit” (Quid Pro Quo) and “environmental” harassment are violations of Title VII. That is, it can exist under conditions where it creates a hostile or repressive work environment and liability can exist whether the company knew or should have known of the harassing behavior. • A company is NOT immune from legal liability when it had a grievance procedure and policy against sexual harassment • Even if sexual behavior is “voluntary” the key is that it is “unwelcome.” • Actions toward victim must be sufficiently sever and pervasive to interfere with job performance • A company is not automatically liable for “environmental” sexual harassment

13. ~ Harris v. Forklift Systems ~ Charge: Alleged that the President of Forklift Systems, Inc., Charles Hardy, was guilty of sex discrimination by creating an "abusive work environment“ Comments and behavior from Harris' supervisor: "You're a woman, what do you know?" "We need a man as the rental manager." Called her "a dumb ass woman." Suggested that the two of them "go to the Holiday Inn to negotiate [Harris'] raise" Asked Harris (and other female employees) to take coins out of his pants pocket Threw objects on the floor and asked female employees to pick them up >>> Harris complained to her supervisor, he was surprised, and said he would stop. Alas, a month later: When arranging the signing of a deal with a customer Harris' supervisor said "What did you do, promise the guy --- some [sex] Saturday night? She quit and sued the company

14. ~ Harris v. Forklift Systems (cont.) ~ Findings: District court found this to be"a close case." The United States District Court in Tennessee held that Hardy's conduct did notcreate an abusive environment No evidence of serious psychological harm to Harris Some of Hardy’s behavior was found to offend Harris and would be offensive to a “reasonable woman” but they were not: "so severeas to be expected to seriously affect[Harris'] psychological well being. A reasonable woman manager under like circumstances would have been offended by Hardy, but his conduct would not have risen to the level of interfering with that person's work performance.

15. Supreme Court Decision in Harris No requirement that the behavior results in serious psychological injury We therefore believe the District Court erredin relying on whether the conduct "seriously affect[ed] plaintiff's psychological wellbeing" or led her to "suffer” injury." Such an inquiry may needlessly focus the fact finder's attention on concrete psychological harm, an element Title VII does NOT require. Certainly Title VII bars conduct that would seriously affect a reasonable person's psychological wellbeing, but the statute is not limitedto such conduct. So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, Meritor, supra, at 67, there is no need for it also to be psychologically injurious.

16. Middle Ground Approach in Harris v. Forklift Systems Moderate Low High Merely offensive conduct (simple utterances that are offensive but do not sufficiently affect conditions of employment and create a hostile work environment) Supreme Court decision in Harris [no need to demonstrate concrete harm] Conduct causing psychological injury [District Court decision in Harris] "So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, there is no need for it also to be psychological injurious" --- Supreme Court in Harris

17. Summary of Key Issues in Harris

18. Can males be guilty of sexual harassment against other males? Some Issues: Sexual interest vs. teasing, roughhousing, horseplay (e.g., nature of the alleged behaviors, physical versus verbal) Equal opportunity “bisexual” harasser (e.g., comparative evidence on how accuser treated both sexes). Mixed rulings after Oncale. Oncale v. Sundowner:

19. Burlington v. Ellerth Ellerth threatened with tangible employment consequences (e.g., no promotion, firing) unless she agreed to sex with her manager Threats never materialized (she was eventually promoted) She decided to quit her job alleging quid pro quo sexual harassment S.C. decision: This was a hostile environment case --- no tangible consequences (e.g., significant change in employment status such as failure to promote, firing)

20. Key Findings: An employer is subject to vicarious liability for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, the defendant may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence Affirmative Defense: • That the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior • That the plaintiff employee unreasonablyfailed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise SO … Ellerth should have an adequate opportunity on remand to prove she has a claim which would result in vicarious liability despite not suffering a tangible employment. Burlington is still subject to vicarious liability for their supervisor (Slowik) but should have an opportunity to assert and prove the affirmative defense

