1. Recognizing and Preventing LGBTQ and Gender Identity Discrimination in the Workplace
MNYSC HERC Membership Meeting
November 2, 2016
The Graduate Center/CUNY
Presented by
Renee Toback
Labor Economist, EEOC

2. The EEOC Enforces Federal Laws
It is illegal to discriminate against a job applicant or an employee because of:
race,
color,
religion,
sex (including pregnancy),
national origin,
age (40 or older),
disability or
genetic information.
These federal laws also prohibit employers from retaliating against workers who oppose discriminatory employment practices.

3. EEOC Covers EEOC Investigates as a Neutral Party
Most employers with at least 15 employees
20 employees in age discrimination cases
Most labor unions
Most employment agencies
All types of work situations, including
hiring, firing, promotions, harassment, training, wages, and benefits.
EEOC Investigates as a
Neutral Party

4. Charge MUST be filed within 300 DAYS of incident.
Time Limit to File
Charge MUST be filed within 300 DAYS of incident.

5. Types of EEOC Charges Commissioner: Filed by an EEOC Commissioner
Directed: Filed by EEOC
Filed by Complainant: Member of the Public
Third Party Charges: On behalf of a member of the public because s/he cannot file or is afraid of filing.

6. The Basics of LGBTQ Charges
The Civil Rights Act of 1964 prohibits discrimination on the basis of race or sex.
Title VII of the Civil rights Act prohibits discrimination on the basis of sex.
Title VII does not explicitly include the term “sexual orientation” as a basis for protection under the law.

7. EEOC Enforcement Protections for LGBT Employees
Discrimination against an individual because that person is transgender is a violation of Title VII's prohibition of sex discrimination in employment.
Discrimination against an individual based on sexual orientation is a violation of Title VII.
The EEOC position is consistent with case law from the Supreme Court and other courts
In 2012, the EEOC held that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex and therefore is prohibited under Title VII. See Macy v. Department of Justice, EEOC Appeal No (April 20, 2012).
The Commission has also held that discrimination against an individual because of that person's sexual orientation is discrimination because of sex and therefore prohibited under Title VII. See David Baldwin v. Dep't of Transportation, EEOC Appeal No (July 15, 2015).
Consistent with case law from the Supreme Court and other courts, the Commission takes the position that discrimination against an individual because that person is transgender is a violation of Title VII's prohibition of sex discrimination in employment. Therefore, the EEOC's district, field, area and local offices will accept and investigate charges from individuals who believe they have been discriminated against because of transgender status (or because of gender identity or a gender transition).
The Commission also takes the position, consistent with case law from the Supreme Court and other courts, that discrimination against an individual because of that person's sexual orientation is a violation of Title VII. Therefore, the Commission accepts and investigates charges alleging sexual-orientation discrimination in employment.

8. Complaints Investigated as Claims of Sex Discrimination under Title VII of the Civil Rights Act of 1964
Discrimination based on:
transgender status or gender-related discrimination
sexual orientation
retaliation for having complained about discrimination based on transgender status, gender discrimination or sexual orientation
Where a state or local law prohibits discrimination based on sexual orientation or gender identity, Charging Parties may also have a right to file a charge under state or local law.
Claims by transgender individuals. The EEOC's decision in Macy v. Dep't of Justice, EEOC Appeal No , 2012 WL (E.E.O.C.) (April 20, 2012), represents the Commission's position that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex.
Claims by lesbian, gay, and bisexual individuals. The EEOC's decision in Baldwin v. Dep't of Transportation, EEOC Appeal No (July 15, 2015) holds that discrimination on the basis of a person's sexual orientation is discrimination because of sex. 
Examples of discrimination that should be processed as charges:
Discrimination based on transgender status (CP is transgender) or in transition.
Discrimination or harassment that is motivated by a male applicant or employee being considered too effeminate or a female too masculine.
Comments or actions motivated by CP’s perceived non-conformance to masculinity or femininity gender stereotypes with respect to dress, speech, mannerisms, or other behavior.
Harassment or discrimination takes the form of anti-gay comments or actions, but is motivated by a perception that the applicant or employee is too effeminate or too masculine
Discrimination or harassment based on a same-sex marriage, partnership, or other same-sex relationship
Discrimination or harassment based on actual or perceived sexual orientation
Discrimination in terms, conditions, or privileges of employment, e.g., employer offers spousal insurance benefit for employees in opposite-sex legal marriages but not those in same-sex legal marriages.
The district court found, and the 7th Circuit affirmed, that the plaintiff’s Title VII claims failed because the harassment in question was based on sexual orientation and not sex/gender. The EEOC argued that the harassment of Muhammad based on actual or perceived sexual orientation was grounds for a Title VII claim of sex discrimination because such harassment was based on sex-based norms, preferences, expectations, or stereotypes. Additionally, the EEOC argued that based on recent developments in this area of the law, parties who complain about harassment have at least a reasonable belief that Title VII prohibits harassment based on sexual orientation, and complaints about such harassment are therefore activity protected from retaliation.

