PHRC: Pennsylvania law prohibits sexual orientation discrimination

Here in Pennsylvania, we have a workplace anti-discrimination law called the Pennsylvania Human Relations Act (PHRA). It's a lot like the federal laws (Title VII, ADA, ADEA). One notable distinction is that the PHRA applies to employers with 4 or more employees, whereas the federal antidiscrimination laws generally require 15 (20 for the ADEA). One similarity is that the PHRA prohibits "sex" discrimination but not expressly "sexual orientation" discrimination.

Well, the Pennsylvania Human Relations Commission recently issued some important guidance: PHRC Guidance on Discrimination on teh Basis of Sex Under the PHRA. A key takeaway:

The prohibitions contained in the PHRA and related case law against discrimination on the basis of sex, in all areas of jurisdiction where sex is a protected class, prohibit discrimination on the basis of sex assigned at birth, sexual orientation, transgender identity, gender transition, gender identity, and gender expression.

The PHRC will accept complaints from people alleging discrimination on the basis of sexual orientation or gender identity/transition/expression. But, will evaluate them "using any and all legal theories available depending on the facts of the individual case."

6th Cir.: Title VII prohibits discrimination against transgender and transitioning employees

Earlier today, the Sixth Circuit held in EEOC v. Stephens:

Not official use.

Discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII.

Title VII prohibits "sex" discrimination but makes no mention of transgender or sexual orientation. However, this is the latest in a line of cases broadening the meaning of sex discrimination, and utilizing gender stereotyping theories, to afford protection to LGBT employees.

Just last week, the Second Circuit held that Title VII prohibits sexual orientation discrimination.

Transgender Prof wins $1.1 Million Jury Verdict

Just cranking out one last pre-Thanksgiving blog post here. Transgender university professor, Rachel Tudor, won a $1.1 million jury verdict in her employment discrimination case on Monday.

We're still in this awkward place where Title VII does not list "gender identity" (or "sexual orientation"), but some courts are interpreting the prohibition on "sex" discrimination to cover those classes. DOJ says they're not covered (after previously saying they were covered and initially being a plaintiff in the Tudor case). Meanwhile, the EEOC (at least for now) says they are covered. Meanwhile, some states expressly cover them, while some states do not but local ordinances do. Of course, transgender and homosexual employees at public universities may be protected under the Equal Protection Clause of the United States Constitution.

Confused yet? I anticipate federal legislation or a Supreme Court decision to decide this issue with regard to Title VII in the next few years.

Transgender ADA claim survives motion to dismiss

In Blatt v. Cabela's Retail, Inc., a Pennsylvania transgender employee filed an ADA discrimination and retaliation claim. She alleged that "she requested a female nametag and uniform and use of the female restroom as accommodations for her disability." Her alleged disability was "Gender Dysphoria, also known as Gender Identity Disorder."

Here's the problem . . . the ADA specifically excludes "gender identity disorders" from  the definition of "disability." 42 U.S. Code § 12211. The defendant contended that her case should be dismissed because her alleged disability is specifically excluded by the statute. The plaintiff claimed that this exclusion is unconstitutional because it violates her equal protection rights.

The Court applied the "constitutional-avoidance canon" - the idea being that courts should try to interpret statutes in a way that avoids resolving constitutional issues - to conclude:

In view of these considerations, it is fairly possible to interpret the term gender identity disorders narrowly to refer to simply the condition of identifying with a different gender, not to exclude from ADA coverage disabling conditions that persons who identify with a different gender may have —such as Blatt’s gender dysphoria, which substantially limits her major life activities of interacting with others, reproducing, and social and occupational functioning.

In other words, the Court interpreted the statutory exclusion of "gender identity disorders" so narrowly as to not cover what the plaintiff herself pleaded was a "Gender Identity Disorder." The Court went on to deny the motion to dismiss. The decision is likely not immediately appealable, but it's an issue that may find its way to the Third Circuit eventually.

