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E.E.O.C. Charge Data
• FY 2014:
− 1,100 LGBT charges
− $2.19 million
• FY 2015:
− 1,412 LGBT charges
− $3.3 million
• 28% and 51% increase in
charges and monetary relief
respectively.
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Definitions
• Transgender is a term used to describe people whose gender identity
differs from the sex the doctor marked on their birth certificate.
• Gender identity is a person's internal, personal sense of being a man or a
woman (or someone outside of that gender binary). For transgender people,
the sex they were assigned at birth and their own internal gender identity do
not match.
• Transsexual is an older term that originated in the medical and
psychological communities. Still preferred by some people who have
permanently changed - or seek to change - their bodies through medical
interventions (including but not limited to hormones and/or surgeries).
− Transgender ≠ Transsexual. Unlike transgender, transsexual is not an
umbrella term. Many transgender people do not identify as transsexual
and prefer the word transgender.
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Definitions (continued)
• Transgender male (FTM) means someone who
identifies as male but was assigned the sex of female at
birth.
• Transgender female (MTF) is someone who identifies
as female but was assigned the sex of male at birth.
• Transition: The process of changing one’s gender from
the sex assigned at birth to one’s gender identity. There
are many different ways to transition. For some people,
it is a complex process that takes place over a long
period of time, while for others it is a one- or two-step
process that happens more quickly. Transition may
include “coming out” (telling family, friends and
coworkers); changing the name and/or sex on legal
documents; and, for many transgender people,
accessing medical treatment such as hormones and
surgery.
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Laws Prohibiting Discrimination against
Transgender Individuals
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Price Waterhouse v. Hopkins (1989):
Where It All Began
• A female employee alleged she was
postponed promotion to partnership at
the firm for two years in a row based on
sex-stereotyping against gender
nonconformity.
• Co-workers called her “aggressive, foul-
mouthed, demanding” and “impatient.”
• “Talk and dress more femininely…”
• Court found she stated a claim for sex
discrimination. Becomes known as the
“sex-stereotype” theory.
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E.E.O.C. Expands Title VII Protection
to LGBT Employees
• Macy v. Dep’t of Justice (2012): EEOC says “gender
identity/transgender discrimination necessarily involves sex
discrimination.” Therefore, it violates Title VII.
• EEOC lists examples of discriminatory acts against transgender
employees:
− Firing an employee because he or she is planning/or made a
gender transition.
− Denying an employee equal access to a common restroom
corresponding to the employee’s gender identity.
− Harassment by continuously and intentionally failing to use the
transgender employee’s name or gender pronoun that
corresponds to his or her gender identity, and which the
employee has communicated to management and employees.
− Failing to hire an applicant because she is a transgender woman*
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Lusardi v. McHugh, EEOC Case No. 012013395
( April 1, 2015).
• An employee transitioned from a man to a woman during the
course of her employment. Had a transition meeting.
• She agreed to use the single-user bathroom
rather than the common’s women restroom.
• On occasion, however, she had to use the
common’s restroom.
• Supervisor:
− “You’re making people uncomfortable.”
− Prohibited her from using restroom until proof she
underwent the “final surgery.”
• EEOC: Nothing in Title VII makes any medical procedure a
prerequisite for equal opportunity for transgender individuals,
or anyone else. Gender reassignment surgery is not a
fundamental element of a transition.
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What about Federal Courts?
• Despite the absence of any federal law expanding Title VII
protection to gender identity and sexual orientation, the EEOC’s
“gender stereotype” theory is also being applied by district courts to
protect LGBT employees from employment discrimination.
BUT…
• Courts - Price Waterhouse v. Hopkins has limits:
− LGBT employees are unlikely to be protected if they did conform
to gender stereotypes (i.e., if a gay male appeared and behaved
masculine, etc.).
− Example: Employer failed to hire a transgender employee by
rejecting application.
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EEOC v. R.G. & G.R. Harris Funeral Homes, Inc.
(E.D. Mich. filed Sept. 25, 2014)
• A male funeral director has been employed with the company since
October 2007.
• In 2013, this employee gave a supervisor a letter explaining that he
would be transitioning from male to female, and would begin to wear
clothes to fit her new gender identity.
• Two weeks later, the employer fired the funeral director and
allegedly said that what “he” was “proposing to do was
unacceptable.”
• The employee filed a Charge of Discrimination, and the EEOC
agreed to file suit in district court alleging that the employer
discriminated based on sex because the employee was transgender.
