10/26/2015

Call Me Claimant?

Understanding transgender employee discrimination claims and legal developments.

By Storrs Downey , Maital Savin

The transgender community has received significant media attention this past year. A number of television shows—among them, Orange Is the New Black and Transparent—illustrated some of the issues faced by members of the transgender community. Recently, Olympic gold medalist and reality star Bruce Jenner told the world during a televised interview with Diane Sawyer that he is a transgender woman. Unfortunately, there also have been a number of headlines regarding transgender teen suicides, which occur at significantly higher rates in transgender teens than the remainder of the teen population.

Beyond mere media attention, there is a growing trend to protect the rights of transgender individuals. The U.S. Supreme Court’s recent landmark decision in Obergefell v. Hodges, which requires all states to recognize same-sex marriage, added further momentum in efforts to expand protection for members of the LGBT community, which includes transgender individuals. The growing movement to expand protection for transgender employees can be seen in recent action taken by a number of federal agencies and courts.

In the past year, the Equal Employment Opportunity Commission (EEOC), the federal agency that administers and enforces civil rights laws against workplace discrimination, has taken an aggressive stance when it comes to discrimination against transgender employees. It filed its first two lawsuits relating to alleged sex discrimination against transgender employees in late 2014 and a third lawsuit in mid-2015.

EEOC Litigation

The EEOC’s first suit filed in federal court was against Lakeland Eye Clinic, which it settled in April 2015. In that case, Brandi Branson began working for Lakeland dressed in traditionally male clothing and used the name Michael. Approximately six months later, she started to wear makeup and traditionally female clothing. Branson alleged that coworkers snickered, rolled their eyes, and would not interact with her because of her transition. She claimed that her bosses confronted her in a meeting regarding her appearance, at which point Branson advised Lakeland that she was in the process of transitioning from male to female and would be changing her name to Brandi. Two months later, Lakeland advised Branson that her position was being eliminated. However, Lakeland hired another employee to perform a similar role.

The EEOC took the position that Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, religion, sex, or national origin, also prohibits discrimination against transgender employees. The EEOC asserted this position based on its earlier opinion in Macy v. Holder, which held that transgender discrimination is a form of sex discrimination under Title VII. (While the EEOC’s opinions can be looked to for guidance, they are not binding on any court).

On the other hand, Lakeland took the position that Title VII does not apply to transgender discrimination claims. The settlement reached between the parties required Lakeland to pay $150,000 to Branson for back pay and other damages (including emotional distress); adopt and implement a transgender anti-discrimination policy; and have its managers and employees undergo anti-discrimination training.

The EEOC’s second suit, against R.G. & G.R. Harris Funeral Homes Inc., is ongoing. In this case, after working for R.G. for six years, Aimee Stephens advised R.G. that she was in the process of transitioning from male to female and planned to present as female. Shortly thereafter, R.G terminated Stephens because “what she was proposing to do was unacceptable.” In April 2015, a district court denied R.G.’s motion to dismiss. Notably, the court rejected the EEOC’s position that gender identity was protected under Title VII but allowed the case to proceed on a theory of “sex stereotyping” under Title VII.

The EEOC recently filed a third suit, which also is ongoing, against Deluxe Financial Services Corp., alleging that Deluxe discriminated against Britney Austin, a transgender employee, because of her transgender status, in violation of Title VII. Austin had worked for Deluxe satisfactorily for a lengthy period, presenting as a male. However, as she began to present at work as a female and advised her supervisors that she was transgender, Deluxe refused to allow her to use the women’s restroom. Austin further alleged that her coworkers and supervisors subjected her to a hostile work environment, including using hurtful epithets and intentionally using male gender pronouns to refer to her.

EEOC Opinions

In April 2015, the EEOC issued a significant opinion, finding transgender discrimination in Lusardi v. McHugh. In this case, Tamara Lusardi discussed her gender transition with her employer—in this case, the U.S. Army—and agreed to use a single-use restroom rather than the common women’s restroom until she underwent an unspecified surgery. However, when the single-use restroom was out of commission for a few days, Lusardi used the common women’s restroom. Each time her Army supervisors discovered that Lusardi had used the common women’s restroom, they confronted her and told her that she was making people uncomfortable and that she needed to avoid the women’s restroom until she showed proof that she completed the “final surgery.”

Of particular note, the EEOC opined that other employees’ anxiety could not justify discrimination. The EEOC found that the restriction of bathroom choice was an adverse employment action in violation of Title VII, relying on its prior opinion in Macy v. Holder. The EEOC noted that employees should not be required to provide proof of a medical procedure with respect to their transitions.

The EEOC’s opinion in Lusardi differs from a 2001 Minnesota Supreme Court decision in Goins v. West Group, which held that an employer’s designation of an employee restroom use based on biological gender is not transgender discrimination in violation of the Minnesota Human Rights Act.

In line with these recent developments, the Occupational Safety and Health Administration (OSHA), an agency of the Department of Labor that regulates workplace safety and health, recently published guidelines for restroom access of transgender workers. Under the Occupational Safety and Health Act of 1970, all employers subject to OSHA must provide employees with access to restroom facilities consistent with OSHA’s overall goal of assuring that employers provide a safe and healthful work environment. The guidelines suggest that employers should provide employees with access to restroom facilities that correspond with their gender identity. The guidelines outline options beyond traditional men and women’s segregated bathrooms, including single-occupancy, gender-neutral facilities. The guidelines also state that employees should not be required to provide any documentation of their gender in order to have access to the restroom that corresponds to their gender identity.

Practical Tips

Aside from creating media headlines, the recent EEOC litigation and opinions and OSHA guidelines have caused employers and claims professionals to be concerned about possible litigation and to take a closer look at their workplaces.

Given the courts’ willingness to hear transgender discrimination claims under a theory of sex stereotyping prohibited by Title VII, employers should be cautious about the timing of taking any adverse employment action against transgender employees. Additionally, employers should consider updating their EEO, anti-harassment and nondiscrimination policies to include gender identity as a protected class and consider incorporating this into equal employment opportunity and harassment trainings.

Employers also should use the name and pronoun preferred by the transgender employee. Similarly, employers should apply dress codes to transgender employees as they would apply to other employees of that gender. Further, employers should not disclose personal details about an employee’s transition without the employee’s prior consent.

With respect to restroom usage, the EEOC’s opinion is not binding, and most courts have not yet addressed what employers’ obligations are with respect to providing restrooms to transgender employees. Until this issue is decided by statute or case law, the safest practice for employers to establish in order to prevent discrimination claims is to allow transgender employees to use the restroom corresponding to the gender with which they identify. Employers also should ensure compliance with local laws that may address these issues.   



Storrs Downey, founding partner and capital member, is with the CLM Member Firm Bryce Downey & Lenkov LLC. He can be reached at sdowney@bdlfirm.com, www.bdlfirm.com.

Maital Savin is an associate with the CLM Member Firm Bryce Downey & Lenkov LLC. She can be reached at msavin@bdlfirm.com, www.bdlfirm.com.

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