The EOPA-Noc Workshop: Transgender in the Workplace; October 21, 2016
TRANSGENDER LEGAL ISSUES
IN THE WORKPLACE
Introduction
Employment issues involving LGBT employees are trending and the situation is fluid. There are many questions and much confusion about employee rights and employer obligations. There seems to be a particular interest in transgender issues especially involving the bathroom. What follows is an overview of the developments in this area. This is not legal advice. The information is intended to educate and prompt review of company policies that affect the people involved.
A. Definitions
Words matter and understanding the language is essential to ensure that people are able to communicate with each other. It is important to be familiar with the language used by the LGBT community. It is also important to respect a person’s self-identification. Never assume another person’s identity based on appearance. It is best to ask the individual how they identify and, for transgender individuals, which pronouns they prefer. Respecting their wishes is also important.
LGBT, LGBTQ: These acronyms refer to Lesbian, Gay, Bisexual, Transgender and Queer. Although all of the different identities within “LGBT” are often lumped together, there are specific needs and concerns related to each individual identity.
Bi-Gender: One who has a significant gender identity that encompasses genders, male and female. Some may feel that one side or the other is stronger, but both sides are there.
Bisexual: A person who is emotionally, physically, and/or sexually attracted to more than one gender. Also called “bi”.
Cisgender: A person whose gender identity and expression matches the gender typically associated with their biological sex. For example: a female who identifies as a woman.
FTM: A person who was assigned female at birth but identifies and lives as male; a person who transitions from “female-to-male”; also known as “transgender man.”
Gay: A homosexual person, usually used to describe men but may be used to describe women as well.
Gender Dysphoria: This terms replaces “gender identity disorder” in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). The diagnosis applies to people who identify with a gender that is contrary to the one assigned at birth. “For a person to be diagnosed with gender dysphoria, there must be a marked difference between the individual’s expressed/experienced gender and the gender others would assign him or her and it must continue for at least six months. In children, the desire to be of the other gender must be present and verbalized. This condition causes clinically significant distress or impairment in social, occupational or other important areas of functioning.”[1]
Gender dysphoria is not the same as “sexual orientation.” A person’s internal sense of “gender” is different from one’s “sexual orientation.”
Gender expression: Refers to the ways in which people externally communicate their gender identity to others through behavior, clothing, hairstyle, voice and emphasizing, de-emphasizing or changing their body’s characteristics. Gender expression is not necessarily an indication of sexual orientation.
Gender identity: The sense of “being” male or “being” female. For some people, gender identity is in accord with physical anatomy. For transgender people, gender identity may differ from physical anatomy or expected social roles. It is important to note that gender identity, biological sex, and sexual orientation are not necessarily linked. It reflects an individual’s internal sense of being male, female or something else. Since gender identity is internal it is not necessarily visible to others.
Gender Nonconforming: This is a broader term that can include “gender dysphoria.” The term applies to people whose gender expression is different from societal expectations related to gender. It also applies to those who feel they are neither only male nor only female.
Genderqueer: A term which refers to individuals or groups who “queer” or problematize the hegemonic notions of sex, gender and desire in a given society. Genderqueer people possess identities that fall outside of the widely accepted sexual binary. These individuals identify as neither entirely male nor female. Genderqueer may also refer to people who identify as both transgender AND queer, i.e. individuals who challenge both gender and sexuality regimes and see gender identity and sexual orientation as overlapping and interconnected.
Gender Reassignment Surgery: Surgical procedures that change one’s body to make it conform to a person’s gender identity. This may include “top surgery” (breast augmentation or removal) or “bottom surgery” (altering genitals). Contrary to popular belief, there is not one surgery; there are many different surgeries. “Sex change surgery” is considered a derogatory term.
Heterosexual: A person who is emotionally, physically, and/or sexually attracted and committed to the members or a gender or sex that is seen to be the “opposite” or other than the one with which they identify or are identified. Also called “straight”.
Homophobia: Thoughts, feelings, or actions based on far, dislike, judgment, or hatred of lesbians, gays and bisexuals. Homophobia has roots in sexism and can include prejudice, discrimination, harassment, and acts of violence.