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EEOC v. R.G. & G.R. Harris Funeral Homes, Inc.
(continued)
• Employer filed a motion to dismiss and argued that:
− Gender identity is not a protected category under Title
VII.
− Gender identity is not the same as Price Waterhouse
gender stereotyping.
− Prior case law allows employers to fire employees for
not following sex-designated dress code.
• The employer lost the motion. What does the court say?
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EEOC v. R.G. & G.R. Harris Funeral Homes, Inc.
(continued)
[T]ransgender status is not a protected class under Title VII. Thus,
if the EEOC’s complaint had alleged that the Funeral Home fired
Stephens based solely upon Stephens’s status as a transgender
person, then this Court would agree with the Funeral Home that
the EEOC’s complaint fails to state a claim under Title VII.
But the EEOC’s complaint also asserts that the Funeral Home fired
Stephens ‘because Stephens did not conform to the [Funeral
Home’s] sex- or gender-based preferences, expectations, or
stereotypes’..,[A]ny person– without regard to labels such as
transgender – can assert a sex-stereotyping gender discrimination
claim under Title VII, under a Price Waterhouse theory, if that
person’s failure to conform to sex stereotypes was the driving
force behind the termination. This Court therefore concludes that the
EEOC’s complaint states a claim as to Stephens’s termination.
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EEOC v. R.G. & G.R. Harris Funeral Homes, Inc.
(continued)
• Outcome?
• Still pending!
• Both parties filed motions for summary judgment to
dismiss the case.
• Court has not yet issued a ruling.
• The parties agreed to mediate should the Court deny the
motions.
• Big take-away for employers is that lawsuits that allege
some form of gender stereotype against transgender
employees cannot be dismissed in early stages for
failure to state a claim under Title VII.
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EEOC v. Lakeland Eye Clinic, P.A.
(M.D. Fla. filed Sept. 25, 2014)
• Employer was a clinic that performed refractive, corneal and
cataract surgery to treat retinal diseases.
• It decided to open a hearing division.
• In July 2010, the clinic hired a male employee as Director of Hearing
Services.
• At the time of hire, this employee presented as a male, “Michael.”
• He provided hearing services to patients who were referred to him
by the employer’s existing physicians.
• Satisfactory performance.
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EEOC v. Lakeland Eye Clinic, P.A.
(continued)
• Nearly a year later, Michael began wearing feminine attire to work,
including make-up and women’s tailored clothing.
• Co-workers snickered and stopped interacting with the employee.
• A couple of weeks later, the employer requested a meeting with the
employee to discuss her changing appearance. The employee
stated that she was undergoing a gender transition from male to
female and that she would change her name legally from Michael to
Brandi.
• After this meeting, a few managers and co-workers called her
derogatory names.
• Physicians working for the employer also stopped referring patients
to her for hearing services-deprived her of her client base.
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EEOC v. Lakeland Eye Clinic, P.A.
(continued)
• Two months later, the employer fired Brandi and told her that the
company was closing its hearing services division, and thus
eliminating the position of Director of Hearing Services.
• In August 2011, the employer hired a male as Director of Hearing,
“who conformed to traditional male gender norms.”
• Brandi filed suit and the EEOC intervened.
• After 7 months of litigation, the parties settled and entered a consent
decree.
• The clinic agreed to pay Brandi $150,000.00 in damages:
− $75,000 in back pay
− $75,000 in emotional distress
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EEOC v. Deluxe Financial Services Corp.
(D. Minn. filed June 4, 2015.)
• Employee worked for Deluxe since October 2007. At the time she was hired, she
presented as a male.
• In November 2010, the employee told her supervisor of her intention to present
herself as a female at work.
• She underwent hormone therapy and legally changed her name to a traditional
female name.
• Afterwards, she asked to begin using the women’s restroom.
• She also asked that her sex-designation be changed in internal personnel
communications, e.g., personal profiles, phone directories, etc.
• However, her supervisors refused to let her use the women’s restroom out of
“consideration for other employees.”
• Supervisors refused to change her sex-designation without providing “proof of legal
documentation showing her name change” and “completing the surgery portion of
the gender change process.”
• Supervisors asked invasive questions about gender-related surgeries.
• Employer only changed her name and sex-designation in some internal records, but
not all, despite repeated requests by the transgender employee.
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EEOC v. Deluxe Financial Services Corp.
