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Gender Identity and Sexual Orientation Discrimination in the Workplace

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Gender Identity and Sexual Orientation Discrimination in the Workplace

Given the US Supreme Court ruling of Bostock v Clayton County, Georgia, decided June 15, 2020, employers, employees and employment law attorneys need to understand the heightened protections afforded employees in the workplace based on gender identity and sexual orientation.

Presenters

Colleen Quinn
Owner
Quinn Law Centers

Transcript

- Hello, welcome to Quimbee CLE. My name is Jillian and I'm a program attorney here at Quimbee. Today, I have the pleasure of welcoming Attorney Colleen Quinn, who will be speaking with us about gender identity and sexual orientation discrimination in the workplace. Colleen is the owner of Quinn Law Centers and her practice focuses on employment law, personal injury law, family formation, and estate planning. Colleen has been practicing employment law for over 32 years. And as a part of Quinn Law Centers, she runs the personal injury and employment law center. We are so excited to have you here today, Colleen. Welcome.

- Thank you so much, Jillian. I am so excited to be here. Thank you, Quimbee, for having me. This is one of my favorite topics. It combines my very LGBTQI heavy practice with the area of employment law. It's a pretty fun area in which to practice and it kind of rises out of other materials I've written. One of them is "Riding the Storm Out" since the Stonewall court riots, which talks about kind of the history of LGBTQI discrimination, especially in the world of family formation, but also spilling over into the area of employment law. So I do run the Quinn Law Centers out of Richmond, Virginia, and I do practice in these crazy areas. I have an adoption surrogacy law center, a women's injury law center, and then the personal injury and employment law center. I do have my email in the materials. If you have any questions or you need to reach out to me, feel free to please email me in that regard.

- Great, Colleen. Well, we are so excited to have you. And you bring such a wealth of knowledge. It's gonna be such a great presentation. So can you give us a quick overview of what we plan to cover today?

- Yeah. So what I've learned, Jillian, is that it's really important to, first of all, understand the world of kind of sexual orientation and gender identity and really having the cultural competency. So the first part of the program is just going to be LGBTQI cultural competency. I'm not gonna read every slide, I'll trust people. In fact, I don't even wanna read all the slides because some of them, I feel like I've gotta put soap in my mouth because some of the words are very derogatory and would leave a bad taste in anyone's mouth. But I am gonna go over the fact that we do need to educate in our team and be educated ourselves. And then after we have that basic cultural competency understanding, then we will address the case law on gender identity and sexual orientation discrimination. So the first part is really just respecting your clients, customers, employees, prospective clients, et cetera, by knowing and using proper and respectful terminology. And really, we are all the same. We're all human inside. Regardless of our sexual orientation or gender identity, we're all people. So that's fundamentally what we have to continue to come back to. In terms of the terminology, I think, the key thing is to know the letters. Most people know that L is lesbian and G is gay and B is bisexual, T tends to be transgender, Q usually means queer or questioning, I is intersex, G and C is gender nonconforming, and A is asexual.

- Great. And so can you tell us the difference between gender identity versus sexual orientation?

- Yes. So there are two different concepts. Sexual orientation is who you go home to and gender identity is who you go home as. So one way to think about it is that gender identity is how you identify you self-identify. A sexual orientation is how you relate to other people in terms of what sex you might be interested in. So if we do look at gender identity, there are a number of different categories. I mentioned the gender nonconforming, there's gender queer. There's different types of gender identities in terms of how you might express yourself versus how you identify. Cross-dressers, it's a term for people who might cross-dress, but it doesn't necessarily mean that they're transgender. So just because you're a guy and you dress in a lady's outfit doesn't necessarily mean you want to transition to being a female. So that would be a way of gender expression in that regard. Transgender folks is just an umbrella term for people whose gender identity or gender expression differs from that that was assigned to them at birth. And there are terms that basically say, oh, that's a transgender man or that's a transgender woman. So Caitlyn Jenner would be a transgender woman, who is assigned male at birth. But to be perfectly respectful, you don't say transgender man or transgender woman, or even transgender, you just simply refer to the person as man or a woman, that is the respectful way of doing it in that regard. So that we're not making a distinction about whether somebody is a transgender female or transgender male. They should just be identified as male or female as the kind of polite way of doing it. So gender affirmation or transition, we don't say a person is transgendering. That's not an appropriate term. You would say that they're going through the gender affirming process or transitioning process, or they're in the process of self-authorization, which is basically three different phases of transition, which are social, legal and medical. And there are a lot of terms out there that we try to stay away from. Gender dysphoria is a DSM-5 diagnosis. It's not a term of general usage. It's not a very polite term. In fact, it's kind of an offensive term in that regard. So we stay away from that term. We do have folks that will either undergo gender reassignment surgery, also called gender confirming or affirming surgery. And some people don't necessarily have to undergo surgery to transition. Some people will just undergo the hormone therapy in that regard. There is a lot of controversy about children and children being forced to be put in line to be a male or female. And there's more information in the materials too about the World Professional Association for Transgender Health for folks that wanna read up a little bit more on that stuff.