Homosexual: This is a clinical term that originated in the late 1800s. It has come to be viewed as a pejorative term intended to insult and denigrate a LGBT person. Historically it is used to describe a person who is primarily or exclusively attracted to members of what they identify as their own sex or gender.
Intersex: A term used for people who are born with external genitalia, chromosomes or internal reproductive systems that are not traditionally associated with either a “standard” male or female.
Lesbian: A homosexual woman. A feminine lesbian is often referred to as “femme”; a more masculine lesbian can identify as “butch”. These sub-definitions should not be assumed based on an individual’s appearance or presentation.
Passing: A term used by transgender people to mean they are seen as the gender with which they self-identify. Ex: a transgender man (born female) who most people see as a man.
Queer: Used as an umbrella identity term encompassing lesbian, questioning people, gay men, bisexuals, non-labeling people, transgender folks, and anyone else who does not strictly identify as heterosexual. Some use “queer” as an alternative to “gay” in order to be more inclusive since the term does not convey a sense of gender.
Some people identify as “queer” to distance themselves from the rigid categorization of “straight” and “gay”. Some transgender, lesbian, gay, questioning, non-labeling, and bisexual people, however, reject the use of this term due to its connotations of deviance and its tendency to gloss over and sometimes deny the differences between these groups. “Queer” originated as a derogatory word. Currently, it is being reclaimed by some people and used as a statement of empowerment.
Sexual orientation: A person’s emotional, physical and sexual attraction and the expression of that attraction with other individuals. The term describes a person’s attraction to members of the same sex or different sex. Some of the better-known labels or categories include “bisexual” (or “multisexual”, “pansexual”, “omnisexual”), “lesbian”, “gay” (“homosexual” is more clinical), or “heterosexual”.
Transgender: This term has many definitions. It is frequently used as an umbrella term to refer to all people who deviate from their assigned gender at birth or the binary gender system. This includes transsexuals, cross-dressers, genderqueers, drag kings, drag queens, two-spirit people, and others. Some transgender people feel they exist not within one of the two standard gender categories, but rather somewhere between, beyond or outside of those two genders. This is a broad term and is good for non-transgender people to use.
Transgender Man: A term for a transgender individual who identifies as male (female to male transition).
Transgender Woman: A term for a transgender individual who identifies as female (male to female transition).
Transition: The period during which a person begins to live as their new gender. Transitioning may include changing one’s name, taking hormones, having surgery or changing legal documents (driver’s license, birth certificate, Social Security record, passport) to reflect their new gender.
Transphobia: The fear or hatred of transgender people or gender non-conforming behavior. Like biphobia, transphobia can also exist among lesbian, gay, and bisexual people as well as among heterosexual people.
Transsexual: This is a controversial term and is not universally accepted within the transgender community. Many transgender people reject the term but it continues to be used by some. Transsexual is generally viewed as a subset of transgender. The American Psychiatric Association removed “transsexualism” as a diagnosis in the new edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). It has been replaced by the diagnosis term, gender dysphoria.
B. Federal & State Law
Ohio law does not prohibit discrimination based on “gender identity” and “sexual orientation.” Governor Kasich did issue an Executive Order prohibiting discrimination based on “sexual orientation.” He removed the protection for transgender state employees.
There is no federal antidiscrimination statute that specifically includes “gender identity” and “sexual orientation” as a protected class. In July 2014, President Obama issued Executive Order 1148 that explicitly prohibits federal agencies and private firms receiving federal contracts from discrimination based on either of those categories.
A growing number of private companies now include “gender identity” and “sexual orientation” in their nondiscrimination policies. Eighteen states and the District of Columbia expressly ban “gender identity” discrimination in public and private workplaces. Including the terms “gender identity” and “sexual orientation” in a company’s nondiscrimination policy and in employment contracts or collective bargaining agreements creates a contractual obligation that must be enforced.
Language in the federal Americans with Disabilities Act (ADA) explicitly excludes transgender people. But, disability claims based on state law have been successful.