Employers and the transgender bathroom issue

Most of the focus on the transgender bathroom issue has been placed on students. What about employees? As I've covered previously, there's some intersection between the student and employee issues. Put simply: both Title IX (students) and Title VII (employees) prohibit "sex" discrimination and the ultimate legal question is whether that requires transgender individuals to be permitted to use the bathroom that matches their gender identity (regardless of birth or physiological sex).

The Supreme Court was going to review a Fourth Circuit decision holding that "sex" for purposes of bathroom usage means "gender identity" under Title IX. However, that decision was based on deference to an Obama administration Dear Colleague letter jointly issued by the Departments of Justice and Education. Since then, the Trump administration issued its own Dear Colleague letter, withdrawing the Obama administration guidance. So, without even considering the underlying issue, the Supreme Court sent the case back to the lower courts to rule on the issue without the 'thumb on the scale' of the Obama administration guidance. We should now see how the lower courts rule based on the statutory text, and whether SCOTUS will still be interested on appeal.

Where does this leave employers? Well, the EEOC has adopted the position that employees must be permitted to use the bathroom that matches their gender identity. Unlike the Title IX guidance for students, the Trump administration has not withdrawn the EEOC's employer guidance yet. And, in fact, that guidance is based in part on an actual EEOC ruling (Lusardi v. Dept. of the Army), which cannot be as easily wiped away as a Dear Colleague letter.

I'll continue to track this issue as it develops. For now, at least at the federal level, the current EEOC position is that employers must allow employees to use the bathroom that matches their gender identity.

SCOTUS will hear transgender bathroom case

On Friday, the Supreme Court granted certiorari to hear Gloucester County School Board v. G.G. and decide these issues:

(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and  

(2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

The Court will not hear a broader challenge to "Auer deference" - a doctrine of deferential judicial review of agency interpretations - which was requested by the petitioner.

Put in simpler terms: SCOTUS will decide whether schools must allow transgender students to use the bathroom that matches their gender identity regardless of physiological sex.

What's this got to do with employment law?

This case is based on Title IX. Title IX prohibits schools that receive federal funding from discriminating on the basis of "sex." Title IX's implementing regulation allows schools to provide “separate toilet, locker rooms, and shower facilities on the basis of sex.” 34 C.F.R. § 106.33. Does "sex" mean gender identity? A federal agency (Department of Education) opinion letter says yes. That's the basis for the lower court's decision that the school must allow students to use the bathroom that matches their gender identity.

Yeah, yeah, still not employment law . . . here's the tie-in: Title VII prohibits employers from discriminating on the basis of "sex." The EEOC has similarly issued guidance stating that employees must be permitted to use the "restroom corresponding to the employee's gender identity." This guidance is backed by an actual EEOC decision in Lusardi v. Dep't of the Army. Obviously, SCOTUS's interpretation of "sex" discrimination under Title IX will lend some value to interpreting "sex" discrimination under Title VII.

So, will the SCOTUS decision determine an employer's obligations to transgender employees? Not necessarily - there are subtle distinctions between Title VII and Title IX, their corresponding regulations, and agency guidance and decisions. That said, the decision will likely have a huge impact on how Title VII's prohibition of "sex" discrimination applies to transgender employees.

Fed's transgender initiatives are struggling

Last week, the EEOC lost one of its first transgender discrimination cases. The Eastern District of Michigan dismissed the claims in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. (opinion here).

Not official use.

The Court noted that the protected classes under Title VII do not include transgender employees; but that doesn't really get us very far. You see, the case involved a sex-specific dress code and a male employee who was transitioning to female. Dress codes present particularly thorny issues under a "gender stereotyping" theory. So, even if Title VII does not specifically protect transgender employees, employers may still face liability for imposing gender stereotypes on employees regardless of whether they are male, female, transitioning, or transgender.

Here, however, the Court dismissed the claims based on the Religious Freedom Restoration Act (RFRA). The gist of the decision is that requiring the employer (a funeral home) to allow its biologically male employee to wear a skirt would impose a substantial burden on the employer's religious beliefs. Under RFRA, the EEOC could still win by showing a compelling government interest, and that it is using the least restrictive means to attain it. The Court assumed the former but held that the EEOC failed to establish the latter.  Eugene Volokh has some interesting analysis here.