- Okay. And so kind of going back to the terminology and picking the right words and showing respect, what's the best way to show respect for LGBTQI individuals?

- Yup, that's a great question. So the main thing is to know the words not to use and the words to use. So words, like I said before, I wanna wash my mouth out with soap, but very offensive words are words like tranny, shemale, he, she, it, transvestite, sex change, sex change operation. Those are very offensive terms. Out of respect, the key takeaway is try to call the person just by their name. That is the best way of showing respect for anybody is if you can call them by their name. And also ask them what pronoun do you prefer, that shows immediate respect. I was getting my hair done the other day and the gal told me that she was trans and I said, "oh, what pronoun do you prefer?" And she says, "oh my goodness. Thank you so much for asking me my preferred pronoun." So that is viewed as a sign of respect to ask them for what is your preference in terms of which pronoun do you prefer? We do have the issue of folks that don't know if they really want to be male or be female that will identify as they. And there's information in the materials about basically the transformation of they and how it came about. Also, I've had case examples. I had Betsy and Bo, two people in a car accident. And Bo was they and Betsy was lesbian. And it was just like a comedy routine, 'cause I was asking Betsy, "well, who was in the car accident?" And she says, "well, they were." And I mean, "you mean Bo?" And she said yes. I'm like, "who was injured in the accident?" She says, "I wasn't, they were." And I said, "you mean you and Bo?" So it was just easiest to refer to Bo by Bo's name as opposed to sex. There's a really great show, the TV show, "Billions", where the character Taylor is they and they do an amazing job of using the term they throughout that program. If you think about it, if somebody leaves like a pen on a table and it's left there, somebody might else might come up and say, oh, they left their pen. And we don't have to ascribe a his or her to that. So it's not that difficult to really incorporate the they terminology. But some people do struggle with it. I struggled initially as an English major with some of that terminology. So we also wanna look at sexual orientation. There are different aspects of sexual orientation. There's, of course, gay, lesbian and bisexual. And then there's questioning, folks that are questioning who they are. Of course, we're familiar with heterosexual and straight people who are gender queer. That's a term that's not as well known. Gender queer are people who do not ascribe to a binary notion of sex or gender. And then asexual are people with no desire for a sexual relationship with anyone. So again, lots of terminology there. There are also a lot of offensive terms with regard to sexual orientation. The term homosexual is not a good term to use at all. It's preferred to say a person is gay or lesbian, or you gonna use even the term bisexual, but we wanna avoid the term homosexual, because that's suggests that somehow gay people are diseased or psychologically or emotionally disordered. So avoid that term. We also wanna avoid term sexual preference or anything along those lines. It's almost as if you're saying that a person chooses their sexual orientation as opposed to it being something innate. So the preferred term is sexual orientation as opposed to sexual preference. Other offensive terms are like homosexual relations or homosexual relationship or homosexual sex. Just anything that uses the words homosexual, just stay away from them. People are people. They have relations, relationships and sex just like everybody else. So just stay away from those terms. Also stay away from gay lifestyle or homosexual lifestyle. Again, LGBT people live lives just like straight people. So there's no reason to refer to a separate type of lifestyle. Again, the terms like admitted homosexual, about homosexual. If you stay away from the word homo, you'll be fine. Of course, other terms that we know are bad are fag or faggot. If you're referring to them as a bunch of sticks, that's fine, but that's really old fashioned. So there's really no reason to use that term. Or dyke or sodomite or anything like that. Those are all considered very negative terms. We also wanna stay away from terms like deviant, disordered, destructive, perverted, anything along those lines. So we don't wanna use those terms and we also wanna stop other people from using those terms. So we also wanna make sure people don't associate LGBTQI individuals with other types of things like criminal behavior or whatever. So we wanna make sure that we stop people in their tracks if we hear. In a polite way, you can say, hey, a preferred term is actually this. You probably didn't realize that. In just in a nice way, try to correct folks in terms of their terminology.

- Absolutely. So let's move forward maybe into like relationships. I think there's a little bit more in this area that can be talked about. So can you give us like an overview of polyamory?

- Yes. So polyamory is a form of relationship involving more than two people and it's not necessarily referring to a man having many, many wives, that would be a purely heterosexual form of polyamorous marriage that has been practiced before in different religions. But polyamory is basically a choice by individuals to be in open relationships and in a non-monogamous relationship. And so more and more, we are seeing individuals that are choosing polyamory as a way of life and embracing that. So in your materials, I actually have this cartoon, this little boy is saying to another boy, have you met my moms? And there's a picture of genetic mom, biological mom, and then social mom, just to kinda illustrate the point in that regard.

- Moving forward, obviously, we've seen a lot of changes in this area and a lot of progression. So can you kinda tell us how things changed in 2015? 'Cause I know there's a shift there.