Employers must carefully review complaints from LGBT employees even though there are no federal or state laws that explicitly include “gender identity” and “sexual orientation.” There may be actionable complaints based on two other allegations: “quid pro quo” and “hostile environment.”
Quid pro quo harassment: Literally means “this for that” and it is often blatant. This can occur when a superior uses a job reward (i.e. a raise or promotion) or punishment (i.e. a firing) to force an employee into a sexual relationship.
Hostile environment harassment is subtler. Employees claiming a hostile environment exists in the workplace that is so disruptive it prevents them from doing their job.
Management must be sensitive to workplace behaviors that can result in employee complaints.
C. The Elephants in the Room
Where to Pee
Bathroom issues have been the bain of civil rights throughout U.S. history. For many years, blacks could not use the same bathroom as whites.
Opponents of the Equal Rights Amendment argued that it would require men and women to use the same bathroom.
Fears about allowing gay men (and lesbians) to serve openly in the U.S. military were often based on the communal shower argument.
In 2016, a number of state legislatures have introduced or passed laws that require people to use the bathrooms that reflect the gender listed on their birth certificates. The reaction has been swift and significant. North Carolina’s law, for example, resulted in several large corporations withdrawing planned projects from the state or reducing their corporate imprint. And, the NCAA and the NBA moved collegiate and professional high-profile competitions out of the state. Mississippi also passed a “bathroom law” yet has not experienced the same response--possibly because it is the poorest state and there is little corporate interest in it.
Religion
The other elephant in the room deals with religious objections to recognizing LGBT rights. The argument revolves around a Biblical interpretation that declares homosexuality a sin. People that adopt this belief claim respecting LGBT civil rights requires that they violate their religious beliefs.
In 2013, the U.S. Supreme Court decided that the government is prohibited from “substantially burdening a person’s exercise of religion even if the burden results from a rule of general applicability.” This was the Burwell v. Hobby Lobby decision and the case involved a provision in the Affordable Care Act requiring companies to provide coverage for contraceptives in their insurance policies. Hobby Lobby claimed the requirement ran counter to the company’s religious beliefs. It was the first time a corporate entity was deemed to have religious beliefs.
No one has figured out what happens if competing religious beliefs arrive at different conclusions on a given topic and how that affects existing civil rights laws.
There has been no discussion of whether employers must honor everyone’s competing individual religious beliefs without violating any one person’s beliefs. Can a company’s (or its owner’s) religious beliefs justify discrimination based on race, color, national origin or religion? Does the First Amendment freedom of religion provision mean the 1964 Civil Rights Act is unconstitutional? It is a Pandora’s box waiting to be opened.
D. Equal Employment Opportunity Commission (EEOC)
The EEOC decided that employers cannot deny an employee equal access to a common restroom that conforms to the persons gender identity. Doing so constitutes sex discrimination and is actionable under Title VII.
Employers cannot require the transgender employee to provide proof of surgery or any other medical procedure. Employers cannot avoid providing equal access by restricting the transgender employee to a single-user restroom instead--UNLESS that single-user restroom is available to all employees.
Of immediate importance, given the proliferation of “bathroom” bills, is that state law allowing such discrimination is NOT a defense under Title VII (42 U.S.C. § 2000e-7).
The Fourth Circuit Court of Appeals reached the same conclusion in G.G. ex.rel. Grimm v. Gloucester Cty. Sch. Bd., --F.3d --, 2016 WL 1567467 (4th Cir. 2016). The court deferred to the U.S. Department of Education’s position that Title IX prohibits sex discrimination by educational institutions. That decision is being appealed to the U.S. Supreme Court.
Confusion or anxiety by co-workers or supervisors does not justify discriminatory terms or conditions of employment. Likewise, gender-based stereotypes, perceptions or comfort level cannot interfere with an employee’s right to work free from discrimination, including harassment.
The EEOC is filing complaints against private employers and federal agencies on behalf of transgender employees. The agency is using Title VII to pursue discrimination allegations. Most important for employers--the EEOC is winning.