On top of the Harris decision, a federal court in Texas issued a nationwide injunction blocking the President's Title IX guidance to schools on transgender bathroom usage.

I'm sure we haven't heard the last of these issues.

Curt Schilling, ESPN, Free Speech and quirky state laws

As you have probably already heard, ESPN fired Curt Schilling - presumably for sharing a Facebook post (screen grab here) that mocked transgender people and commenting that "A man is a man no matter what they call themselves" and "Now you need laws telling us differently? Pathetic."

Any free speech issues? I covered a lot of this ground in an article regarding Phil Robertson (the Duck Dynasty guy) and his dust-up with A&E. In short, the First Amendment generally only applies to state actors. It has some teeth in the context of public employment... but not so much with ESPN.

ESPN logo used in commentary
on ESPN.

But wait... ESPN is in Connecticut! Why does that matter? Because Connecticut has this law that prohibits "discipline or discharge" for exercising First Amendment rights, and it applies to private employers! However, that law comes with a pretty big caveat: "provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer."

As my favorite Connecticut employment law blogger, Dan Schwartz, noted on Twitter:

Has to be an issue of public concern and can't disrupt workplace. Speech here arguably has issues with both. https://t.co/Zum1NIbn1Y

— Dan Schwartz (@danielschwartz) April 21, 2016

Did Schilling's post address a matter of public concern? I think so - I mean, he specifically references "laws" and he's presumably referring to the public debate over North Carolina's bathroom law. Was he disrupting the workplace? I don't work there, so I don't know - seems at least plausible. We'll see how this plays out.

Of course, these issues may also be addressed in an individual contract between the parties. Also, I suppose it's possible that Schilling is based somewhere else and is not covered by the CT law.

Lawffice Links - Hodge Podge

I've had a busy week, so please excuse the dearth of blogging. There have been a few interesting employment law developments that deserve some recognition though. Have some Lawffice Links to get caught up:

• $150,000 settlement in "one of the first two lawsuits ever filed by the U.S. Equal Employment Opportunity Commission (EEOC) alleging sex discrimination against a transgender individual."
• The Sixth Circuit applied the "honest belief rule" in an ADEA case - The idea here is that an employer can escape discrimination liability if it has a non-discriminatory reason... "even if its conclusion is later shown to be mistaken, foolish, trivial, or baseless."
• In a separate decision, the Sixth Circuit also held that the ADA did not require an employer to allow an employee to telecommute under the circumstances of that case:
• Sixth Circuit's opinion. 
• Commentary from Jon Hyman.
• Commentary from Dan Schwartz.
• Commentary from Eric Meyer.

Enjoy!

EEOC on Transgender Harassment, Discrimination, and Restrooms

The EEOC issued an important new decision regarding transgender discrimination in Lusardi v. Dept. of Army (linked here, embedded below). The employee transitioned from a man to a woman and explained the transitioning process to (now-) her employer.

Rather than allow the employee to use the common women's restroom, the employer required her to use a single-use restroom (the employer claims the employee collaborated on this plan). The EEOC held that denying the employee use of the common women's restroom was disparate treatment on the basis of sex in violation of Title VII. To get there, the EEOC had to hold that the bathroom denial rose to the level of "adverse employment action" - a call that could easily go either way.

Also, the employee's team leader continued to occasionally refer to her by her male name, using male pronouns, and often calling her "sir." The EEOC concluded that this was sex-based harassment. Whether these incidents constituted "severe or pervasive" harassment (a requirement for harassment claims) was another close call.

Clearly, the EEOC has gone all-in on utilizing Title VII to protect transgender employees from workplace discrimination. Whether courts will address these issues in the same manner remains an open question.

 

More Transgender Discrimination as Sex Discrimination

Well, add another case to the growing body of law regarding whether transgender discrimination is sex discrimination. This time from the U.S. military. The U.S. Office of Special Counsel issued this Report of Prohibited Personnel Practice in August, but just now released a redacted version to the public.