9. Possible witnesses to the alleged discrimination
Evidence that Transgender Status, Gender Identity and/or Sexual Orientation Caused the Alleged Discrimination or Harassment May Include:
Employer and/or employee knowledge of status, identity and/or sexual orientation
Possible witnesses to the alleged discrimination
Comments or actions suggest bias
Possible comparators
Interviews with management
officials with relevant information 
Employer policies and practices and/or the identity of employees who may have knowledge of policies and practices
Did employer have knowledge or believe CP was contemplating, currently undergoing, or in the past underwent a gender transition? Which managers and supervisors learned this? When and how was this learned?
Was CP open about his or her sexual orientation? When did employer or employees gain knowledge of sexual orientation?
Can CP or other witnesses attest to comments or actions that might indicate discriminatory bias? This might include comments about CP’s transgender status, or remarks or mocking behaviors relating to CP’s dress or grooming, body, voice, mannerisms, or other behaviors. It also might include shunning, exclusionary, or hostile actions, as in any harassment or discrimination case.
Potential gender stereotyping comments or evidence could include comments such as: “Men should only marry women” or “I don’t feel comfortable with women who have deep voices and never wear dresses.”
Does employer have policy regarding inappropriate or immoral behavior?

10. Relevant Evidence
Statements or actions regarding CP’s actual or perceived femininity/masculinity or sexual orientation/relationships
Mocking manner of dress, grooming, body, voice, mannerisms, behavior…
Use of epithets (e.g., derogatory names based on LGBT status)
Referring to a gay male CP by feminine names or pronouns, or to a lesbian CP by male names or pronouns
Sexually-oriented gestures or comments
Placing sexually-oriented publications, drawings, etc. at CP’s work area, sending such items or messages to CP, or distributing them to co-workers.
Derogatory comments about girlfriend/boyfriend/wife/ husband/partner or CP’s engagement or marriage/ commitment ceremony

11. EEOC Case Results Standard: “Reasonable Cause”
“More Likely Than Not” that Discrimination Occurred
Insufficient Evidence (Dismissal)
EEOC Takes No Further Action
Notice of Right to Sue Issued to Charging Party - Charging Party May Sue Privately
Reasonable Cause (Violation)
Conciliation Begins

12. Conciliation Confidential EEOC and Charging Party Agree Not to Sue
Terms of Conciliation Can Include
Hiring or Reinstatement
Training of Supervisors and Managers
Discipline of Discriminating Individual
Posting of a Notice
Monitoring and Reporting
Monetary Payment to the Charging Party
Lost Wages
Compensatory Damages
Punitive Damages

13. Litigation EEOC is No Longer Neutral
Review by Legal Unit
Lawsuit May be Filed
Limits on Lawsuits against States
EEOC May Not Sue under Title VII or ADA
Individuals May Not Sue under ADA or ADEA
EEOC Represents the Public Interest
Charging Party May Intervene
Pre-Trial Settlement
Trial

14. EEOC Policy Sex Discrimination Gender Identity discrim. Use of sex
stereotypes
Sexual orientation discrimination
Pregnancy discrimination
Sexual orientation and gender identity discrimination are always covered as sex discrimination, regardless of whether there is any obvious “stereotyping” involved.

15. EEOC Policy Discrimination because of gender identity
is sex discrimination
Discrimination because of sexual orientation is sex discrimination

16. Sexual Orientation & The Law
Applying Title VII to LGBT discrimination does not create new protected groups but recognizes the scope of the existing protected characteristic of “sex.”
Adverse employment actions taken against employees or applicants who do not conform to gender norms or stereotypes is discrimination “because of sex”
Gender-stereotyping claims may be presented regardless of the sex, gender identity, or sexual orientation of the applicant or employee.
The courts are increasingly recognizing that when an employment action is taken against an LGBT applicant or employee because of non-conformance to traditional gender stereotypes, it is actionable as sex discrimination under Title VII.

17. Sexual Orientation & The Law (continued)
Gender Stereotypes apply to individuals who identify as Heterosexual, Straight, or Asexual as well as those who identify as Lesbian, Gay, or Bisexual.
Sexual orientation harassment is often, if not always, motivated by a desire to enforce heterosexually defined gender norms.
Stereotypes about sexual orientation are directly related to stereotypes about the proper roles of men and women - sex-based norms, preferences and expectations.