21. Faragher v. Boca Raton • Lifeguards for the city, in supervisory positions, engaged in physical and verbal harassment, including those directed at the plaintiff (below) • Terry repeatedly touched the bodies of female employees without invitation, put his arm around Faragher, with his hand on her buttocks, made contact with another female lifeguard in a motion of sexual simulation, made crudely demeaning references to women generally, once commented disparagingly on Faragher's shape, and during a job interview with a woman he hired as a lifeguard, Terry said that the female lifeguards had sex with their male counterparts and asked whether she would do the same • Silverman tackled Faragher and remarked that, but for a physical characteristic he found unattractive, he would readily have had sexual relations with her., he pantomimed an act of oral sex, within earshot of the female lifeguards, Silverman made frequent, vulgar references to women and sexual matters, commented on the bodies of female lifeguards and beachgoers, and at least twice told female lifeguards that he would like to engage in sex with them. • City had sexual harassment policy (did not disseminate revised SH policy to the lifeguards) • City stated that they did not know of the actions of the guards who acted against company policy

22. SC Decision --- • City had vicarious liability --- supervisor lifeguards are agents of the City • City can make present an affirmative defense (e.g., exercised reasonable care to preventand correct promptly any sexually harassing behavior) • But, … • the City had failed to disseminate its sexual harassment policy among the beach employees • its officials made no attempt to keep track of the conduct of supervisors • the City's policy did not include any harassing supervisors assurance that could be bypassed in registering complaints. Under such circumstances, the Court holds as a matter of law that the City could not be found to have exercised reasonable care to prevent the supervisors' harassing conduct

24. Pennsylvania State v. Suders (Constructive Discharge) After working for 4 months, Suders, a communications officer, quit alleging: • Daily sexual abuse by supervisors • Retaliation threats • Complaints to EEO officer were ignored • EEO officer gave her incorrect instructions on how to file a complaint • On several occasions, supervisors intentionally denied her requests for promotion

25. Supreme Court Decision in Suders • Constructive discharge, like retaliation, applies to all laws • It exists when the harassment has reached the point where a reasonable person in the employee’s position would be compelled to quit • Strict liability only when there is an official change in the victim’s status (a tangible employment action). • A constructive discharge may not always involve an official action (e.g., lack of an “agency connection.”) If not, the company has an affirmative defense

26. Sexual Harassment Case Summaries

27. Exemption for Religious Institutions From Title VII: It shall not be an unlawful employment practice for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion. • So, under Title VII, religious organizations are permitted to give employment preference to members of their own religion. The exception applies only to those institutions whose “purpose and character are primarily religious.” • Factors to determine this include: • Do its articles of incorporation state a religious purpose? • Are its day-to-day operations religious (e.g., are the services performed, products produced, or the educational curriculum directed toward propagation of the religion)? • Is it not-for-profit? • Is it affiliated with or supported by a church or other religious organization? • >>> Only allows religious organizations to prefer to employ individuals who share their religion. Other forms of discrimination are outlawed (e.g., race, sex)

28. Ministerial Exception • Clergy members (e.g., ministerial exemption) cannot bring claims under the federal employment discrimination laws (e.g., , Title VII, ADEA, EPA, ADA) • Based on First Amendment --- governmental regulation of church administration, including the appointment of clergy, impedes the free exercise of religion and constitutes impermissible government entanglement with church authority

29. Ministerial ExemptionEEOC v. Hosanna-Tabor • Sequence of Events: • Plaintiff (Cheryl Perich) after receiving the required training (e.g., coursework, oral exam) was categorized as a “called teacher (versus “lay” teachers) and was given the formal title of “Ministerof Religion Commissioned” • Plaintiffs duties overlapped a lot with those of lay teachers. But, she also taught a religion class, led students in daily prayer and devotional exercises, and took students to school-wide chapel services on a weekly basis • Plaintiff developed narcolepsy and took disabilityleave(Fall of 2004-2005 term) • In January, plaintiff announced she’d returnin February • Principal told plaintiff a lay teacher had been hired to replace her for the remainder of the year. Principal also doubted plaintiff was ready to return and, subsequently, congregation offered to pay portion of her salary to resign. Plaintiff refused. • In February, plaintiff showed up for work and refused to leave until written documentation was given that she’d reported to work