Technically, the report concludes that:

[T]he Agency's discrimination against Doe on the basis of her gender identity, including her gender transition from a man to a woman, constituted a PPP (prohibited personnel practice) under 5 U.S.C. § 2302(b)(10)(discrimination based on conduct not adverse to work performance) . . . . OSC makes no determination regarding Doe's sex discrimination claim, [but] OSC relies on pertinent EEO law for appropriate context.

But, the report notes at the outset that transgender discrimination " likely constitute[s] a PPP of sex discrimination." The report also relies on Title VII precedent for "guiding principles."

Bottom line: Although the report technically makes no determination on the issue of sex discrimination, it does so in a way that makes pretty clear that the office believes transgender discrimination is sex discrimination.

EEOC Files Two Transgender Discrimination Lawsuits

More than two years ago, the EEOC held that transgender discrimination is a form of sex discrimination. Less than a year ago, the Third Circuit analyzed a transgender discrimination claim as thought it were any other discrimination claim. At the time, I wrote:

I think the writing is on the wall on this issue . . . transgender/gender identity discrimination will be treated as sex discrimination by courts (whether ENDA passes or not).

I guess some employers didn't get the memo.

The EEOC announced a pair of transgender discrimination lawsuits, the first in its history. You can read the press releases here and here. Both cases entail male employees who began transitioning to female - and were promptly fired.

Gender-Neutral Employee Called "Miss" and "Lady" Files Lawsuit

A former Bon Appetit Management Co. employee is suing "their" former employer for using the wrong pronouns:

Valeria Jones alleges in a lawsuit that co-workers repeatedly called Jones “miss,” “lady” and “little lady” despite explanations that Jones “was not a female or a male and that the term was unwelcome.” . . . . The lawsuit, filed this week in Multnomah County Circuit Court (Oregon), says Jones preferred to be addressed by a general neutral pronoun.

The lawsuit apparently fails to include the employee's preferred terminology. We can speculate gender neutral terms like "their" (a plural that is catching on as a gender-neutral singular). This article mentions "zie" - a gender neutral term I have never heard of before.

Transgender issues are often tricky because many people are unfamiliar with the terminology and have little if any exposure to transgender individuals. I think a good general rule is to just call the employee whatever the employee wants to be called (unless it's a racial slur or something that would present its own liability issues).

As I have blogged previously, transgender/gender identity discrimination will most likely be treated as sex discrimination by courts.

Third Circuit Decision in Transgender Discrimination Case - COTW #168

On Wednesday, the Third Circuit issued a non-precedential opinion in Stacy v. LSI Corp. The case is noteworthy because the plaintiff's claims were based on transgender/gender identity discrimination (framed as Title VII sex discrimination, sex and disability (gender identity disorder) discrimination and retaliation under the PHRA (PA's state discrimination statute), and gender identity, sex, and disability discrimination and retaliation under Allentown's discrimination act).

Other than that, you know what's unusual about this decision? The fact that there's really nothing unusual about this decision. The Court simply applies the McDonnell Douglas burden shifting framework to conclude that the employer proffered legitimate non-discriminatory reasons for terminating the employee, and she could not establish pretext. Summary judgment for the employer.

I should note what the Court did not hold. The Court did not specifically address whether transgender/gender identity discrimination is protected by Title VII and the PHRA because the employer conceded that the employee had set forth a prima facie case. Nevertheless, as I've stated previously, I think the writing is on the wall on this issue . . . transgender/gender identity discrimination will be treated as sex discrimination by courts (whether ENDA passes or not).

EEOC: Transgender Discrimination is Sex Discrimination (Full Opinion Here)

Title VII prohibits employment discrimination "based on . . . sex." It does not expressly protect transgender individuals. It does not protect against discrimination based on "gender identity." But, does the plain meaning of the text in Title VII afford protection to transgender individuals anyway?

Yesterday, the EEOC issued an opinion with a straightforward holding:

Thus, we conclude that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination "based on . . . sex," and such discrimination therefore violates Title VII.