- Yes. So that was when Obergefell or Obergefell, however folks pronounce it. I didn't take French. So my mom pronounce it better than me. But the Obergefell versus Hodges case in 2015, of course, was when the United States Supreme Court recognized gay marriage in Virginia, where I practiced. It was actually recognized earlier in October of 2014 when SCOTUS denied cert in a case that we had that went up to the Fourth Circuit. So we actually had marriage equality a little bit earlier than the Obergefell case. So when that happened, all married couples were entitled to have their marriage recognized. However, it didn't necessarily mean that everything was hunky -dory, 'cause LGBT couples still were encountering issues and being recognized as legitimate parents, especially with the marital presumption not applying to necessarily their parentage of children. So by way of example, the Stankevich versus Milliron case out of Michigan was a case where the couple was married and they each had a child with each other by agreement. But upon their split, the biological mom tried to say the non-bio mom was not a parent. And then in the V.L. versus E.L. case, similar case, the biological mom had done a stepparent adoption with her wife in Georgia, but then moved to Alabama and then basically said, well, since Alabama doesn't recognize gay adoptions, then my wife is no longer the mom. And that went up on appeal to the Supreme Court. And SCOTUS basically said, no, no, all adoption orders have to be given full faith and credit throughout the United States. You can't just move to another state and now say that your wife is no longer a parent to that child. So despite the Obergefell decision, which is a great decision, we still have to recommend certain additional protocols for LGBT individuals. I love this cartoon in there. You've got this officiant who is marrying two guys and she says, you may now kiss the Supreme Court. So that's kind of a fun little slide in honor of the SCOTUS ruling.

- So it's great that we've made so much progress here. Shifting a little bit back towards the workplace. So knowing the terminology, being respectful, how can an employer really ensure that an LGBTQI-friendly work environment exists in their office?

- Yeah. Great question. So the first thing is to look at intake forms and see, do they ask anything that's kind of repugnant to the individual? Do they ask for sex or marital status? And is that really important to the relationship? I mean, in some cases for legal reasons, it is necessary to the intake. And if so, make sure the wording is appropriate. Like we don't wanna just have a choice of male or female. You may wanna leave it open-ended in terms of how are you identified? How is your gender identified on your birth certificate or how were you identified at birth with regard to your gender? How do you prefer to identify now? So we basically wanna make sure the wording is polite and respectful. And then if we can't tell initially if a person, how they identify, the first thing I do is I pretty much all ask, I'll get their name first, but some names like Hunter and Taylor and bunch of names out there that even Carol and some of their names go both ways. And so then I will simply say, as we mentioned before, what is your preferred pronoun? If I have any difficulty in trying to determine their sex. Usually, you can identify it based on how they're addressed and everything, but if it's questionable, just basically say, how do you identify in terms of your gender? Or what are your preferred pronouns? And then if you need to know legally, for legal reasons, if that's on their identification documents, then we'll say, is that the same gender that's on your identification documents? I mean, a lot of folks are coming to me for name changes or to basically change their gender identification on legal paperwork. And so I do need to know specifically how are they identified on their driver's license versus their birth certificate or do they have a passport, those sorts of things. So we do wanna explain why the gender identification is necessary out of respect. The other thing is I saw there's this great restaurant in Richmond where I was called L'Opossum. And when I first saw they had an all gender restroom, I couldn't wait to take a picture. So I've included that in the materials, but if you can put on your restroom, it's all gender, then that basically shows you have a welcoming place of work. I have on all of my signature blocks, the Equality Virginia block that says all are welcome here and shows that I'm a member of the Virginia Equality. And we also have LGBTQI-friendly materials that are in our lobby. In my signature block and in my signature blocks for all my staff, I put my pronouns as she/her/hers, how I identify, that immediately signals that I'm LGBT-friendly. And then we just wanna stay educated. I belong to the LGBT bar, the Virginia Equality Bar Association and I already mentioned Equality Virginia. And there tend to be similar organizations in most states. So that's really important in terms of making sure that your work environment is LGBT friendly and you send that message to folks.

- Absolutely. How did gender identity and sexual orientation really become protected in the workplace?

- Yes. So now, we're gonna kinda dive into part two. We finished the cultural competency piece in terms of what to say, what not to say, how to show respect. And so now we're going to kinda dive into actual cases. And just remember, as we do that, gender identity is one's innermost concept of self as male or female or neither or a blend of both. And gender identity can be the same or different from someone's assigned sex at birth. As Sam Kellerman would say, he would say, "gender is who you go to bed as. Sex is who you go to bed with." So that's we try to say gender identity is a person's inner identity. And then sexual orientation is outward, who you are romantically, physically or emotionally or sexually attracted to. And both of those have become protected under recent SCOTUS ruling. I did include in the materials if you'd like to get a little bit more down into the weeds in terms of gender identity versus gender expression, et cetera. I did include the gender-bread person, which talks about all the different phases of gender identity and sexual orientation and gender expression versus biological sex. So that's a nice graph that kind of explains in more detail the spectrums that people might fall on in different areas. So basically, what happened was in the Bostock versus Clayton county ruling by the Supreme Court, it was argued in 2019 and decided June 15th, 2020. That was the seminal case where the big question was under Title VII. Title VII protects discrimination on the basis of sex and religion and national origin and race, and a number of other factors. The question was, well, does the term sex, does that in... And we also have the pregnancy discrimination amendment. So it was clear that pregnancy was included under the sex prong, but the question was, okay, is sexual orientation on our gender identity, do they fall under this component of sex? And so there were actually a combination of three cases on appeal and we're going to study each case, because that way, we kind of get a better picture of how this discrimination works in the workplace and just basically a better understanding of these issues. Let's see. All right. I'm just checking on which side I'm on. There we go, Jillian.