(continued)
• For months, she was denied access to women’s restroom without medical
proof.
• Manager even forbade her from using the women’s restroom outside of its
offices.
• An e-mail from the employer: “honestly, I am not sure we can mandate
her use of the bathroom outside of the call center, but let’s keep that
to ourselves.”
• Co-workers and supervisors purposefully used the wrong gender pronouns
and called her: “boy” “Cheetah”.
• Co-workers made fun of her female appearance during staff trainings
sessions.
• She reported these instances, but nothing was done.
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EEOC v. Deluxe Financial Services Corp.
(continued)
• Employee filed suit, EEOC intervened, alleging sex discrimination and sex-based hostile
work environment.
• The case settled on January 20, 2016.
• The parties entered a 24-page consent decree in which the employer agreed to pay this
employee $115,000.00 in damages. The consent decree stated:
− Employer provides employee a letter of apology.
− Ensure that employee requests to change sex-designation or name information on
internal records are done fully and promptly.
− Employer would not make exclusions in their health care benefits plans for medically
necessary care based on transgender status.
− Revise employment policies including a commitment to preventing unlawful sex
discrimination which includes transgender status.
− Revise its internal policies that make clear employees are permitted to use restroom
commensurate with their gender identity and will not be required to present medical
documentation of gender reassignment surgery or other medical procedures before
using restroom. (training for this). These policies are to be sent and approved by the
EEOC.
− In effect for three years.
• These terms were also found in Eye Clinic case. (minus the apology letter).
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Broussard v. First Loan Tower LLC
(E.D. La. Sept. 2015)
• A manager-trainee was required to produce his driver’s
license while filling out employment paperwork.
• His license listed his sex as “F.”
• When asked, the employee explained that he is a transgender man.
• A few days later, the VP of the company alleged told him that he
must dress and act as a female in the workplace because it was
confusing to customers.
• As a condition of employment, the company required him to sign a
statement agreeing to act and be treated as a female rather than a
male.
• He refused. The company fired him.
• The employee filed a Charge of Discrimination. EEOC issued right
to sue and later intervened in the civil lawsuit.
• In arbitration now.
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Is Having a Dress Code a Defense?
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Creed v. Family Exp. Corp.,
(N.D. Indiana Jan. 5, 2009)
• Before being hired by Family Express as a sales associate, the employee started her
gender transition (to female).
• However, when she applied for the position, she presented as a man – Christopher Creed.
• She began changing her appearance to look more feminine: clear nail polish, trimming her
eyebrows, and wore black mascara. Grew her hair out and began wearing in a more
feminine style.
• She began using the name “Amber.”
• Supervisor met with her to discuss transition; employee said he was supportive.
• Received great reviews and awarded “Greeter of the Month” three times.
• The meeting with HR and Director of Operations. Allegedly told her not to dress feminine
manner because of customer complaints. Employee told them she was going through a
transition. In response, the HR person asked “whether it would kill [her] to appear
masculine for eight hours a day” and asked her why she applied for a job if she knew she
was undergoing gender transition.
• They told her if she didn’t report as a male she would be terminated. The employee asked
that they apply the dress code standard for female to her instead of male. They refused.
• When she refused to conform to the dress code, she was fired.
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Family Creed’s Dress Code Language
• Family Express requires all of its employees to maintain a
conservative, socially acceptable general appearance, conceal all
tattoos, take out all body piercing[s], and wear uniforms neatly, with
shirts tucked in and belts worn.
• Males must maintain neat and conservative hair that is kept above
the collar and prohibits earrings or any other jewelry that
accompanies body piercing.
• Females also must maintain neat and conservative hair, which
needn’t be above the collar, and may wear makeup and jewelry so
long as it is conservative and business-like.
• Court: Dress code was not discriminatory because it did not impose
an undue burden on male employees.
• Court, therefore, applied the male dress code standard to the
employee who was a transgender female.
• Minority view, however.
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Alexia Daskalakis v. Forever 21, Inc. (April 1, 2015)
• Started as a sales associate in Brooklyn in May 2011 and soon promoted to being
responsible for setting up store displays.
• January 2014: Daskalakis began transitioning to present as a woman, she began
dressing in a more traditionally feminine manner and started wearing makeup.
• August 2014: she began taking hormones to transition.
• One day she wore jeans, a crop top and leather jacket - she was told that her clothing
was inappropriate and needed to change. However, other female employees were
wearing the same thing.
