Transgender Employee Advances Title VII Claims Based on Sex, Gender Identity, and Gender Expression 2020-01-22T18:33:04-07:00

Posted on January 22, 2020

A former employee who transitioned to female during her employment brought claims of hostile work environment, discriminatory termination, and retaliation under Title VII. The complaint alleged multiple instances of coworkers and third parties refusing to call her by her preferred pronouns and female name (purposefully misgendering her), and expressing disapproval of her wardrobe choices at work. The plaintiff allegedly complained to her supervisors and was discharged several months later. Defendants moved to dismiss the complaint for failure to state a claim.

The U.S. District Court for the District of Maryland dismissed the plaintiff’s claim of hostile work environment, with permission for the plaintiff to restate that claim with more specific information about who misgendered her and when. The plaintiff has a diary that documents 35 specific instances of discriminatory treatment, but she failed to spell out the details in her complaint. The court allowed the plaintiff’s claims of discriminatory termination and retaliation to proceed.

Whether Title VII prohibits discrimination on the basis of transgender identity is an issue pending before the Supreme Court of the United States, and here, the District Court left room for the Supreme Court’s decision to guide the case as it proceeds. But, in practice, discrimination on the basis of transgender identity may already be barred by state and local laws. Employers should take measures to ensure all employees are treated respectfully by their supervisors, coworkers, and third parties. Train your employees to avoid improper sex stereotyping, misgendering, and similar conduct that could give rise to a discrimination claim.

Milo v. Cybercore Technologies, LLC, Case No. SAG-18-3145 (D.C. Md. Jan. 13, 2020).

Policing Gender Stereotyping 2019-11-08T10:15:56-07:00

Posted on November 8, 2019

By Alyssa Levy

A jury awarded a sergeant of the St. Louis County Police $19.9 million for his sexual orientation discrimination and retaliation claims in state court. Keith Wildhaber v. St. Louis County, Missouri, No. 17SL-CC00133 (Mo. Cir. Ct. 21st Cir. October 25, 2019). The plaintiff said the police department passed him over for promotion 23 times, and transferred him from his afternoon shift to an overnight shift at a precinct nearly 30 miles from his home. The plaintiff received “advice” from a Police Department board member to “tone down the gayness” in order to receive a promotion, and senior commanders referred to the plaintiff as “fruity.”

For the discrimination claim, the jury awarded $1.98 million in actual damages and $10 million in punitive damages. For his retaliation claim, the plaintiff received $999,000 in actual damages and $7 million in punitive damages. The County will likely appeal the damage award, but the jury’s message broadcasts loud and clear: discrimination based on gender stereotyping in today’s work environment is appalling.

The extraordinary damages award in Wildhaber is based on the U.S. Supreme Court decision on gender stereotyping in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Price Waterhouse passed over Ms. Hopkins for promotion and told her she needed to “walk more femininely, talk more femininely, dress more femininely, wear makeup, have her hair styled and wear jewelry.” The Court held that gender stereotyping is a form of sex discrimination.

Thirty years later, there is still a fight at the federal level to define sex discrimination under the law. On October 8, 2019, the Supreme Court heard three cases on the issue of whether sexual orientation and gender identity should be covered by the existing federal ban on “sex discrimination” under Title VII. These cases are Altitude Express v. Zarda, Bostock v. Clayton Cty., Ga, and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC. If the Supreme Court holds that it is lawful to discriminate against gay or trans workers, it could upend the 30-year-old rule against gender stereotyping.

Is “Employee” Written in the Cards? 2019-07-26T13:45:55-06:00

Posted on July 26, 2019

By Alyssa Levy

A federal jury will decide whether a tarot card reader who performed at the Colorado Renaissance Festival for thirty years is a Title VII employee for purposes of her retaliation claim. Plaintiff claims that she was not invited back for the 2016 season in retaliation for her complaint of sexual harassment.

Plaintiff’s lease agreement with the Colorado Renaissance Festival, through which she leased a space for her palm and tarot carding reading booth, contained a provision titled “Independent Contractor Status,” where she acknowledged she was not an employee of the Festival. The Colorado District Court, however, looked at the actions of her engagement with the Festival and found that her employee status is a question for a jury. In deciding to deny the Festival’s summary judgment motion, the court first looked at whether the Festival was an employer and then whether the Plaintiff was considered an employee, both under Title VII.

