1. Presented By: Paula A. Barran Barran Liebman LLP
Transgender Employment Rights in Educational Institutions: A Legal & Practical Survey
Presented By: Paula A. Barran Barran Liebman LLP
March 16, 2018

2. 7th Circuit on Sexual Orientation Claims
“It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry.” Hively v. Ivy Tech Cmty. Coll., No , 2016 U.S. App. LEXIS , at *55 (7th Cir. July 28, 2016)

3. HIVELY IN THE SEVENTH CIRCUIT EN BANC
“We must decide … what it means to discriminate on the basis of sex…”
“Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils…” (citing Oncale)
“Any discomfort, disapproval, or job decision based on the fact that the complainant—woman or man— dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.”

4. IT’S A BIG COUNTRY WITH A LOT OF COURTS
Until the Supreme Court decides the applicability of federal law, there will continue to be questions about what Congress meant in Title VII when it wrote:
It shall be an unlawful employment practice for an employer:
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

5. IMPORTANT TERMS: GENDER IDENTITY, GENDER EXPRESSION, AND SEXUAL ORIENTATION
Gender identity is an individual’s internal sense of gender, which may differ from the person’s sex assigned at birth, and can include a gender identity that is transgender or androgynous
Gender expression is the manner in which a person expresses gender, such as through dress, appearance, manner, or speech
Sexual orientation is an individual’s heterosexuality, homosexuality, bisexuality, gender identity, regardless of assigned sex at birth

6. WHAT FEDERAL LAW SAYS
Title VII prohibits discrimination on the basis of gender:
Older interpretations refer to biological gender
In 1989, Price Waterhouse v. Hopkins recognized gender stereotyping as a legal theory:
“After Hopkins and Schwenk, it is unlawful to discriminate against a transgender (or any other) person because he or she does not behave in accordance with an employer’s expectations for men or women.” Kastle v. Maricopa Cty. Cmty. Coll. Dist., 325 F. Appx. 492, 493 (9th Cir. 2009)

7. EEOC ENFORCEMENT
“EEOC interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation. These protections apply regardless of any contrary state or local laws.” EEOC, What You Should Know About EEOC and the Enforcement Protections for LGBT Workers

8. TWO RECENT CHANGES (AND WE AREN’T SURE WHAT THEY SIGNAL)
Administration ban on service by transgender people in military
Administration direction to Pentagon expected to direct Secretary to deny admittance to transgender individuals and stop spending on medical treatment for those currently serving. Wall Street Journal , August 23, rules-for-military-transgender-ban lMyQjAxMTE3NzIyMzcyOTM1Wj/
Department of Education rescission of requirement to allow transgender students to use bathroom corresponding with gender identity
“the Departments believe that, in this context, there must be due regard for the primary role of the States and local school districts in establishing educational policy…All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment.”

9. STATE LAW Alaska Oregon Washington
State law does not prohibit employment discrimination based on sexual orientation or gender identity
Juneau, Anchorage have city ordinances
Oregon
OAR
Washington
RCW
Prohibits employers from discriminating on the basis of sexual orientation and gender identity

10. EXECUTIVE ORDER 11246 HAS A NEW LOOK
EO (2014) added sexual orientation and gender identity to the protected classes, such as federal contractors, as identified in EO 11246
OFCCP’s final implementing rule applies to contracts entered into or modified after the effective date of April 8, 2015
Since at least 2014, OFCCP has considered discrimination on the basis of gender identity and transgender status to be sex discrimination

11. CONTRACTORS’ REQUIREMENTS
Change the Equal Opportunity Clause to include gender identity and sexual orientation as protected classes.
OFCCP definitions:
The term “gender identity” refers to one’s internal sense of one’s own gender. It may or may not correspond to the sex assigned to a person at birth, and may or may not be made visible to others.
“Sexual orientation” refers to an individual’s physical, romantic, and/or emotional attraction to people of the same and/or opposite gender. Examples of sexual orientations include straight (or heterosexual), lesbian, gay, and bisexual.
Notify OFCCP and State Department when a country denies a visa because of sexual orientation or gender identity.

12. WHAT ISN’T REQUIRED?
Contractors are not required to collect or analyze data
Additional outreach is not required

13. WHAT IS NOT PERMITTED? Discrimination
Asking for proof of gender identity or transgender status
Requesting documentation that is not requested from other employees:
Name change
Medical leave
Denying the right to use restrooms consistent with gender identity
Denying same sex married spouses the benefits provided to opposite sex spouses

14. RELIGIOUS EXEMPTIONS
The requirements apply to contractors, not to grant recipients, so religious institutions may not be covered
If they are covered:
The Title VII “ministerial exception” remains in place
Religious corporations that are contractors may favor members of a particular religion
The Constitution prohibits the government from interfering with the ability of a religious organization to make employment decisions about its “ministers”

