Protecting Against Employment Discrimination Based On Gender Identity
On June 15, 2020, the Supreme Court of the United States (SCOTUS) issued a landmark decision regarding the scope of protections afforded under Title VII of the Civil Rights Act of 1964, for gay, lesbian and transgender employees in a trio of consolidated cases: Bostock v. Clayton County, GA., Altitude Express, Inc. v. Zarda and R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission et al., 140 S.Ct. 1731, 2020 U.S. LEXIS 3252 (Jun. 15, 2020) (consolidating No. 17-1618 (Bostock), No. 17-1623 (Zarda) and No. 18-107 (R.G. & G.R. Harris Funeral Homes). In a 6-3 decision authored by Justice Neil Gorsuch, SCOTUS found that the plain meaning of Title VII’s prohibition making it illegal for an employer to discriminate against an individual employee “because of such individual’s . . . sex” [42 U.S.C. §2000e-2(a)(1)], was sufficiently broad to prohibit an employee from being discharged merely for being gay or transgendered. Id. at 1739. As a result of that decision, and prior directives from the Department of Labor (“DOL”), and the Equal Employment Opportunity Commission (“EEOC”), federal law bars discrimination and harassment on the basis of sex to protect employees and applicants for employment from being harassed, denied employment or promotion, or otherwise subject to adverse treatment because they do not conform to societal gender expectations. This program will help employers to make sure that their workplace conforms to federal law and provides a safe space for employees to express their gender identity.
Aaron Tandy - Hello, and welcome to our program on protecting against employment discrimination based on gender identity. My name is Aaron Tandy, and we're gonna spend the time today discussing the impact of the Supreme Court's landmark decision regarding the scope of protection afforded under Title VII, the Civil Rights Act of 1964 for gay, lesbian, and transgender employees in a trio of consolidated cases, Bostock, Zarda, and Harris Funeral Homes. In addition, we will be discussing the latest directives from the Department of Labor and the Equal Employment Opportunity Commission, or the EEOC, regarding federal laws which bar discrimination and harassment to protect employees and applicants from being harassed, denied employment, or promotion, or otherwise subject to adverse treatment because they do not conform to societal gender expectations.
Hopefully, this program will make it easier for you to conform your workplace to federal laws and provide a safe space for employees to express their gender identity and continue to be productive members of your employment team. We're going to go through recognizing the need to address and prevent discrimination on the basis of gender identity in employment decisions, including hiring, promotion, and discipline, as well as recognizing that segments of the workforce remain uncomfortable with individuals transitioning between genders and address ways to lower resistance. Finally, we're going to recognize the need to modify or consider modify the manner in which anti-harassment training is conducted to comply with federal mandates to prevent discriminatory conduct from occurring on the basis of gender identity.
So let's get started. One thing that we should know is that many people are uncomfortable with people expressing their gender identity in the workplace. This goes back to some traditional expectations that many older employers have regarding what is appropriate in the workplace. But those of us who have been working in the employment field know that many newer employees, what we call generation Z and millennials, have different views on gender and are not interested in traditional gender labels. A study from 2021 finds that many generation Z and millennials believe that people are gender fluid. In the coming years, employers are going to have to recognize that their younger employees believe that a spectrum of gender identities exist and that each representation must be respected. For this reason, it's not simply that one can add the word sexual orientation or gender identification added to your anti-harassment or policies prohibiting discriminatory conduct in the workplace and call it a day.
Instead, it is important to recognize that the issue of gender identities and orientation needs to have its own policies, or at least its own consideration when dealing with workplace issues. For the purpose of this presentation, I will be using the term gender identity to cover the spectrum of gender expression that may exist for people identifying as among other things, transgender, fem, mass, non-binary, asexual, or other terms that people choose to use instead of simply traditional male and female designations. The Department of Labor's policy on gender identity, rights and responsibilities, which we will be noting frequently has a non-exclusive but comprehensive list of key terminology regarding gender identity conversations. And it is recommended for review. Finally, it is important to recognize that sexual orientation and gender identity are two different concepts that don't necessarily apply to all situations, as people who express a gender identity, maybe straight, lesbian, gay, bisexual, or asexual, just as people expressing what we call heteronormal designations may be as well.