- Yeah, Colleen, if you want, we can sort of look at what the ruling was in those cases and what led us to that point.

- Yeah. So it was the Bostock versus Clayton county case. And then in addition, there were these two other cases, Altitude Express and also RG & GR Harris Funeral Homes versus the EEOC. So I'm actually gonna show you the pictures of the individuals that are involved in each of these cases as well. So the Supreme Court accepted these three cases that asked whether the federal anti-discrimination laws under Title VII should apply to sexual orientation and gender identity. And they consolidated these cases together Bostock and Altitude Express, both involved discrimination on the basis of sexual orientation, and the RG & GR Harris Funeral Homes versus EEOC involved the question of whether existing discrimination laws applied to transgender workers. And so basically, there was this famous SCOTUS ruling, and it was a ruling of six to three with Justice Neil Gorsuch, who was President Trump's first appointee to the court writing the majority opinion, which was a little bit of a surprise, because folks weren't sure where Gorsuch was going to land on kind of conservative versus liberal spectrum. And then the opinion was joined in by Chief Justice John Roberts and the Courts for Liberal Justices, which included Ruth Bader Ginsburg at the time. And Gorsuch found that the discrimination was barred by the 1964 Title VII law that bans discrimination in employment based on race, religion, national origin, or sex. And that sex was in fact to be construed broadly in this broad fashion.

- Was there a now famous quote from the .

- Yeah. So Gorsuch has this great quote out of the decision, and I'll just read it to you. It's quote, "in our time, few pieces of federal legislation rank and significance with the Civil Rights Act of 1964, there in Title VII, Congress outlaw discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions, it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids." And this was a really significant quote because if you think about the Civil rights Act of 1964, I mean, that was brought about by Martin Luther King and all of the proponents that were out to prevent race discrimination and basically claiming that a person doesn't have innate control over their race, how they're born. So this opinion is really significant because it's recognizing folks with regard to their sexual orientation or their gender identity as being something innate, something that you don't really have control over, that you are born with as opposed to choosing. And so it's been a long time coming to make it clear from the science side that people start to recognize that these are not necessarily things that people choose, this is how they are. So what happened in the Bostock case was that basically, Gerald Bostock was a gay man and he worked for Clayton County, Georgia as a child welfare services coordinator in 2003. So this case was out of Clayton County, Georgia. And during his tenure career with Clayton County, he got positive performance reviews and evaluations and numerous accolades. And then after 10 years of being there in 2013, he begins to participate in a gay recreational softball league. And then shortly thereafter, he starts getting criticism by his employers for his participation in the league and for his sexual orientation and identity, generally. And then during a meeting in which his supervisor was present, at least one individual openly made disparaging remarks about his sexual orientation and his participation in the gay softball league. So here's a picture of Gerald Bostock, super adorable guy, Smiling, of course, he's smiling, because he finally prevailed after many, many years of fighting for himself. So as he's starting to get more criticism in the workplace, Clayton County then tells Bostock that they're gonna do an internal audit of the program funds that he managed. Now, this is a guy that had a stellar employment record. And then afterwards, they terminate him allegedly for conduct unbecoming of its employees. So within months of his termination, he files a discrimination charge with the Equal Employment Opportunity Commission. And of course, when you file these charges, they usually have a mandatory 180 days to process the charge. They might also have mediation, et cetera, but it's a long time, it's a long process. And so then eventually, three years later, three years later in 2016, this guy was persistent. He filed a pro se lawsuit, so he wasn't even represented by counsel, against the county alleging discrimination based on his sexual orientation in violation of Title VII of the Civil Rights Act. The district court dismissed his lawsuit saying, buddy, you don't have a claim, because Title VII doesn't protect sexual orientation, which was contrary to an actually a 1979 decision out of the Eleventh Circuit holding otherwise. So Bostock appeals and goes up to the Court of Appeals from the Eleventh Circuit, which affirms the lower court. And so then it goes up to basically the Supreme Court. At that point, it gets combined with these other two cases for this.

- Yep. Okay, so that's Bostock. So tell us a little bit about what happened in the other two cases that you mentioned.

- Yeah, so you're gonna love seeing Don Zarda, he's quite a character. So that case was out of the Second Circuit, Zarda versus Altitude Express. He was a gay skydiving instructor who was fired because of his sexual orientation. So basically the case was significant, 'cause it overruled two other cases that expressly stated sexual orientation was not cognizable under Title VII. So there's a picture of Don Zarda in his skydiving attire and everything. Quite the character in that regard.

- He looks like a superhero.