15. WAIT – THERE’S MORE!
OFCCP August 15, 2016 sex discrimination guidelines update:
Contractors must allow workers to use bathrooms, changing rooms, showers and similar facilities consistent with the gender of which the worker identifies
Categorical exclusion of coverage for care related to gender dysphoria or transition is discriminatory
Discrimination based on sex stereotypes is prohibited

16. PLUMBING - YOURS
Plumbing (the building variety) is not the easiest issue:
Some building codes require gender segregation
Once the plumbing stack is built, it may take major construction to change it
Offering separate choices for “men,” “women,” and “others” is a bad idea (does anyone really want to be an “other”?)
If an employer has gender specific and gender neutral restrooms, the employer may not require employee to use gender neutral

17. PLUMBING – HIS/HERS/THEIRS
Hint: None of your business.
Hint: Does the employer ask other employees about theirs?
Hint: Does the employer ask other employees to provide medical proof of gender as a condition of using the toilet facilities?
Plan for equal treatment.

18. OSHA: RESTROOMS ARE A SAFETY ISSUE
Employers must provide employees with sanitary and available toilet facilities and may not impose unreasonable restrictions on employee use:
Adverse health effects can result if toilets are not available when needed
Restricting employees to using restrooms that are inconsistent with gender identity, or segregating them from other workers by requiring specific restrooms, singles them out and can result in avoidance leading to injury or illness

19. OSHA’S MODEL PRACTICES
The employee should determine the most appropriate and safest option for himself or herself
Employees may not be required to provide medical or legal documentation of their gender identity
No employee should be required to use a segregated facility

20. OSHA’S MODEL PRACTICES
All employees should have prompt access to appropriate sanitary facilities and be permitted to use facilities that correspond with their gender identity:
Employees should determine the most appropriate and safest options
Employees should not be asked to provide documentation
No segregated facilities apart from other employees because of gender identity
No unreasonable distance or travel time
Additional options:
Single occupancy gender neutral (unisex) facilities
Multiple occupant gender neutral facilities with lockable single occupant stalls

21. BY THE WAY: PORTLAND CITY CODE
14A provides:
(E) It is unlawful for any male person to enter a restroom marked “Women.” This Section does not apply to a male child with his mother or female guardian, or an authorized person in the discharge of his regular duties
(F) It is unlawful for any female person to enter a restroom marked “Men.” This Section does not apply to a female child with her father or male guardian, or an authorized person in the discharge of her regular duties
But…
(H) The above requirements do not excuse a failure to provide reasonable and appropriate accommodations permitting all persons access to restrooms consistent with their expressed gender

22. INSURANCE: SECTION 1557 PROTECTIONS ON HOLD (COURT INJUNCTION)
Current status: injunction against enforcement (based on Religious Freedom Restoration and Administrative Procedure Act rulemaking requirements)
Insurance plans cannot discriminate on the basis of treatment being for gender identify disorder IF those same treatments are provided for other conditions, such as hysterectomy and mammograms
Coverage of gender reassignment surgery (gender confirmation) is not required, but blanket exclusions are prohibited
Final HHS ACA rule prohibits denial of health care for sex- specific conditions or ailments because the patient identifies as a different sex

23. FMLA (AND OTHER LEAVE LAWS)
FMLA may or may not cover medical treatment related to transitioning

24. DRESS CODES
Employers may enforce otherwise valid dress codes or policies
BUT employers must provide reasonable accommodation based on individual health and safety needs

25. LEARNING HOW TO TALK: PRONOUNS AS LINGUISTIC TOOLS
The employer can always use the employee’s name
The employer can always ask (and advertise) which pronoun the employee prefers
“He” and “she” do not cover every option
“They” has traditionally been plural but may now be a substitute for “he” or “she”

26. WORKING WHILE TRANSITIONING
OPM Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace:
Treat transition with sensitivity and confidentiality, particularly medical information
Evaluate gender-specific dress and appearance rules and apply them consistent with gender to which employee is transitioning
Use the name and pronoun appropriate to the gender the employee is now presenting; do not tolerate continued use of former name and gender
Permit restroom and locker room access consistent with the gender the employee is presenting

27. WORKING WHILE TRANSITIONING
More from the OPM
Gender differentiated job assignments should be made consistent with the gender the employee is presenting once the employee has begun working in that gender
Change personnel records to show new name and gender
Sick and medical leave may be used for treatment

28. TRAINING AND POLICIES
Freshening diversity/respect/harassment training is always a good idea
Consider inviting speakers
Be sensitive to bullying and mistreatment concerns if the employer has a transgender or transitioning employee
BUT CAN I TALK ABOUT IT?
Hint: treat this like private or medical information that is confidential to the employee
Hint: talk to the employee about what the employee would like the employer to disclose or keep confidential

29. ~ THANK YOU ~
Paula A. Barran
(503)