18. Discrimination because of gender identity IS sex discrimination
For example…
Failing to hire applicant because she is transgender
Macy v. Dep’t of Justice (EEOC Appeal, April 20, 2012)
Firing employee because he is planning a gender transition /plans to use a traditionally female name

19. Discrimination because of gender identity is sex discrimination
Repeatedly & intentionally calling transgender woman “he” or “him” or by her previous, traditionally male name (harassment)
Lusardi v. Dep’t of the Army (EEOC Appeal, April 1, 2015)
The employer was liable for sex-based harassment for not stopping the consistent and inappropriate use of her wrong name & pronoun and denying her access to the appropriate restroom.

20. Lusardi v. Dep’t of the Army
EEOC Appeal No , 2015 WL (Apr. 1, 2015).
EEOC ruled:
denying equal access to a common restroom corresponding to the employee's gender identity is disparate treatment based on sex;
Employer may not require that the employee undergo or provide proof of surgery or any other medical procedure to exercise this right; and,

21. Lusardi v. Dep’t of the Army, cont’d
an employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it).

22. Discrimination because of sexual orientation = sex discrimination
Firing bisexual employee because she dated women in the past
Denying spousal health insurance benefits to a woman because her spouse is also a woman
Harassing an employee because she is a lesbian
Denying employee promotion because he is gay
Baldwin v. Dep’t of Transportation (EEOC Appeal, July 15, 2015)
Stereotype of opposite-sex attraction
But not just stereotyping: (1) Discrimination because of sex-based associations; (2) sex-based considerations.
Price Waterhouse said “sex-based considerations” cannot be the basis for employment decisions.
Baldwin: “[W]e conclude that sexual orientation is inherently a “sex-based consideration.’”

23. Baldwin v. FAA
(July 15, 2015)
Complaint filed with DOT/FAA alleged sexual orientation discrimination. CP was not promoted to a permanent Front Line Manager position in the Air Traffic Control Tower at Miami International Airport.
On appeal, the EEOC concluded that Complainant stated a claim under Title VII.

24. Legal Theories Supporting Baldwin
Disparate treatment based on sex, per a plain reading of Title VII’s statutory language prohibiting discrimination “because of ... sex." (e.g., male applicant not hired because has male spouse, but female applicant with male spouse would have been hired)
Associational discrimination based on sex (employer took employee's sex into account by treating him differently for associating with a person of the same sex)
Discrimination based on gender stereotypes, including the sex of a person to whom male or female should be attracted

25. Gender Identity Sexual Orientation = Title VII: Sex Discrimination
Recent Cases I am not an attorney. I cannot provide legal advice.

26. EEOC v. R.G. and G.R. Harris Funeral Homes, Inc., 2016 WL 4396083 (E.D. Mich. Aug. 18, 2016)
Court granted summary judgment to employer on EEOC’s claim that it fired funeral director because of transition from male to female. Court had previously ruled case could proceed only on a sex-stereotyping theory.
Held: Religious Freedom Restoration Act (RFRA) barred claim “under the facts and circumstances of this unique case.”
RFRA provides federal law shall not “substantially burden a person’s exercise of religion” unless it is necessary to further a compelling government interest and is the least restrictive means to do so. 

27. EEOC v. R.G. and G.R. Harris Funeral Homes, Inc., (continued)
Court reasoned that assuming without deciding that the EEOC has a compelling government interest in its enforcement of Title VII to eliminate discrimination, it failed to demonstrate there was no less restrictive means to achieve that goal in this case, such as having the employer adopt a gender-neutral dress code.

28. Texas v. United States
2016 WL (N.D. Tex. Aug. 21, 2016)
Group of states, state agencies, and school districts brought action against federal agencies (Education, Labor, Justice, and EEOC, among others), challenging the agencies’ assertion that Title VII and Title IX require that all persons must be afforded opportunity to have access to restrooms, locker rooms, and showers that correspond to their gender identity.
Court held that various agency issuances on this issue were “final agency action” subject to judicial review, and granted a preliminary injunction enjoining various agency actions.

29. Isaacs v. Felder 2015 WL 6560655 (M.D. Ala. Oct. 29, 2015).
Citing EEOC’s decision in Baldwin, court explicitly rejected arguments that sexual orientation discrimination cannot be challenged under Title VII: “This court agrees … [with EEOC] sexual orientation-based discrimination are cognizable* under Title VII.
* falling within jurisdiction of, able to be tried under that jurisdiction
Since FY 2013, the EEOC had been tracking sexual orientation discrimination claims based on the view that such charges stated sex discrimination claims. In July 2015, in Baldwin v. DOT, the EEOC ruled explicitly that sexual orientation discrimination is always a form of sex discrimination. The EEOC explicitly overturned its previous decisions to the contrary, and applies this precedent in private and public sector cases. Three theories in Baldwin: (1) treated differently based on sex, per a plain reading of Title VII’s statutory language prohibiting discrimination “because of sex." (e.g., male applicant not hired because has male spouse, but female applicant with male spouse would have been hired); (2) associational discrimination based on sex (employer took employee's sex into account by treating him differently for associating with a person of the same sex); (3) discrimination based on gender stereotypes, including about sex of person to whom male or female should be attracted.