- Yeah, he does. He does. So unfortunately, yeah, he passed before his case made it all the way up through. So he didn't get to see the final outcome, which was really sad. So the other case, the third case. Now, this was the gender identity case, whereas the first two were sexual orientation. So in this case is the EEOC versus RG and G Harris Funeral Home case. In that case, Amy Stevens, and we've got a picture of her, worked at the funeral home for six years and she was terminated two weeks after she told her employer she planned to transition to become a woman. Her employer specifically said he fired her because she would no longer dress or represent herself as a man. So with the termination, a lot of times the termination will be kind of protectual like in Bostock's case. They terminate for conduct unbecoming an employee, but here in the Harris Funeral Case, I mean, they just flat out said because you won't dress as a man, you're fired. So that was a gender identity case, which the EEOC investigated and actually brought the charges on her behalf for terminating her based on her transgender and transitioning status and the discriminatory clothing allowance policy. The district court, in that case, actually granted summary judgment for the funeral home on both counts under the Religious Freedom Restoration Act as their reasoning. And this is the tension that we see between religious freedom, but also, protections in the employment setting for gender expression and sexual orientation and gender identity. So the lower court grant summary judgment and says, no, Mr. Funeral home, you get to fall under religion as an excuse for terminating her. And then the Sixth Circuit reverse saying no, that the discrimination was based on her gender expression and her transitioning status was sex based discrimination. And therefore, the lower court was wrong and she did have a cause of action. So then that, of course, goes up from the Sixth Circuit on the way up to the US Supreme Court, to SCOTUS. And the Sixth Circuit opinion actually has some good language in there. They say that Title VII was intended to, quote, "strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes, which includes any discrimination based on gender or perceived gender." They also have some other great quotes. Another quote was, quote, "discrimination based on a failure to conform to stereotypical gender norms", close quote. Was no different under Title VII than discrimination based on quote, "the biological differences between men and women", close quote. And then the finally, another really good quote out of that decision is, quote, "it is analytically impossible to fire an employee based on that employee's status as a transgender person without being motivated, at least, in part by the employee's sex." So these were all great quotes that basically said, a person's identity, it's so tied to their sex that these all are fall under the sexual prong of Title VII. And so they've got to be protected.

- It's really interesting 'cause the progression of these cases, what other cases led us up to the Bostock ruling by SCOTUS?

- Yeah. So it was great because you had this split in the Circuits, where it's like the Supreme Court of the United States had to finally like make a decision and make a ruling, because prior to these three cases, there were all these other cases out there and where I am in the Fourth Circuit, we did not have case law that recognized gender identity or sexual orientation until the SCOTUS ruling in Bostock. But other Circuits did have favorable law where employment lawyers in other parts of the country were able to bring these claims. And in Virginia where I am, we were not able to bring those claims up until this ruling. So another good gender identity case was out of the Eleventh Circuit and that was the Glenn versus Brumby case, a 2011 case. And in that case, the court held that termination of an employee based on their gender transition or transgender status with regard to bathroom concerns, constituted sex based discrimination. And that was in violation of the Equal Protection Clause of the US Constitution. So that was a different ruling than Title VII, but it was use of the Equal Protection Clause to get the same type of basically recovery or basically the same relief. So I've got a picture there of Vandy Beth Glenn, who worked as an editor for the Georgia General Assembly. And she notified her boss as she was gonna transition to become a woman. And she was terminated because her boss thought that would be inappropriate and disruptive to the workplace. So she sued for discrimination under the Equal Protection Clause saying she was discriminated against, because of her female gender identity and failure to conform to sexual stereotypes. So the Eleventh Circuit recognized that, not under Title VII but under the Equal Protection Clause of the US Constitution. So in that case, the district court had granted summary judgment in favor of her on her sex discrimination claim, and the Eleventh Circuit affirmed that case. And then a great quote out of that decision is quote, "an individual cannot be punished because of his or her perceived gender nonconformity, because these protections are afforded to everyone. They cannot be denied to a transgender individual." So that was a great quote out of the Eleventh Circuit. Another case that came out of the Sixth Circuit was the Barnes versus City of Cincinnati case. I've got a picture of Felicia there. So I try to personalize these folks. But in that case, the Sixth Circuit held that termination of an employee based on her gender transition was sex based discrimination under Title VII. So again, going back to Title VII, as opposed to the Equal Protection Clause argument. In this case, Felicia began to transition from male to female while she was working for the Cincinnati Police Department. She lived as a man on duty and a woman while off duty. She was told she did not appear masculine enough at work and she lacked a commanding presence. She then passed a promotional test to become a sergeant and she began her probationary period, which was standard policy. But then she was demoted at the end of the probationary period. So she challenged the demotion under both Title VII and the Equal Protection Clause. And the jury ended up ruling in her favor, awarding her $320,511 in damages. And then the Sixth Circuit upheld the district court decision saying again that sex stereotyping based on a person's gender nonconforming behavior was impermissible discrimination under Title VII. So in that case, again, using both Title VII and the Equal Protection Clause, both arguments were successful for Felicia in that case. So moving right along. In the case of Smith versus City of Salem, again, that was a Title VII based claim. The Sixth Circuit held that termination of employee based on her gender transition did constitute sex based discrimination. That was a case where Smith was a firefighter who was born male, who started to identify and express herself as female. And then her coworkers and supervisors started to tell her that her actions and mannerisms weren't masculine enough and she was suspended for an alleged infraction of a policy. The district court dismissed her claims initially saying that transgender discrimination was not available under Title VII, but the Sixth Circuit then found that she did have a prima facie case for sex discrimination. That was the first time in 2004 that the Sixth Circuit or any circuit hinted that gender identity discrimination could be claimed as sex discrimination. And the court did rely on the Price Waterhouse saying that sex stereotypes are considered discrimination. So that was the first inkling we got back in 2004, that this might be coming down the pipe. In that case, the Sixth Circuit says, quote, "employers who discriminate against men because they wear dresses and makeup or otherwise, act femininely are also engaging in sex discrimination because the discrimination would not occur but for the victim's sex."