To understand where we are, it's important to understand what came before. Title VII has always made it improper, and in most cases, illegal to stereotype people on the basis of gender. That's the definition of sex in Title VII, which all of us up until the Supreme Court's decision in Bostock were debating. Prior to Bostock, the seminal case was the 1989 Supreme Court case in Bryce Waterhouse v. Hopkins, 490 U.S. 228 . There the Supreme Court had a case of a woman, Ms. Hopkins, who was not promoted by the accounting house, Bryce Waterhouse, accounting firm. The reason for Ms. Hopkins's failure to rise in the ranks is that many of her managers thought she acted too masculine for a female, dressing in suits instead of skirts and refusing to accept subordinate roles on team projects. As a result, Ms. Hopkins was unable to succeed beyond a certain point at the accounting firm. And she sued the Supreme Court in ruling in her favor, found that Title VII protected people against stereotyping individuals based on their failure to dress or act in a way that comported with traditional gender notions.
At the time, this was a positive, progressive decision. However, while Hopkins expanded the type of conduct prohibited under Title VII, for almost two decades after the ruling, the court continued to limit the reach to employees who were discriminated against for failing to comport with traditional gender roles rather than those employees harassed or victimized for expressing their gender identity. What did that mean? For a time, prosecution of workplace discrimination claims involved gay, lesbian, and transgender employees, having to modify their lawsuit to claim that they were discriminated on the basis not of their gender identity, but that they failed to conform to some aspect of their employers' heteronormative view of how they should dress or act in the workplace. In other words, people were suing because they claimed that they acted too masculine if they were feminine or female employees. And they claiming that they were discriminated against because they acted too subordinate, if they were male employees. That wording is from case law. In order to bring a gender identification claim, employees had to rely upon state statutes and a patchwork of county ordinances to redress employment discrimination claims based on gender identification. This meant that it depended on where you lived or where your employer was located to know whether or not you could actually bring a claim on the basis of gender identification, discrimination.
Starting in the 2000s, some federal courts began to recognize that employees transitioning between male and female physical roles could face unlawful discrimination in the workplace. For example, in 2005, the Sixth Circuit in Barnes v. City of Cincinnati found that the termination of a transitioning employee violated Title VII. Similarly, in Glenn v. Brumby, the 11th Circuit found that termination of a transitioning employee violated the equal protection afforded by the U.S. Constitution. These were not Title VII traditional claims, as we thought about it. And for a time, it only covered people who were transitioning, meaning physically altering their bodies to present from male to female, or female to male. This still left many employees with no redress for harassment or ill treatment based simply on their gender identification without a transitioning experience. Many employers lost people in this time because of antiquated and stereotypical experiences that gender fluid employees had in the workplace.
That brings us to Bostock. How did we get there? So Bostock is a decision which combined three cases, Zarda, Bostock itself, and EEOC, the R.G. & G.R. Harris Funeral Homes. While Zarda and Bostock brought claims that Title VII should protect gay employees from being discriminated in the workplace, the EEOC, or R.G. & G.R. Harris Funeral Homes case involved the appeal of a decision by the Sixth Circuit, which found that the Funeral Homes's decision to terminate a transitioning managerial employee, Aimee Stephens, transitioning from male to female, violated Title VII. The underlying lawsuit can be found at 884 F.3d 560 . In reaching its decision, the majority of the Supreme Court found that a violation of Title VII occurs when an employer fires an employee simply for being homosexual or transgender, because the employer is firing that person for traits or actions, it would not have questioned in members of a different sex. Since sex plays a necessary and undisguisable role in the decision, that violated Title VII, according to Justice Gorsuch's decision.
Although the majority agreed that sexual orientation and gender identification are distinct concepts from sex, have found that necessarily discrimination based on those concepts fall within the broad and sweeping prohibitions contained in Title VII's language, preventing "all forms of discrimination because of sex." However, they manifest themselves, or what other other labels might attach to them. Although Aimee Stephens died prior to the case reaching the Supreme Court, her estate continued to prosecute the action with the assistance of the EEOC, following the Supreme Court's Bostock decision. The Funeral Home settled for $250,000 in late 2020, which included back pay to the estate attorney's fees, as well as requiring the Funeral Home to revise its anti-discrimination policy and its anti-discrimination training. What the Supreme Court decided in Bostock, which was somewhat different than the Paula Hopkins case is that people who present themselves as transitioning between male and female identification can be discriminated against even if they don't or not engaged in an actual medically transformative process.