• Supervisor responded, “the male dress code is different from the female dress
code, and you’re still a male until you change your birth certificate.” He sent her
home.
• She complained to her supervisor about the supervisor’s boss (District manager),
who said out loud that her attire was disgusting and offensive. The supervisor
defended his boss and said “he just got used to people being gay, but this is
totally different. He’s not used to guys becoming girls.”
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Alexia Daskalakis v. Forever 21, Inc.
(cont.)
• She was fired after her manager began harassing her. She had tried
to communicate with HR three times, but her calls and messages
went unanswered.
• She filed a lawsuit under NY State Human Rights Law and New
York City Human Rights law. She also filed a charge of
discrimination.
• She had signed an employment agreement with arbitration clause.
• Still pending. Employer filed a motion to compel arbitration.
Employee opposed the motion arguing that the enforceability of
arbitration clause.
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Common Issues for Transgender Employees
• Restrooms
• Attire/Dress Code
• Updating Records to Correspond to
Gender Identity
• Accommodations for Medical Procedures
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OSHA GUIDANCE ON RESTROOMS
• Not law, but failure to abide by this guidance could lead to a citation
under the “general duty clause.”
• OSHA: It is “essential for employees to be able to work in a manner
consistent with how they live the rest of their daily lives, based on their
gender identity.”
• All employees should be permitted to use the facilities that correspond
with their gender identity.
• The employee, not employer, determines the most appropriate
restroom for him or her to use.
• Best practices:
− Single occupant gender neutral facilities; or
− Multiple occupant, gender-neutral facilities with lockable single
occupant stalls.
• Employer should not require an employee to provide medical or legal
documentation of their gender identity before using the restroom.
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Applying Dress Codes to a Transgender Employee
• Employers CAN have dress code, but whether it’s discriminatory
depends on its enforcement. Ex: If no employee is allowed to wear
long earrings, then you do not need to make an exception for a
transgender employee.
• However, enforce it consistently by gender identity. Ex: Apply female
dress code to all females (including transgender females).
• May need to make exceptions during an employee’s transition.
• EEOC recognizes applying dress code out of business necessity:
− safety reasons
− visibility (e.g. law enforcement)
− business image (This is rarely a defense though).
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Family and Medical Leave Act
• Eligible employees may take up to 12 workweeks of FMLA leave in
a 12-month period:
− For the birth of the employee’s child and for bonding with the
newborn;
− For the placement of a child with the employee for adoption or
foster care and for bonding with the newly-placed child;
− To care for the employee’s spouse, son, daughter or parent with
a serious health condition; or
− When the employee is unable to perform the essential
functions of his or her job due to the employee’s own
serious health condition.
− Examples: Gender-reassignment surgery requiring overnight
hospitalization, continued hormone therapy or counseling
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Case to Watch: Chavez v. Credit Nation Auto Sales,
LLC (N.D. Ga. Jan. 14, 2016)
• EEOC did not intervene but only filed an amicus brief.
• Plaintiff was a mechanic who worked for a company that sells and repairs
cars.
• In 2009, she informs her employer that she intended to transition from male
to female.
• Months later, she was fired after a supervisor photographed her sleeping in
a car during work hours.
• She filed an EEOC Charge, and employer moved for summary judgment.
The employer won on the grounds that it had a legitimate reason to
terminate her employment and it was not pretextual.
• Went to the 11
th
Circuit who reversed:
− “She need not show that the legitimate reason was pretextual… it is
enough that she show that discriminatory animus existed and was at
least a motivating factor.”
• Set to go trial in the next few months.
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So What Kind of Evidence Did Chavez Present?
• Mostly statements allegedly made by her boss that:
− He felt nervous about her transition and said he did
not want problems created for her or any other of his
employees due to her “condition.”
− She was going to negatively impact his business.
− She should not bring up the issue of transitioning with
other employees unless asked.
− He told her not to wear skirts or mini skirts and that
jeans and tops were acceptable.
• No prior disciplinary record.
• Told once not to use the unisex bathroom that other
female employees use. She complained. Employer asked
for legal advice. In the e-mail the lawyer said that
management should focus on work and performance and
if there are any concerns to write it up. It was argued that
the employer tried to find a legit reason to terminate her
employment.
• Progressive disciplinary structure, which employer said
normally followed, was not.
• Sleeping on the job was not included in the list of
behaviors warranting immediate termination.
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State Laws Prohibiting Discrimination Based on
Gender Identity
18 +
D.C.