That's a pretty clear holding. This is hardly groundbreaking legal analysis though. The District of D.C. reached a similar conclusion back in 2008, the Eleventh Circuit held that transgender discrimination is sex discrimination under the Constitution's Equal Protection Clause, and other courts have applied similar analysis. Also, many states and municipalities expressly prohibit discrimination on the basis of "gender identity." Bottom line: If you're an employer, discrimination against transgender individuals is playing with fire.

Why does the EEOC opinion matter? Well, it's a nationwide opinion in that it should serve as precedent for all of the EEOC regional offices to follow. Of course, the courts in any given jurisdiction are not obligated to follow the opinion, but they may afford the EEOC's view some deference.

The full opinion is embedded below (or view online here):EEOC Ruling

HT: Ross Runkel via Twitter.

Image: EEOC logo used in commentary on EEOC. Not official use.

Fired for Wearing a Fake Penis?

When people find out I'm an employment lawyer, they almost always have questions. Those questions are invariably some form of "Can my employer fire me for __________." I can assure you that I have never been asked, "Can my employer fire me for . . . wearing a fake penis to work?"

A new case just filed in federal court in Scranton, Pennsylvania may just provide the answer. HT: Law and Daily Life for the details. A female line worker for J&J Snack Foods claims she is taking steps toward a sex change. Apparently, one of those steps is wearing a prosthetic penis while she works. Her lawsuit alleges that her fake penis was the reason she was fired.

She claims nobody could tell she was wearing it and that it didn't interfere with her work. How did the employer find out? The employee confided in a few co-workers and somehow the word spread. Unsolicited advice: when you tell your co-workers you're wearing a fake penis . . . word is gonna spread!

So, how does this become a lawsuit? She alleges discrimination on the basis of gender and gender identity. "Gender identity" is not a protected class per se under Pennsylvania law (PHRA) or federal law (Title VII). But, some transgendered plaintiffs have had success framing their cases as a form of gender discrimination. The plaintiff here also claims that a male co-worker who wore women's clothing and prosthetics to make him look female was treated differently.

With any luck, this will go all the way to the Supreme Court so I don't have to worry about finding good blogging topics for the next few years!

Image: Those are J&J Snack Foods' SuperPretzel SoftStix of course! Product image used in commentary on J&J.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Transsexual Employee Protected by Constitution (and Title VII by Implication?) - COTW #70

In Glenn v. Brumby, the Eleventh Circuit analyzed whether the Equal Protection Clause of the Fourteenth Amendment of the Constitution prohibits public employer discrimination against transsexuals. But, it's also a big case for private employers.

The facts are pretty straightforward, which allows the Court to focus almost entirely on the transsexual discrimination issue:

[Defendant] testified at his deposition that he fired [Plaintiff] because he considered it "inappropriate" for her to appear at work dressed as a woman and that he found it "unsettling" and "unnatural" that [Plaintiff] would appear wearing women’s clothing. [Defendant] testified that his decision to dismiss [Plaintiff] was based on his perception of [Plaintiff] as "a man dressed as a woman and made up as a woman," and [Defendant] admitted that his decision to fire [Plaintiff] was based on "the sheer fact of the transition."

Are you there God? It's me Phil. Please send me a plaintiff terminated by a defendant who is this discriminatory and honest.

The Court did not address this as class-based discrimination against transsexuals though. Instead, the Court analyzed the equal protection claim as a gender-stereotyping, sex-based discrimination claim. Why does that matter? Two important reasons:

1. Sex- and gender- based discrimination receive a heightened standard of review, "intermediate scrutiny" (I'm not aware of case law on this point, but I'm guessing transsexual-based discrimination would warrant only rational basis review); and


2. If discrimination against transsexuals is sex-based discrimination... and Title VII prohibits sex-based discrimination by private employers... the unavoidable conclusion is that Title VII prohibits discrimination against transsexuals by private employers too.

The Court concluded that "a government agent violates the Equal Protection Clause’s prohibition of sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity."