Festival as an employer: Title VII defines “employer” as “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.” Although the Colorado Renaissance Festival alone may not have the requisite fifteen employees, it is an integrated enterprise with the Pittsburgh Renaissance Festival, and the two combine to likely meet the requirement of a Title VII employer. The court noted the two festivals shared a payroll software license, website and ticket design, employment applications, vehicles, and employees, from which a jury could find the companies to be an integrated enterprise.

Plaintiff as an employee: To determine an individual’s status as a Title VII employee, the court used the Tenth Circuit’s “hybrid test,” to determine whether Plaintiff was truly an independent contractor, with the main focus on “the employer’s right to control the ‘means and manner’ of the worker’s performance.” The court first found it undisputed that the festival did not pay Plaintiff any direct compensation (no salary or hourly wage), and so, the court looked to the “threshold-remuneration test” for other direct or indirect benefits Plaintiff received from the Festival. The court found that the Festival was the ultimate source of her income because the Festival controlled Plaintiff’s access to customers who paid a fee for her services at the booth, which was evidence of direct or indirect benefits received by a Title VII employee.

The positive outcome of the threshold-remuneration test was in addition to the employment relationship a reasonable jury could conclude existed based on the level of control the Festival exercised over Plaintiff’s work. The Rules of Plaintiff’s lease agreement governed the specific hours to staff her booth; fines for closing without permission during inclement weather; her manner of speech, decorum, hairstyle, covering of tattoos, and performance; goods or services sold; equipment she could use; pre-approval for booth changes; discipline for violating festival Rules; advertising of her booth; and other terms.

The court’s analysis found enough evidence to survive summary judgement for the retaliation claim, but it is still up to a jury to determine whether the tarot reader will be dubbed an employee. Businesses that dictate the terms of a contractor’s independent work need to beware of being found to be an employer. This applies even when the contractor has to fit the theme of the workplace—here a renaissance village.

St. Michael v. Rocky Mt. Festivals, Inc., Civil Action No. 1:16-cv-02969-SKC, 2019 U.S. Dist. LEXIS 114040 (D. Colo. July 10, 2019).

Landmine in the Eleventh Circuit 2018-09-25T16:07:07-06:00

Posted on September 25, 2018

By Joe Hunt

When Kia discovered that its human resources manager had encouraged an employee to file a charge of discrimination, Kia discharged the HR manager. Kia decided it could not trust the HR manager to do her job, specifically, to refer employees to the internal complaint system, protecting Kia from litigation. The HR manager sued for retaliation, asserting that Kia fired her because she had engaged in protected activity under Title VII.

The district court granted summary judgment in favor of Kia, but the Eleventh Circuit reversed. The HR manager’s deviation from Kia’s internal procedures and her support for the employee’s filing a charge could have been a violation of the HR manager’s job duties. In this case, however, the HR manager had tried to use Kia’s internal procedure for addressing complaints of discrimination, and the procedure had proven insufficient. Thus, the court found it was arguably reasonable for the HR manager to encourage the complaining employee to file a charge.

A dissenting judge called the decision a “landmine” for employers. An HR manager cannot work to resolve complaints internally while also urging coworkers to file lawsuits. But the decision may be more of a pitfall than a landmine. Kia’s responses to the HR manager’s internal referrals were (allegedly) so inadequate that they warranted the HR manager evading the internal system altogether. This was the HR manager’s saving grace on appeal.

Employers’ internal reporting and investigation procedures have to work. Otherwise, all employees, even HR employees, would be justified in going straight to the EEOC.

The case is Gogel v. Kia Motors Manufacturing of Georgia, Inc., Case 3:14-cv-00153 (11th Cir. Sept. 24, 2018).