3
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Current Tension between
Federal and State Law
• North Carolina H.B. 2: requires transgender people to use public
restrooms according to the biological sex assigned on their birth
certificate and prohibits them from filing suit.
• Mississippi H.B. 1523: allows employers to decide whether to hire,
terminate or discipline an individual whose conduct or religious
belief are inconsistent with his or her sincerely held religious belief.
• So how does this affect federal law?
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EEOC Says: No Defense!
• “EEOC interprets and enforces Title VII’s prohibition of sex
discrimination as forbidding any employment discrimination based
on gender identity or sexual orientation. These protections apply
regardless of any contrary state or local laws.”
• “If a state and local law permits or does not prohibit discrimination
based on sexual orientation or gender identity, the EEOC will still
enforce Title VII’s discrimination prohibitions against covered
employers in that jurisdiction because contrary state law is not a
defense under Title VII.”
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The Hobby Lobby Decision
• Hobby Lobby and similar employers whose owners
assert religious objections cannot be required to
offer insurance coverage to their employees for
contraceptive methods that conflict with the owners’
religious beliefs.
• Applied to closely-held corporations. Court left
open the possibility of publicly held corporations
bringing RFRA claims.
• Scope of Hobby Lobby will likely be tested to
determine whether employers can be compelled to,
(for example):
− Provide benefits to same sex spouses;
− Recognize same-sex marriages;
− Provide health coverage for sex reassignment
surgeries for transgender employees; or
− Hire homosexual or transgender employees
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What about the “Kim Davis” Employee?
• Disputes arise when an employee claims a religious right to protest
accommodating LGBT employees, which can cause tension and
problems in the work place.
• Religious beliefs must also be accommodated.
− Examples: change schedule, transferring an employee to a
different position or exempting them from a dress and
grooming policy).
• Must address religious concerns like any other accommodation, but
cannot fire or otherwise negatively affect the transgender employee.
− Perhaps limit interactions. But ask to be courteous like with
all employees.
• Employers not required give employee’s requested accommodation.
• Employers do not have to tolerate business disruptions such as
refusing to assist customers.
• Always think about the job duties, nature of your business and the
size of the employer.
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Employer’s Dos and Don’ts
Do’s
1.Update/Revise antidiscrimination and harassment policies and procedures
to ensure that it protects against discrimination and harassment based on gender
identity.
2.Conduct training and communicate these policies to managers and
supervisors, including how to handle complaints from transgendered employees
on equal opportunity training programs to include sexual orientation, gender
identity and gender stereotyping.
3.Review and revise other applicable policies to include protections for LGBT
workers e.g. family and medical leave policies, or even dress code policies.
4.Consider posting advertisements or listings in “LGBT friendly” publications or
job postings sites and working with LGBT organizations to attract/retain LGBT
applicants and employees.
5.Consider gender neutral dress code or enforce dress code in a consistent
manner.
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Do’s
6. If employee is comfortable, schedule a meeting with an
employees undergoing a transition or who you are aware are
transgendered. Discuss items such as: timing of gender
reassignment procedure, employee’s new name or whether co-
workers should be informed of the decision.
7. Offer Nondiscriminatory Health Insurance.
8. Let workers choose own bathrooms. (Or implement unisex
bathrooms for all).
9. Ensure employee’s privacy re: his or her gender transition (only
limited to HR/manager on need-to-know basis)
10. Update personnel records and other internal records upon a
transgender employee’s request (do so promptly!)
11. Check your state and local laws if stricter protections apply.
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Don’ts
1. Do NOT require an employee to wear clothes opposite of his or her
gender identity.
2. Do NOT prevent a transgender employee from using a gender
specific bathroom (even if unisex restroom is available).
3. Do NOT use his/her legal name if he or she has requested using a
different name.
4. Do NOT ask invasive questions about medical treatment (raises
ADA concerns).
5. Do NOT use derogatory terms to describe transgender employees
such as “she/he” or “she-male”, incorrect pronouns.
6. Do NOT talk to other employees about transgender status without
notifying employee first and asking consent.
7. Do NOT use quotation marks around the employee’s pronoun or
name.
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More Employer Resources for Transgender Issues
• https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protection
s_lgbt_workers.cfm
• http://transgenderlawcenter.org/resources/employment.
• http://www.hrc.org/resources/transgender-inclusion-in-the-
workplace-recommended-policies-and-practices
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Questions?