Instead, the Supreme Court determined that the issue is whether or not in reaching an employment decision, whether to hire, promote, or terminate, an employer impermisibly uses somebody's gender identification as part of the reason to terminate that employee. Understand, according to the Supreme court decision, the question is whether or not gender identification or gender orientation was the but-for cause of the employer's decision. If it is the but-for cause, meaning if we changed and took out that issue, the employer would've reached a different decision, then discrimination under Title VII has occurred on the basis of gender identification or gender identity, and that violates federal law. There are however limitations in the application of Title VII. Title VII only applies to employers with 15 or more employees. So while Bostock recognizes that discrimination based on gender identity is unlawful under federal law, employees of small employers, right, small companies, may still need to rely on state laws and local ordinances to bring discrimination claims. This is true for private and public employees who work for state and local government units that have less than 15 employees.
In addition, Title VII does not apply to tribal nations. It does, however, apply to private employers operating on tribal reservations, again who have 15 or more employees. Finally, Title VII allows for religious institutions to restrict employment based upon primarily religious grounds or to imply a ministerial exception that bars certain employment discrimination claims. For example, a Catholic priest who decided to transgender probably does not have a cognizable discrimination claim under Title VII, if the parish was to remove him as a religious instructor. Bostock left open the question as to whether or not outside of actual religious institutions? So colleges or day schools set up by a religious institution or a religious institution itself, such as the Catholic church, could exempt itself from a discrimination claim under Title VII, based upon a sincere religious belief period. The Bostock court recognized that an employer discriminates against homosexual and transgender employees necessarily intentionally applies sex-based rules in reaching their decision, in violation of Title VII.
However, Justice Gorsuch's opinion recognized that first amendment and claims under the Religious Freedom Restoration Act of 1993 might, this is the quote, "might supersede Title VII's commands in appropriate cases." The Supreme Court recognized that none of those cases were presented on appeal. Although the R.G. & G.R. Harris Funeral Homes had sought protection under the Religious Freedom Restoration Act in the underlying case, on appeal, it declined to seek review of the underlying decision, rejecting that claim as to Aimee Stephens. And, therefore, the issue was not before the Supreme Court. Whether or not the Supreme Court will take that up in a session, in the future, remains to be seen, but cases continue to be brought and defenses continue to be raised by employers based on the Religious Freedom Restoration Act.
Despite the Bostock decision, it's unfortunate that individuals continue to experience discrimination in hiring, promotion, and discipline, because of their gender identity. It's for this reason that employers need to be vigilant in enforcing a workplace mutual policies, which do not take into account or utilize factors such as race, ethnicity, religion, or gender identity to make employment decisions. For example, on August 13th, 2021, the Appellate Court of Illinois upheld the decision by the Illinois Human Rights Commission under the Illinois Human Rights Act, that Hobby Lobby had discriminated against a longtime employee transitioning to female by prohibiting her from using the women's restroom at the store. Whether or not this case will be appealed to the Supreme Court is still a question. For those of you who recall, Hobby Lobby successfully appealed to the Supreme court, claiming its religious freedom rights were being impinged by having to provide employees with contraceptives as part of healthcare. On September 29th, 2021, Olivia Hill, a 25-year employee at Vanderbilt University for a lawsuit alleging discrimination following her transition surgery that had occurred in May, 2019, the lawsuit itself details a series of harassment, both verbal and intimidation, as well as a violation of Vanderbilt's gender affirmation toolkit for Vanderbilt employees, regarding the use of pronouns and anti-harassment policies among other things.