- And Colleen, so we've been through a few cases. These are all incredible and the quotes are amazing. Do you have any of your own personal cases that you can illustrate for us as an example?

- Yeah, so I have this fantastic client. Her name is Dina Persico and she's let me use her likeness and image and story. Her story's public. We were able to get it on TV and a lot of news outlets just to be able to promote her story. She was a Chesterfield County school teacher. Her sexual orientation is lesbian. She was married to another Chesterfield County school teacher, but her wife presented in a much more feminine way. Whereas, Dina presented in a much more masculine way. You can see from the pictures I've included in the slides, that she's got the short hair, it's kind of goes up. I mean, her gender identity is female, but her gender expression is more masculine. So she started encountering a lot of hostility and discrimination in her place of work. In the materials, I have a wonderful four minute film clip to watch that basically explains the lawsuit that we filed and what she underwent with regard to the way in which she was treated in the workplace, which was very difficult, because she was told that she had to dress a certain way, that her hair needed to be a certain way, that she needed to get bangs. And so she explains in the video clip, all of the things that she's being told. Like guy teachers are allowed to wear fleece and a button down collar, but she's being told that she should be wearing a dress, that she needs to dress in a more feminine way. We also had an underlying disability claim, kind of an autism claim. She was a high functioning on the autism spectrum, which played into kind of her personality being a little bit more on the masculine side. So that kind of tied into the case. Now, the downside was at the time I handled that case, we did not have the Bostock ruling. So we were stuck with law in Virginia, which basically did not recognize gender identity or gender expression or sexual orientation as recognized as protected classes in Virginia. We did have a case, Oncale case, which is an interesting case out of the Fourth Circuit, where a gay man who was Harris really badly on the ship in which he and other guys were working, actually recognized a hostile work environment based on same-sex. And it was really more heterosexual guys that were picking on him for being gay, but they were kinda coming onto him and doing a lot of mean things. And so the Oncale case we had out there, we didn't have a clear case in Virginia or the Fourth Circuit that said that sexual orientation and gender identity were in a protected class. So we had a lot of uncertainty at the time of the Dina Persico case because we didn't have clear law and the Bostock decision hadn't come down the pipe. We did settle the case and we did a public settlement. It wasn't for a whole lot of money. It was more to be a change agent that was really important to Dina. So as part of the settlement, we were able to get a cultural competency training, kind of like what I did earlier in the program for all of the Chesterfield County school teachers and school systems. We also were able to get some scholarships for some high functioning autistic students and a couple of other remedial measures in place. And so that was really critical to Dina. She mainly just wanted to be a change agent to see change happening. And then as part of that case, she got contacted by lots and lots of students and a number of students that came out of the closet to her saying, hey, thank you so much for getting out there in the public and doing what you're doing in that regard. So it was a great case and it was a good outcome for everybody. So hopefully, folks will enjoy that film clip, because it's kind of interesting and uplifting in that regard.

- We encourage everyone to check out the clip. And Colleen, if somebody told me I had to get bangs to have my job, I'd probably sue them too. So I understand. I'm sure that Dina couldn't have been the only one sort of at this point with a case like this. So what other cases were in the works prior to the Bostock ruling?