30. Isaacs v. Felder (continued)
“To the extent that sexual orientation discrimination occurs … based on her or his perceived deviations from ‘heterosexually defined gender norms,’ this, too, is sex discrimination, of the gender-stereotyping variety.”

31. Hively v. Ivy Tech Community College
2016 WL (7th Cir. July 28, 2016).
Part-time adjunct professor alleged she was denied full-time employment and promotions based on sexual orientation. (Title VII action against community college)
7th Circuit: claims of sexual orientation discrimination not cognizable as sex discrimination under Title VII. Supreme Court has not yet endorsed this view.

32. Hively v. Ivy Tech Community College (continued)
But the court observed:
“The [Supreme Court] cases as they stand do, however, create a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.”
The distinction between gender non-conformity claims (which are covered) and sexual orientation claims (which have not yet been considered) has created an odd state of affairs: gay, lesbian, and bisexual people are protected only from discrimination based on non-conformity to gender norms—or conformity to GLBT stereotypes. Those who conform to gender norms in dress and mannerisms mostly lose their claims for sex discrimination under Title VII…

33. Frequently Asked Questions
Is it relevant for transgender discrimination claims whether a transgender individual has undergone medical treatment or procedures to change his or her biological sex or consulted with a psychologist or psychiatrist?
  No. Transgender individuals make a variety of choices about this process based on personal, medical, financial, and other reasons. The discriminatory conduct often focuses on how the person presents him or herself through appearance or actions and/or through conversations with an employer or potential employer.

34. Frequently Asked Questions – continued
Is a transgender individual (who is already presenting in his or her authentic gender) required to inform an employer or prospective employer about his or her birth gender?
No. The only exception for this may be for security clearance issues; the individual may have to inform an employer about any previous names or identities.
If an employee intends to transition as current employee, the person would likely decide to discuss the transition with HR or a manager so that other employees may be trained properly to approach the transition in a respectful manner.

35. Frequently Asked Questions – cont.
Is it important for gender stereotyping claims whether a Charging Party is gay or whether the harasser is gay?
Mostly, no. Focus is on how the individual presents him or herself in gender presentation claims. Sexuality is irrelevant.
Transgender identity claims focus is on the person’s communication about identity and/or the outside gender presentation. Sexual orientation is not of concern.
Sometimes knowing the harasser is motivated by sexual desire allows us to more easily show that the harassment is “because of sex” in same-sex harassment.
However, you can show this in ways other than the sexual orientation of the Charging Party or the harasser.

36. CUSTOMER SPECIFIC TRAINING
In the next 12 months, over 80,000 companies will be charged with discrimination.
On-Site Training – Bringing the training to you!
Frequently requested training topics:
Sexual harassment prevention
Lawful layoff & termination procedures
Creating/Managing a diverse workforce
HR issues: “Unfair or discriminatory?”
Record keeping and documentation
Your Topic _ANY EEO ISSUE_______

37. TECHNICAL ASSISTANCE SEMINAR
The EEOC offers several Technical Assistance Seminars each year in various locations.
Seminars are one or two-day workshops which are designed for human resource and EEO staff, attorneys, business owners, stakeholders and all who respond to workplace issues.(receive SHRM, CLE & HRCI credit)
Sign up for GOVDelivery to receive more information. (Info in flyer)

38. What Happens in a LGBT Inclusive Work Environment?
Effectiveness of resources increases
Pool of employees is larger
Reduces urge for LGBTs to look for another job
LGBTs are more engaged in work and with coworkers
Improves LGBTs’ performance
Improves public image

39. Helpful Information for Advocacy Organizations
In addition to individual charges, the EEOC offers Community Organizations and Advocacy Groups other options:
Third Party Charges
Commissioner’s Charge: Facts about the harassment-whether it was a one time incident or recurring
EEOC Directed Charge

40. Contact the EEOC Website: www.eeoc.gov
Phone: (TTY) (ASL Video Phone) questions:
Intake and Inquiries
Phone
In-person at an EEOC office
Via correspondence
The EEOC’s Assessment System

41. We appreciate your time and attention.
Thank You
We appreciate your time and attention.
Questions?