The idea that discrimination against transsexuals is actually sex-based discrimination is hardly new. The Court provides a plethora of case law supporting the point. Although this was a public employer case under the Constitution, private employers should recognize the implications.

HT: Russ Runkel via Twitter:

Transsexualism is a protected classification under the federal Equal Protection Clause tinyurl.com/c6zbhtj
— Ross Runkel (@RossRunkel) December6, 2011

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

It's the ENDA the World as we Know It

And I feel fine. Actually, it's not that earth-shattering but I couldn't resist the play on words. Barney Frank introduced the Employment Non-Discrimination Act of 2009 ("ENDA" text) in the House of Representatives.

In short, the proposed law would prohibit employment discrimination based on sexual orientation and gender identity. The gender identity provision may cause a stir as it was not in the last failed version of ENDA. Oh, who am I kidding, the sexual orientation provision will cause a stir too.

Of course, ENDA would also prohibit retaliation. There would be exceptions for any organization exempted from the religious discrimination provisions of Title VII. Military would also be exempted. Browsing through the bill (the number is HR 2981 by the way) it looks like there are about bajillion references to Title VII. That's not an exact count. It looks like the bill seeks to more or less throw sexual orientation and gender identity on to the Title VII pile.

For more information, The Employment Law Post has a nice little article on ENDA. I don't think we've heard the last of this one by a long shot.

Transgender Title VII Claim Worth Half-a-million

The price tag for a recent U.S. District Court of the District of Columbia transgender Title VII case:

• Back Pay and Benefits: $183,653
• Nonpecuniary Losses: $300,000
• Past Pecuniary Losses: $7,537.80

Total judgment: $491,190.80! Schroer v. Billington, 1:05-cv-01090-JR (D.D.C. April 28, 2009). So how did it get there, and since when did Title VII cover transgenders?

David Schroer interviewed for a job with the Library of Congress. They offered him the job. He accepted and then notified his future employer that he would be reporting for duty as Diane Schroer; Ms. Schroer is a transgender. The Library of Congress subsequently rescinded the offer kicking off Ms. Schroer's Title VII claim.

The finding of discrimination actually occurred in September of last year. Schroer v. Billington, 577 F.Supp. 2d 293 (D.D.C. 2008). The Court recognized that:

“[N]early all federal courts have said [transsexuality] is unprotected by Title VII. See Ulane v. Eastern Airlines, 742 F.2d 1081, 1085 (7th Cir.1984); Sommers v. Budget Mktg., Inc., 667 F.2d 748, 750 (8th Cir.1982); Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662-63 (9th Cir.1977); Doe v. U.S. Postal Service, 1985 U.S. Dist. LEXIS 18959, 1985 WL 9446, *2 (D.D.C.1985).”

The D.C. District Court declined to follow this precedent based on two different rationales.

First, the Court found that Schroer was entitled to judgment on the basis of "sex stereotyping":

“Ultimately, I do not think that it matters [whether the Library] perceived Schroer to be an insufficiently masculine man, an insufficiently feminine woman, or an inherently gender-nonconforming transsexual.”

Second, the Court held that discrimination against transgenders was "based on sex." The previous cases had held that "sex" under Title VII meant nothing more than "male and female." In this case, however, the Court reasoned:

“Imagine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer testifies that he harbors no bias toward either Christians or Jews but only 'converts.' That would be a clear case of discrimination 'because of religion.' No court would take seriously the notion that 'converts' are not covered by the statute. Discrimination 'because of religion' easily encompasses discrimination because of a change of religion.”

Judgment for the Plaintiff.

So, are transgenders protected under Title VII? This latest decision comes from but one federal district court of many. Whether additional federal courts (district or appellate) will follow suit remains to be seen. Furthermore, wildcards abound. Will Congress legislate in this area? What about state legislation? The D.C. Human Rights Act, for example, already recognizes "gender identity". Ultimately, only time will tell.

UPDATE (6/28/2009) - Barney Frank introduces ENDA in the house - would essentially afford Title VII-like protection from discrimination based on "Gender Identity."