- Yeah, so there were some cases floating all around the place, not just in Virginia, but in elsewhere. So there was an EEOC opinion in 2013 in the Baldwin versus Fox case. And that was the first time the EEOC held that sexual orientation discrimination could be seen as sex discrimination. So that was a really important decision. So basically, the decision involved an air traffic controller, who was not promoted to a permanent position because he was gay. And EEOC held that an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII. And so the EEOC took that position starting in 2013. And then moving on from that point in time saying that employers should not use gender or sex based considerations in employment actions and that constituted sex discrimination. We're starting to see kind of this movement starting with the 2004 case. And then we're seeing additional cases kind of coming through the pipeline where we're starting to see more and more of an indication of, hey, these might be protected areas under the sex prong of Title VII and also under the Equal Protection Clause. So in 2017, the Seventh Circuit actually came out with the Hively versus Ivy Tech Community College of Indiana case. And that case involved a lesbian part-time adjunct professor who was repeatedly denied promotions, which she believed was related to her sexual orientation. In that case, the court held that sexual orientation discrimination was a subset of sex discrimination. And it cited that Oncale case, O-N-C-A-L-E case that I mentioned before, which was that Fourth Circuit case involving the male on male sexual harassment. And they basically said that under Oncale, sex can be interpreted to include sexual orientation. So it was interesting that the Fourth Circuit itself, when I had Dina Persico's case was not recognizing sexual orientation or gender identity as protected classes, and they were not following their own ruling and Oncale, but the Seventh Circuit then pulled the Fourth Circuit ruling to rely upon it to say that these are protected classes, which was kind of interesting that the Seventh Circuit would've relied on that opinion. And then I've got a picture of Kimberly Hively there. So you can actually visualize her as an individual. We, also, in 2018. So this is all leading up to Bostock. That was argued in 2019 and the decision handed down in 2020. So these are all leading up to that decision. So the Ninth Circuit, which is out in the California Washington state area, in the Franks versus Santa Ana case, that was a case involving a lesbian police officer, who was forced out of her job based on her sexual orientation. And the court did not rule on the merits of the case, but said the lower court was wrong to not allow that case to go to the jury. So they sent it back down, which indicated that the Ninth Circuit was open to the idea that sexual orientation discrimination would be recognized under Title VII. So again, these were not the three chosen cases that went up to SCOTUS, but they were all opinions that were essentially leading up to that point. And then I've got a picture of Tammy Franks there, who was the former Santa Ana police chief. So again, you can kinda better identify with her in that regard by actually seeing a picture.

- That's great. I think the pictures really add a lot to the stories to just kind of visualize.

- Yeah. These are real people. Yeah.

- Exactly, exactly.

- Like they're real humans inside. Yeah.

- Yeah. And so, obviously, we've kind of gone over all of these cases that have been claims growing against employers. So let's sort of do the reverse and talk about what employers can do to protect themselves from claims of gender identity or sexual orientation discrimination in the workplace.

- Yeah. So I represent a lot of employers besides employees. And it's important to understand that these cases are about sexually discriminatory acts, but another type of discrimination is hostile environment harassment, or basically hostility and harassment directed at somebody. So these cases apply not just to failure to promote or demotions or job terminations, but these cases also apply to hostile work environments and harassment in the workplace. The reason I say harassment, Jillian, is because I had an 11th grade English school teacher, Luella Connolly, God rest her soul, very matronly. And she was very Southern and she used to say, class, class, it's harris. You must use the term harris for one never talks about harass. So we just.

- Oh my goodness.

- To hear that come out of this very Southern matronly, white, English teacher that I had, I have never forgotten that. So every time, if I start to say harassment, I hear a Luella Connolly telling me no, no, it's harris for one never talks about harass.

- I'm sure you won't be the only one after this. I'm sure someone else in our audience is gonna take that with.

- That's right. I mean, so those terms are used and basically pronounced each way, but I'm gonna say harassment in honor of dearly Luella Connolly. So we wanna make sure in our employee handbooks and our EEO policies that we define sex more broadly to permeate discrimination on the basis of sexual orientation and gender identity and gender expression. And also, we want to prevent hostile work environment or harassment on the basis of those protected classes as well. And then it's really important that employers train supervisors and employees to understand the distinctions, as well as how to be culturally competent in LGBTQI terminology. So all of the things we went through at the first part of this program are all the things that employers really need to teach their employees and have that cultural competency training. So we wanna make sure too that any postings, any EEO postings in break rooms or similar areas are the most up-to-date and they include gender identity and sexual orientation and gender expression, all is subsets of sex discrimination. We want to send a message from the top down on acceptance of persons from all walks of life and have a zero tolerance policy for any acts or words of discrimination or harassment or hostility. But we really want to make sure that message is sent down from the top. And that usually really puts kind of a kibosh on any folks in the workplace acting in a way that is discriminatory in that regard. So by having a message from the top down, it's really hard for people to not follow the tune of the leaders of an organization. And the other thing is, as I mentioned before, if an employer can get its employees to put their preferred pronouns in their signature blocks, it just sends an overall message to other employees in the organization who might identify differently that they are accepted within that workplace. So an employer sending that message from the top down to its employees to put that into your signature blocks, also incorporating things like I've incorporated, which are if you contact your state equality bar or Equality Virginia, they tend to have materials that you can put in break rooms, that you can put in lobby areas that will show that folks are LGBT-friendly. And then also in everybody's signature blocks, just like my block, I have that bold kind of badge from Equality Virginia that says everybody's accepted here. And so the more we can send out those messages, send out that messaging, the clearer it's gonna be, that employees are in an LGBT friendly environment. And then clients and customers are going to feel like they are in an LGBT-friendly environment. It's just treating everybody as human beings and making sure that we treat everybody with respect using respectful language in that regard. So I think a lot of employers can keep themselves out of hot water and not end up being sued. Like those employers were in the Bostock and other cases that we've reviewed today by just taking these simple steps and making sure that they send the messaging from the top down.

- Are there any resources or areas that employees, or I'm sorry, employers, who might be looking to implement some things like this can go or can look at? 'Cause I think a lot of people probably wanna make these changes, but aren't really sure where to start.