Finally, the Bostock decision did not change the requirements for establishing a discrimination claim under Title VII. Employees alleging discrimination on the basis of gender identity must still set forth a viable claim. A good example of this is Olivarez v. T-Mobile USA. It's a slip opinion from the Fifth Circuit, from May 14th, 2021. There the Fifth Circuit determined that Bostock still requires gender identification plaintiffs to meet the same burdens as other plaintiffs who claim sexual discrimination or sex discrimination. In affirming dismissal, the Appellate Court found that the plaintiff had failed to quote alleged facts sufficient to support an inference of transgender discrimination. That is that T-Mobile would've behaved differently towards an employee with a different gender identity. Although the plaintiff had sought leave to engage in activities and keeping with their transgender status, T-Mobile was not required to allow them indefinitely above that granted to other employees, according to the court. Instead, the court said that plaintiff could not identify that treatment received by the employee was less favorable to other similarly-situated outside of the protected class. In Olivarez, the plaintiff had sought additional leave beyond that provided by the Family Medical Leave Act, following their transition surgery in order to accommodate their new gender identity. While the employer offered certain accommodations early in the process, at some point it required the employee to return to the workforce. And when the employee refused, Olivarez was terminated. The Fifth Circuit in reading Bostock determined that Olivarez was still required to identify discriminatory conduct, which, allegedly, the employer engaged in solely because of their transgender status. Finding that the employee had failed to meet that burden, the Fifth Circuit affirmed dismissal of the allegations. What this means, obviously, for employees bringing a claim is that they not only have to determine or allege that they were discriminated against or harassed in violation of Title VII or an employer policy, but that the actions engaged in would not have occurred if they had a different gender identity. In addition, the traditional Title VII defenses to an employer are still available in a transgender or gender identity claim, meaning that if the employer takes a legitimate employment action without reference to or consideration of gender identity, for the most part under most circumstances, the employer's neutral employment decision should carry the day. This is because courts have made it clear that they are not in the business of second guessing employers' employment decisions taken on legitimate basis.
Obviously, to the extent that the employer engages or their supervisor or other employees engage in harassment, that will not necessarily mean that the employee does not have a claim. Take for example, an employee who transitions from female to male and claims that upon their return from the workplace, they were subject to harassment. This harassment could take the form that individuals continued to refer to the employee from her previous life as her or miss, as opposed to their new gender male identification. As a result of the harassment, the employee feels they were constructively discharged and brings a claim. During the course of the investigation, however, it's determined that the employee was actually embezzling from the company. I realized this is a rather extreme example, but in that case, the courts are likely to find that the employer's decision to terminate the employee or that employer had legitimate grounds that had nothing to do with the transitioning experience or status of the employee would be enough to void a discrimination claim.
So what does this mean for employers? How can employers make sure that their workforce policies have adapted to the new post-Bostock world?
There's a couple of good documents which have been put out by the federal government, which I am going to reference, are in the reference material that provide good templates for an employer or an HR department looking to modify their policies. One of the first places to look is Executive Order number 13988, which can be found at 86 CFR 7023. It's a January 20th, 2021 Executive Order issued by President Biden on preventing and combating discrimination on the basis of gender identity and sexual orientation, committing the federal government to promote equal opportunity in employment and preventing discrimination on the basis of gender identity. The executive order contains a good set of starting points for developing an anti-harassment policy. It recognizes that discrimination on the basis of gender identity often manifests differently for different individuals. And it often overlaps with other forms of prohibited discrimination, including discrimination on the basis of race and disability. In looking to enforce prohibitions, the President identified that each agency should create a set of policies applicable to hiring, promoting, orientating, and evaluating employees in order for it to be consistent with federal law.
The next policy that should be looked at is the EEOC guidance document, Protection Against Employment Discrimination Based on Sexual Orientation or Gender Identity, OLC Control number NVTA-2021-1 from June 15th, 2021. The document contains guidelines to assist employers who desire to implement anti-harassment programs in conformance with the Bostock decision. The guidelines address issues such as dress codes, bathroom assignments, interviews for employment, and other programs administered by an employer in order to help make sure those decisions and policies conform to the Bostock decision and are free of areas with harassment. For example, in reaching a decision about dress codes, the EEOC provides guidance that employers should not simply require traditional heteronormative selections for employees based on either their gender identification from birth or a gender identification that they have selected for themselves.
Instead, employers should set a dress code that says employees are welcome to wear certain types of clothing, regardless of sex or sexual orientation, in the workplace. Employers are still allowed to ban certain types of clothing, should they require it or require certain type of clothing to be worn for particular jobs. For example, employers at a law firm may still require that employees of all gender and gender identification not wear shorts, flip flops, tank tops, muscle shirts, or display piercings in the naval or other regions, and that would be appropriate dress code policy. What would not be appropriate dress code policy is to suggest that only women, or those identifying as women, were entitled to wear pierced ears and everyone else in the workplace could not. Similarly, if Burger King or McDonald's required that all employees who worked the grill were required to wear a hair net to keep their hair in check, regardless of gender identification, that requirement for employment would not violate the Bostock decision.