30. EEOC v. Hosanna-Tabor • Sequence (cont.) • Principal called plaintiff and said she’d likely be fired. Plaintiff responded that she’d contacted a lawyerand intended to sue. • Plaintiff received termination letter for: • Insubordination and disruptive behavior • Damage to the working relationship by threatening to sue • Plaintiff contacted EEOC claiming violation of the ADA; EEOC sued church for retaliation Decision: District Court granted SJD for defendant (Church) 6th Circuit: Plaintiff was NOT a minister (e.g., lay teachers did same work, Plaintiff did many secular duties) S.C. Plaintiff was a minister for purposes of the exception – ruled for the Church

31. Conditions of the “Lemon” Test -- Lemon v. Kurtzman, 403 U.S. 602 (1971) 1) The law/statute must have a have a secular legislative purpose (Purpose prong) 2) The law’s main effectmust be one that neither advances nor inhibits religion (Effect prong) 3) The statute must not foster "an excessive government entanglement with religion” (Entanglement prong)

32. Reasonable Accommodation Scenario (Sincerely held religious beliefs) Hmmm … maybe Sec. 701 (j) The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

33. SEC. 3: Religious Freedom Restoration Act of 1993 Prohibits any agency, department, or official of the United States or any State (the government) from substantially burdening a person's exercise of religioneven if the burden results from a rule of general applicability, except that the government may burden a person's exercise of religion only if it demonstrates that application of the burden to the person: (1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. Strict Scrutiny Analysis Plaintiff: • Proves it has a sincerely-held religious belief • Government law places a substantial burden on the exercise of that belief Defendant: • Law serves a compelling government interest • Law is the least restrictive means of serving that interest

34. Source: http://time.com/3766173/religious-freedom-laws-map-timeline/

35. Burwell v. Hobby Lobby (2014) Closely-held corporation: A corporation that has more than 50% of the value of its outstanding stock directly or indirectly owned by five or fewer individuals at any time during the last half of the tax year. The requirement by HHS to require closely-held for-profit organizations to provide their female employees with no-cost access to contraception is a violation of the Religious Freedom Restoration Act. ACA: Includes an “accommodation” for religious-affiliated organizations (e.g., hospitals, universities, nursing homes) to sign (and deliver) a federal form that indicates their objections. Company insurance policy or 3rd party administrators provides employees with FDA-approved contraception Little Sisters of the Poor Home for the Aged v. Burwell (2016): Petitioners allege that submitting this notice substantially burdens the exercise of their religion, in violation of the Religious Freedom Restoration Act, Vacated and remanded. Goal: To determine “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.” Example: Contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive cost-free contraceptive coverage from the same insurance company.

36. EEOC v. R. G. & G. R. Harris Funeral Homes, Inc. (2016) (Click here) See summary of case by Eugene Volokh (click here) • FACTS: • Company fired a male-to-female transgender employee • Company policy required male employees to wear traditional male suits and required female employees to wear skirt-suits • Employee insisted on wearing skirt-suits (e.g., "female" attire) • Sex discrimination suit filed – sex-based stereotyping >>> Previous cases generally upheld sex-specific dress codes But, Smith v. City of Salem (2004; click here): Making females wear dress, makeup, jewelry, etc. is sex discrimination. Discrimination/requirements would not exist "but for" person's sex Harris argued that eliminating the dress code would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs (RFRA) EEOC did not propose a less restrictive alternative (e.g., gender-neutral dress code), assumed gender identity or transgender status are protected classes under Title VII and that plaintiff has the "right" to dress as a female

37. EEOC v. Abercrombie & Fitch (2015) • Failed to hire plaintiff because of her scarf – a violation of the company’s “Look Policy” (prohibits wearing caps) • She was judged to be qualified but store assistant manager (Heather Cooke) was concerned about her scarf and possible violation of company policy. Cooke later asked District Manager for guidance saying that she thought the plaintiff wore the scarf for religious reasons. Told NOT to hire plaintiff. • Company said plaintiffs cannot show disparate treatment without first showing that an employer has “actual knowledge” of the applicant’s need for an accommodation • Supreme Court: Planitiff burden for a disparate treatment case is to show that the need for an accommodation (i.e., for a religious practice in this case) was a motivating factor in their employment decision. No knowledge requirement and failure-to-accommodate challenges can be brought as disparate-treatment claims.