1. envision, strategize and actualize Handling Sexual Orientation and Gender Issues in the Workplace Trisha C. Gibo November 2015 Webinar Wednesdays

2. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary Definitions Sexual Orientation –One’s emotional or physical attraction to the same and/or opposite sex.* –Preference for heterosexuality, homosexuality, or bisexuality, having a history of any one or more of these preferences, or being identified with any one or more of these preferences.** –Examples: straight, gay, lesbian, bisexual * EEOC Guide to Employment Rights, Protections and Responsibilities **Hawaii Revised Statutes (HRS) Chapter 378-1.

3. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary Definitions Gender Identity –One’s innermost concept of self as male, female, a blend of both or neither* –How individuals perceive themselves and what they call themselves –Gender identity can be the same or different from sex assigned at birth** Gender Expression –External appearance of one’s gender identity* –Includes dress, grooming, speech patterns, social interactions and interests*** * Human Rights Campaign ** American Psychological Association *** Equal Employment Opportunity Commission

4. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary Definitions Transgender –An umbrella term for people whose gender identity and/or expression is different from cultural expectations based on the sex assigned at birth* –This is different from sexual orientation –Examples: Biological male that perceives oneself as female Biological female that perceives oneself as male * Office of Personnel Management

5. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary Definitions Gender Transition –Process of striving to align internal knowledge of gender with outward appearance* –For example: Changing how one dresses Using different names or pronouns Social recognition as another gender Physical transition and/or body modification * Human Rights Campaign

6. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary Discrimination on the Basis of Sex Disparate treatment discrimination –Adverse employment action based on protected status Examples: –Unequal discipline for same violations of policy Disciplining a homosexual employee when heterosexual employees in the same position are not disciplined –Rescinding job offers or terminating employees when employer discovered individual is transgender and/or gender transitioning –Segregating transgender employees from other employees

7. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary Harassment on the Basis of Sex Hostile Work Environment –Employee is subjected to verbal or physical conduct that is severe or pervasive with the effect of interfering with work performance Examples: –Epithets, inappropriate posters, gestures, –Inappropriate physical contact –Intentional use of wrong pronouns –Employer failure to intervene in harassing behavior –Transfer of harassment victims instead of alleged harassers

8. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary Applicable Federal Laws Title VII of the Civil Rights Act –Prohibits discrimination because of sex (including sexual orientation, gender identity, and gender expression) Occupational Safety and Health Act –Requires employers to provide safe working conditions for employees Executive Order 11246 –Prohibits certain federal contractors from discriminating on the basis of sex Executive Order 13672 (July 21, 2014) –Amends previous EO 11246 to include additional protected classes –Prohibits certain federal contractors from discriminating on the basis of sex (including sexual orientation and gender identity)

9. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary Applicable State Laws Hawaii Employer Practices Law, Hawaii Revised Statutes Chapter 378 –Sexual orientation is a protected class. –Gender identity or expression is a protected class. Effective July 1, 2013 Hawaii Revised Statutes Chapter 368 –Give HCRC authority to investigate employment discrimination claims on the basis of sexual orientation, gender identity or expression

10. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary Equal Employment Opportunity Commission Enforces Title VII of the Civil Rights Act of 1964 –Prohibits discrimination because of sex (includes sexual orientation, gender identity and expression) Authority –Investigate claims of discrimination because of sex –Issue determinations on claims filed by employees –Hear appeals of determination –File lawsuits on behalf of employees for violations of Title VII

11. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary Equal Employment Opportunity Commission Macy v. Holder, EEOC Appeal No. 0120120821 (April 20, 2012) –EEOC Decision – held that discrimination against a transgender individual is discrimination because of sex and prohibited by Title VII December 2012: Strategic Enforcement Plan (SEP) –Reaffirmed coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions –Listed LGBT discrimination cases as a top Commission enforcement priority

12. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary Equal Employment Opportunity Commission Between 2013-2015: –# of cases filed with EEOC claiming discrimination on the basis of gender identity or sexual orientation have increased –# of reasonable cause determinations issued by EEOC have increased Since 2014, EEOC has increased efforts to file lawsuits under Title VII on behalf of LGBT employees with sex discrimination claims

13. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary Hawaii Civil Rights Commission Enforces Hawaii Employment Practices Law, HRS Chapter 378 –Prohibits discrimination on the basis sexual orientation, gender identity and expression Authority –Investigate claims of discrimination because of sex –Issue determinations on claims filed by employees –Authority to file lawsuits on behalf of employees for violations of Chapter 378 Has also seen an increase in filed cases claiming discrimination on the basis of gender identity or sexual orientation

14. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary Office of Federal Contract Compliance Programs Enforces Executive Order 11246 as amended by Executive Order 13672 –Governs federal government contractors Issued Directive on August 19, 2014 –States that discrimination on the basis of sex under Executive Order 11246 includes gender identity and transgender status Memorandum of Understanding with EEOC –“Coordinate” cases on discrimination matters –May conduct audits of employment practices for compliance

15. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary Best Practices: Discrimination & Harassment Have EEO, anti-discrimination and anti-harassment policies Provide annual training on discrimination and harassment to employees and managers –Train managers on how to spot potential discrimination and harassment & how to respond/investigate claims Immediately investigate all claims of harassment Take immediate remedial action if reports of discrimination and harassment are confirmed

16. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary Occupational Safety & Health Administration Enforces Occupational Safety and Health Act (OSHA) –Ensures safe working conditions for employees –Authority to investigate claims and do “walkthroughs” of workplaces Under “sanitation standard,” employers are required to provide their employees with toilet facilities Best Practices Guide on Restrooms for Transgender Workers (June 2015) –Ensure safety & health of transgender employees at work –Suggested Model Practices –Listed inappropriate responses to transgender employees

17. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary Occupational Safety & Health Administration Model Practices –Use existing restrooms that correspond with gender identity –Single-occupant, gender-neutral facilities for all employees –Multiple-occupant, gender-neutral facilities for all employees Prohibits Unreasonable Restrictions –May not restrict employees to restrooms that are not consistent with gender identity –May not segregate transgender employees from other workers (i.e. only transgender employees use specific bathrooms) –May not be limited to using facilities that are an unreasonable distance or travel time from the employee’s worksite

18. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary Best Practices: Restrooms DOS –Adopt a policy for transgender individuals use of restroom facilities that follow the model practices –Train HR and managers on what they can and cannot say or require of transgender employees –Have management engage in conversation with transgender employee about restroom preferences –Be aware of similar issues related to public accommodations

19. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary Best Practices: Restrooms DONTS –Do not impose unreasonable restrictions on transgender employees –Do not ask employee to provide medical certification to use gender-appropriate restroom –Do not require transgender employees to use restroom specific to biological gender –Do not limit transgender employee to use of gender neutral restroom when other employees are permitted to use gender-specific restrooms –Do not make transgender employee travel long distances to restroom

20. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary Landmark Decisions and Laws Hawaii Marriage Equality Act of 2013 –Recognized same-sex marriages in Hawaii; amended definitions for marriage and spouse United States v. Windsor, 133 S. Ct. 2675 (2013). –Held that the Defense of Marriage Act unlawfully discriminated against married same-sex couples by denying federal rights, benefits, protections and responsibilities to those couples Obergefell v. Hodges, 135 S. Ct. 2584 (2015). –Guaranteed the fundamental right to marry for same-sex couples –All states in the country must recognize same-sex marriage

21. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary Best Practice: Benefits to Spouses Recognition of same-sex marriages means that any benefit provided to a “spouse” includes same-sex spouses: –Insurance coverage –Leave of absence policies (vacation, sick, PTO, bereavement) –Family and Medical Leave Act benefits In requiring proof of marriage or civil union, employers –CANNOT ask only one group to provide proof (i.e. same sex) –CAN ask everyone to provide proof of marriage

22. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary Best Practice: Appearance and Dress Code Policies Related to discrimination on the basis of gender identity or expression Adopt gender neutral policies –Eliminate gender specific dress requirements If keeping gender specific dress requirements it must impose equal burdens or equal costs Be prepared for accommodation requests –If unable to adhere to certain requirements, you may have to provide accommodations

23. Copyright © 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary FOR MORE INFORMATION … If you have any follow up questions, email us at –aes@esandalaw.comaes@esandalaw.com –tgibo@esandalaw.comtgibo@esandalaw.com For access to these materials, email bdasilva@esandalaw.combdasilva@esandalaw.com Our new website is live. Please visit www.esandalaw.comwww.esandalaw.com Our next webinar will be in December! –Dogs and Ponies and Comfort Cats, Oh My!