Moreover, the EEOC guidance document makes clear that employers are not free to discriminate on the basis of an alleged customer preference. Why is this important? One of the things that the R.G. & G.R. Harris Funeral Homes attempted to argue was that clients of the Funeral Home would be taken aback by Mrs. Stephens's transition during a time in which they were burying a loved one or making arrangements to bury or have a funeral arrangement for their loved one. And, therefore, they terminated Mrs. Stephens, formerly Mr. Stephens, but Mrs. Stephens, because Aimee Stephens was no longer able to perform the important role for which she had been hired. The Sixth Circuit rejected that claim and the Supreme Court refused to address that claim. And the EEOC has taken the position that regardless of whether a customer prefers a heteronormative employee to provide customer service to them, that is not the basis by which an employer could move a transitioning or gender fluid employee from dealing with customers or being assigned to another job.
Impractical experience, take a car rental company. For purposes of this, I will use Avis. Avis has a counter service person who is male but dresses in drag. Avis would not be able to transition that particular employee to a backroom function at the rental car facility, simply because they're worried that customers might be put off by the employee's appearance, mannerisms, or orientation period. As we talked about before, however, the employer, Avis, could require that employee to wear a company shirt that it supplies to all employees, regardless of gender identification. If the employee refused to wear the employer's correct dress code, they could be terminated, but they can't be terminated because they're in the appropriate clothing as assigned by the employer and they choose to display some portion of their gender identification. For example, men wearing mascara or false eyelashes is not a terminable or removable offense. And if that was the basis upon which the employer engaged in conduct, it is likely that that would be seen as a violation of the EEOC guidance document and the Bostock decision.
Another place to look is the Department of Labor's Office of Assistant Secretary for Administration and Management, which issued a policy and gender identification under rights and responsibilities. Obviously, the DoL policies only applied to those working for, or applying to work for the Department of Labor. However, it provides some good guidance to employers seeking to articulate responsibilities of managers and supervisors, for implementing anti-harassment policies addressing gender identification. I'm gonna pause for a second to reiterate what I started saying in the beginning. One of the reasons that this program exists, and one of the reasons that employers are grappling with this issue is because many employees at all levels, managers, supervisors, coworkers, have as part of surveys indicated that one of the most difficult or the thing that's uncomfortable for them is having a coworker who is transitioning. It's because of that, that employers need to be extra vigilant in making sure that there are not violations of their anti-harassment or anti-discrimination policies when they have an employee who is gender fluid, is experimenting with their gender identification, or has gone so far as to have transition surgery. Finally, the Office of Personal Management, or OPM, issued guidance, which is also in the material. It's guidance regarding the employment of transgender individuals in the federal workplace. I recommend its reading because it's helpful about how to address some of the insidious complaints that often are found in the workforce once an employee transitions. That leads us to actual policies and procedures.
So I know from experience that one of the most difficult policies for employers to grapple with is how to deal with restroom and dressing room issues. Before we get there, though, I want to talk in general about employer policies, training, and responsibilities.
It starts with training supervisors, in my view. When supervisors are trained to recognize complaints, which really are based on gender fluidity or gender identification, rather than a employment neutral policy, this allows employees themselves to express gender identification in the workplace and to thrive. It also allows supervisors to provide early intervention that will avoid some of the more serious issues that often lead to successful discrimination claims on behalf of employees who are the victims of coworker discriminatory conduct or hazing. Studies show that many employees refrain from expressing their ideal gender identification over concerns for their job or job advancement. Studies also show that employers who embrace diversity and equity programs increase productivity, even in the initial implementation stage. That's even when the implementation stage itself is a strained experience for the employees and the employer. For purposes of this conversation, it's important to recognize that expressing inclusivity and the acceptance of diversity begins with the application process, continues to recruitment, retention, promotion, and the handling of benefits.