Second Circuit Rules Title VII Protects Sexual Orientation 2018-02-27T14:46:09-07:00

Posted on February 27, 2018

By Bill Wright

The Second Circuit joined the Seventh Circuit and the EEOC in ruling that Title VII protects individuals from discrimination based on sexual orientation. Zarda v. Altitude Express, Inc., No. 15-3775 (2nd Cir. February 26, 2018). The Second Circuit agreed with the Seventh that the law evolves. The court ruled that, even if the authors of Title VII never intended to protect people from discrimination based on sexual orientation, (a) the text of the statute says that employers may not discriminate “because of sex” and (b) discrimination on the basis of sexual orientation is, necessarily, logically, and as a result of “operationalizing” definitions, discrimination because of sex. The court relied on the EEOC’s 3 bases for its position – sexual orientation is defined by one’s sex, sexual orientation discrimination is sex stereotyping, and sexual orientation discrimination is discrimination based on a person’s association with others of the same sex.

The court’s opinion is laced with judicial views concerning the nature of law, the meanings of statutory terms, and the logic of relationships. Consequently, the issue seems headed for the Supreme Court, where we can expect a re-chopping of all its conclusions. In any case, the court took no position on whether statutory exceptions in Title VII or the Religious Freedom Restoration Act might immunize religious employers. So, we will see plenty more philosophical debate about sex in the lower courts too.

When Work and Faith Collide 2018-01-19T16:30:05-07:00

Posted on January 19, 2018

By Joe Hunt and James Korte

When it enacted Title VII of the Civil Rights Act of 1964, Congress stated a desire to assure individuals additional opportunities to observe religious practices when they conflict with employment. But what does it mean that, short of an undue hardship, employers must make ‘reasonable accommodations’ for the religious practices of their employees? In Tabura v. Kellogg USA, No. 16-4135, (10th Cir. Jan. 17, 2018), the Tenth Circuit affirmed that the answer inevitably requires a fact-specific, case-by-case analysis. Because of the fact-specific nature of such claims, the employer in this case could not win on summary judgment, and the case must proceed to a trial.

At Kellogg’s plant in Clearfield, Utah, the company divided its workforce into shifts of ‘continuous crewing.’ Employees were required to work every other Saturday. While Kellogg permitted employees to swap shifts or take accrued paid time off for absences, the shifts conflicted with two Seventh Day Adventist employees’ practice not to work from sundown on Friday through sunset on Saturday. They sued the company because Kellogg assessed disciplinary points against them for observing the Sabbath. At the outset, the Tenth Circuit firmly rejected the notion that, to be reasonable, an accommodation must “eliminate” the conflict between employees’ religious practice and work requirements. However, because accommodation questions are fact-specific, a jury trial was necessary to determine the reasonableness of the employer’s accommodations. This case is another reminder that even even-handed “neutral” policies may need to give way to accommodations of employees’ religious beliefs.

Road to Lawsuit Paved with Good Intentions 2017-12-04T12:01:51-07:00

Posted on December 4, 2017

By Chance Hill

A federal district court in Alabama recently denied summary judgment to an employer in a Title VII pregnancy discrimination claim. The employee, a pregnant nurse working at a home for intellectually disabled individuals, was removed from a work schedule after revealing her “high-risk” pregnancy to her supervisor. The employee and her supervisor butted heads when the employee explained that she could not attend medication distribution training during her days off due to doctor’s appointments concerning her high-risk pregnancy. Soon thereafter, the supervisor expressed concerns about the employee’s high-risk pregnancy and spoke of risks to the unborn baby as well as patients. After the supervisor refused to permit the employee to dispense medications, which drastically limited what shifts she could work, the employee filed suit. When the employer moved for summary judgment, the court pointed out that the employer itself provided direct evidence of pregnancy discrimination—the employer admitted that its management removed the employee from the work schedule because of the high-risk conditions of her pregnancy. That the employer “may have done this out of benevolent concern for the health and safety of the nurse and her unborn child does not excuse the discriminatory nature of its actions,” noted the court.