- Yes, definitely. So one would be the LGBT Bar. That's a national bar organization. So having in-house council or council or having somebody join the LGBT Bar Association, which has lots and lots, or even just going onto their website. There also is the Equality Council, used to be called Family Equality Council, just called Equality Council, National Center for Lesbian Rights has lots of good materials on its website. Check each state has... Like we have Equality Virginia. Each state, for the most part, has a similar, like Equality Maryland, Equality North Carolina. And that's where I was able to pull a number of my employer materials from in that regard. And then, of course, the cultural competency training piece that I did earlier, that's something that we periodically try to update, but that type of training is out there and available. And so we just wanna make sure people, I mean, steal my slides. I actually got them from a girl friend of mine who does a lot of cultural competency training. She just was like, "hey, Colleen, feel free because we just need to make sure that we are doing the right thing and making sure we educate people on using proper terminology and everything." So she was very free with letting me steal her PowerPoint originally and then updating and modifying it in that regard. So it's kinda like share the wealth and in that way, we can all learn together and we can all become better people.

- Yeah. It's great to just be able to get the information out there. So I'm sure everyone appreciates that. And this presentation was fantastic. I learned so much and I'm sure our audience did. Hopefully, we'll have you back in a year, two years and who knows what things are gonna be like then and what stories you'll have for us.

- Right. Thank you so much, Jillian.

- It was a pleasure to see you today, Colleen. Thank you so much.

- Great. Buh-bye.



- Field county wore pants and upset the entire education system.

- That former teacher says she was told she was too masculine and needed to be more feminine. Now, she's filed a lawsuit against Chesterfield Public schools alleging gender discrimination. She spoke one-on-one with 8News investigator, Kerri O'Brien. A story you'll see only on 8.

- If you just throw a skirt on once in a while, we wouldn't have any of these problems.

- [Narrator] Harassment.

- Flamboyant was a favorite term of theirs.

- [Narrator] Intolerance.

- Your appearance is too flamboyant. Your arm movements are too flamboyant. It's said with intent. And that intent is to say that you're gay.

- [Narrator] And repeated reprimands about her appearance.

- [Dina] It was suggested that if I seemed more feminine, I would be less intimidating.

- They used those words?

- To seem more feminine, yes.

- [Narrator] Dina Persico, a former Chesterfield civics teacher, who is a lesbian, alleges in a federal lawsuit against Chesterfield Public Schools, she faced constant sexual discrimination.

- There were some jokes made like, oh, should we call her Mr. Persico?

- [Narrator] She tells us she was once banned from the lady's room.

- I went to put my hand on the door and he actually blocked me. And he was like, no, that's not really appropriate. You going in there with the young female students. I felt really humiliated. It was an assault on my person. And then it was like your basic human dignity, I just need to use the restroom. That's all I need to do.

- This is gender discrimination.

- [Narrator] Persico's attorney, Colleen Quinn, tells us the harassment was initiated by administrators and other staff at Providence Middle School and intensified at Midlothian High School.

- Just this ongoing barrage of criticism directed at her because of how she dresses.

- Simple shirt. I put on a second layer because it gets cold.

- [Narrator] Button downs, a sweater or fleece, pants and athletic shoes. That was her typical teaching attire.

- I'm just not a fashion person at all.

- [Narrator] Her employee handbook, only a few lines on dress code calling for a professional look.

- Seemed like they would just kind of find a piece of my outfit to have an issue with that day.

- But you said other teachers had fleeces on.

- Oh yeah, there was, I mean, one guy. He was an English teacher. He lived in his gray fleece. I mean, it was every day he wore that thing.

- And no one said anything to him?

- No one said anything to him.

- So why do you think they were saying something to you?

- Oh, because I'm a girl who was wearing a fleece.

- [Narrator] Persico taught in another Virginia district for 10 years without issue and has piles of notes from students praising her work in Chesterfield. And if you ask her about teaching civics, something she dreamed of doing since she was a kid, she lights up.

- And I absolutely loved it. We get to teach the kids, what it means to be a citizen and how they can participate in the government.

- [Narrator] The constant badgering she says started when the principal at Providence learned she is gay and married to a fellow teacher.

- It's very clear to me that my wife was discriminated against because of the way that she expresses her gender. I think I'm given, and women like me are given more of a pass because we appear more feminine. I was actually in the meeting where the assistant principal told her to change her hairstyle.

- And they suggested that if I got bangs, it might soften me.

- Your employer?

- Yes. Suggested I got bangs. I got them.

- [Narrator] Eventually, it took its toll. Persico suffered a mini stroke.

- What did the doctor think that stemmed from?

- She said it was 100% related to stress.

- It's been devastating. She's lost her entire sense of self-identity and who she is.

- [Narrator] Her doctor advised her not to return to work.

- I just felt like this was a case that cried out for awareness.

- [Narrator] Now, Persico's final lesson, a lawsuit. She and her attorney hope leads to change.

- Number one, they get some training and they understand that what they did to me is wildly inappropriate.

- We really wanted to talk to Chesterfield school leaders about the teacher's allegations, but we were told Chesterfield schools does not comment on pending litigation. Kerri O'Brien, 8News.

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