There are certain general themes. Many employers have recognized that employees should be able to select the pronouns and names which are consistent with their gender identity. For example, not listening choice on company documents, traditional him/her, Mr., Ms., but in bracing terminologies like they, them ze, zir, zem, and x. This is not to say that employers need to have a whole panoply of ways that they address their employees, but being open to expressions of gender identity in the way that we ask for the appellation of our surname or the designation in documents is important. The EEOC guidance document notes that the continued misuse of gender choices in applications may itself be a form of unlawful harassment. Reviewers and those interviewing applicants need to be prepared to use gender neutral or gender inclusive terms to conform to the mode and address used by the applicant. For example, Lusardi v. Department of the Army, EEOC Appeal Number 0120133395. The accidental misuse of an employee's preferred name does not violate Title VII, but repeated and intentional using the wrong name and pronouns could contribute to a hostile work environment. Go back to my example earlier in this talk, somebody who transitions from female to male, but is continued in company documents to have their prior female name used or to be addressed as Ms. when clearly they've transitioned to male could be seen as a form of hostile work environment and grounds for a lawsuit.
Previously, we talked about the dress code. the EEOC guidance document referenced before notes that a dress code that overrides an employee's gender identification is a form of unlawful discrimination. This has been this case for the last decade, according to the EEOC and predates Bostock, but with the Bostock decision, the EEOC has indicated that it is providing new scrutiny on employer's dress code decisions. The old case is Macy v. Department of Justice, EEOC Appeal Number 0120120821. Restrooms and dressing rooms are clearly the issue that gets the most publicity, but it is often the case that it can be a positive experience through education and diversity training. The Occupational Safety and Health Administration has issued guidance that employers should use with regard to facility selection that corresponds with their gender identity. See OSHA best practices, a guide to restroom access for transgender workers.
Often time, the use of gender neutral bathrooms or gender neutral dressing rooms can be a good place to start. For those employers who have limited facilities, setting a schedule that allows people to be comfortable, both for the employees who need to change and the supervisors who need to supervise is a good place to start. I recognize that bathrooms and dressing rooms, like locker rooms and other places, often are places where people are uncomfortable to begin with, whether or not you throw in a question of gender fluidity or gender identification. Unfortunately, dressing rooms, changing rooms, especially with body type discrimination, is an area that could be the subject of another discussion. It is important for employees and employers to have frank conversations with their workforce to map out an appropriate compromise that allows work to be performed and employees to feel comfortable. Training, listening, communicating are tools that employers need to dust off and use to make sure that they are addressing appropriately gender identification issues in their workplace. Training means that employers must embrace training materials and workshops that lower barriers to allow for acceptance, and in some cases, overcome outright hostile from coworkers. Positive reinforcement and company documents, online presence, announcements, finding ways to raise the issue in a positive manner, all can have a bottom-line positive impact on workplace productivity and inclusiveness.
As I mentioned before, in my view, managers and supervisors are the key to implementing, enforcing, and helping to create an inclusive workspace. Employers who allow their managers and supervisors to communicate clear expectations for respect regarding gender identification and clear direction to employees by using inclusive language or gender neutral language in company publications, or handbooks, or in directives or in meetings, goes a long way to allowing your gender fluid employees to not only be comfortable in the workplace, but to provide positive work experience and a place that will attract other workers when they feel that there's an employer who has a facility that is accepting and open to inclusivity. I can't stress that enough. Younger employees coming out of college now, millennials, gen Z, the new names for what they call themselves, are looking for places in which gender fluidity is not only accepted, but supported, embraced, and celebrated because that has been their experience in education, and in college. And they are looking to be part of a workplace where they're friends who are gender fluid, even if they are not, can find acceptance. Supervisors need to step in early when employees engage in derogatory or harassing conduct just as if they would when the conduct is directed to race, ethnicity, religion, or national origin.
Finally, it's important that, as in other areas, to avoid discrimination and avoid a lawsuit that employers have policies in place for employees to report incidents of harassment, discrimination, and that employers are committed to investigation of those claims, as in the same manner as other discrimination claims, in order to avoid an unnecessary and potentially costly lawsuit.
Thank you very much for your time. I hope some of this has been helpful. I hope that the employers you work for find ways to embrace gender-fluid employees and their supporters who are going to be the workplace of the future. My name is Aaron Tandy, and I thank you for listening. Have a good day.