In other words, employers need to be wary: Even the best of intentions may result in unlawful behavior. Carter v. A & E Supported Living, Inc., No. 16-00574-N, 2017 U.S. Dist. LEXIS 195838, at *1 (S.D. Ala. Nov. 29, 2017)

Attorney General Nixes Title VII Gender I.D. Protection 2017-10-05T11:29:33-06:00

Posted on October 5, 2017

By Brooke Colaizzi

Attorney General Jeff Sessions informed U.S. Attorneys and federal agencies on Wednesday that Title VII does not protect gender identity as a status. Noting that the position was a “conclusion of law, not policy,” Sessions announced the Department of Justice’s conclusion that under statute, discrimination because of gender identity or transgender status is not discrimination “because of sex.”

Sessions did acknowledge that Title VII may provide protection to transgender individuals in certain circumstances, likely referring to claims based on a “sex stereotyping” theory. Sex stereotyping claims are usually based on allegations that an individual was discriminated against for failing to conform to traditional notions of male or female behavior or appearance.

The Department of Justice’s conclusion reverses the position taken in recent years by the Obama Administration, the EEOC, and an increasing number of federal courts. As many of us first address gender identity claims in charges brought before the EEOC, we will watch with interest to see how the EEOC responds to Sessions’ pronouncement.

EEOC Ain’t Over ‘Til It’s…Forever 2017-09-13T11:06:45-06:00

Posted on September 13, 2017

By John Alan Doran

The Seventh Circuit recently condoned an EEOC practice that dramatically inhibits the private settlement of employment discrimination lawsuits.

Two Union Pacific employees filed an EEOC charge. The EEOC provided a Notice of Right-to-Sue, and the employees filed a federal lawsuit alleging harassment, discrimination, and retaliation. The employees’ lawsuit was later thrown out by the judge for lack of evidence. However, while the lawsuit was pending, the EEOC issued a separate administrative subpoena to Union Pacific, which it sought to enforce for the matters being litigated in the employees’ lawsuit in federal court. Union Pacific objected, arguing that the EEOC’s enforcement authority was terminated either when it issued the Notice of Right-To-Sue, or when judgement was entered against the two claimants in their federal lawsuit.

The Seventh Circuit rejected both of Union Pacific’s arguments. The court concluded that nothing in Title VII prevents the EEOC from investigating a charge after issuing a Notice of Right-To-Sue or even after a civil lawsuit on the same subject matter has been disposed of.

The message to employers: Even if you WIN a case in federal court against a charging party, you may still be whipsawed by the EEOC. This is also true with respect to settling an EEOC charge with an individual. This creates a perverse disincentive for employers to settle charges and lawsuits, since such settlements do not buy absolute peace of mind.

EEOC v. Union Pacific RR Co. https://dlbjbjzgnk95t.cloudfront.net/0954000/954665/rssexec.pdf

Don’t Quarrel Over Scripture 2017-06-13T10:30:04-06:00

Posted on June 13, 2017

By Bill Wright

The Fourth Circuit Court of Appeals recently upheld a jury verdict in favor of the EEOC in a Title VII religious discrimination claim. At issue was the use of a biometric scanner as a time clock. EEOC v. Consol Energy, Inc. et al., No. 16-1406 (4^th Cir. June 12, 2017) The employee objected that allowing the company to scan his hand – either hand – would result in his receiving the Mark of the Beast. (See Revelation 13:16-17.) The company provided the employee with a prepared interpretation of the Book of Revelation from the manufacturer of the biometric device. The manufacturer explained (1) the device left no mark, or “Mark,” and (2) employees could safely use their left hands as the Beast would Mark only a person’s right hand or forehead. The company therefore insisted that the employee scan his left hand. Oh, of course, employees with injured hands could just input their employee number, but the company did not offer – in an internal email, actually refused – to offer this accommodation to the religious dissenter. The company threatened discipline if he did not scan one hand or the other; and the employee resigned under protest.

Apparently the scriptural disagreement and evidence related to constructive discharge were the main themes of the trial. There was no disagreement over the sincerity of the employee’s belief, only over whether he was right.

It seems elementary, but a U.S. court is not going to rule, or instruct a jury to determine, authoritative interpretations of scripture. As an employer, don’t get into a dispute of biblical proportions over a simple timekeeping accommodation. If it had been anything more than de minimis, Title VII would not have required the employer to provide the accommodation.