E. Department of Labor Guide to Restroom Access for Transgender Workers
In 2015, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued a guide[2] addressing restroom access for transgender employees. The Guide states that “[A]ll employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”
Employers are required to provide toilet facilities to all employees under the OSHA Sanitation Standard. This is a matter within OSHA’s jurisdiction. Employers must allow employees prompt access to toilet facilities and cannot impose unreasonable restrictions on employee use.
Employers cannot single out transgender employees by requiring them to use gender-neutral or other specific restrooms. Restrictions like those can result in employees not using the restroom while at work and can result in serious illness or injury to the employee. Employees may have a worker’s compensation claim because the employer created the situation that caused the illness or injury.
The Guide includes samples of state and local government provisions from various states.
F. Court Action
Federal appellate courts are recognizing discrimination against transgender persons as sex discrimination that is prohibited by federal law. These decisions let to the 2012 EEOC decision in Macy v. Holder, holding that such discrimination violates Title VII of the 1964 Civil Rights Act. The EEOC concluded the employer engaged in sex discriminated because the mistreatment was motivated by Macy’s gender transition.
The EEOC ruled that Title VII protects employees who fail to conform to stereotypes concerning how a man or woman “should look or act.” This reasoning follows the U.S. Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins. That decision established the fact that gender stereotyping is actionable as sex discrimination.
The Macy decision followed the 2011 decision from the Eleventh Circuit Court of Appeals in Glenn v. Brumby. That case involved a transgender woman fired from her job after announcing her intent to transition.
The Macy decision is binding on the federal government and establishes that federal transgender workers have Title VII protections. The decision also supports transgender persons working in the public and private sectors because they can file complaints with the EEOC.
In 2014, the EEOC filed a lawsuit against the Lakeland Eye Clinic in Florida under Title VII alleging unlawful employment practices based on sex. Lakeland Eye Clinic entered into a consent decree with the EEOC in 2015 and agreed to pay $150,000 to the terminated transgender employee. The Clinic also agreed to implement a nondiscrimination policy that included “gender identity” and provide management training for all supervisory personnel.
The decree requires Lakeland to provide annual training for all employees concerning the prohibition against transgender and gender stereotype discrimination under Title VII. And the Clinic is required to notify the EEOC before the training takes place and provide the agency with the materials that are given out at the training. These notification requirements last for two years.
In the 2015 Lusardi v Department of the Army decision, the EEOC held the U.S. Army culpable for discriminating against a transgender Army civilian employee in violation of Title VII’s ban on sex discrimination. This involved a bathroom issue when the Army denied the employee access to a bathroom consistent with her gender identity. The employee is entitled to compensatory damages and attorney fees. The Army must implement specific training, post notices, implement policies at the Redstone Arsenal in Huntsville, AL and discipline the supervisors involved in the harassment and discrimination.
Litigation is expensive and can be avoided with comprehensive, intelligent company policies.
Transition related health care benefits
A growing number of private sector companies are offering transgender inclusive health care coverage. In 2015, the U.S. Office of Personnel Management (OPM) removed its requirement that insurance companies exclude transition-related healthcare coverage.
The Affordable Care Act of 2010 prohibits sex discrimination in federally funded health care facilities. In 2012, he U.S. Department of Health and Human Services clarified that this includes gender identity. The ACA also prohibits insurance providers from refusing to cover a person based on a pre-existing condition--including being transgender.
Most insurance companies continue to exclude transition-related health care (i.e. hormone therapy or sex reassignment surgery). However, insurers cannot have an automatic or categorical exclusion of transition-related care. That violates the nondiscrimination provisions of the ACA. The law also prohibits insurers from placing limits on transition-related care coverage if there is no legitimate, nondiscriminatory reason to do so. Insurers also cannot deny transgender persons coverage for a gender-specific or gender-related service based on the gender listed in the insurer’s records. For example, a transgender woman must be covered for prostate exams; a transgender man must be covered for gynecological care.
Transgender individuals who have the financial resources to self-fund their transition can deduct those expenses as a medical expense on their federal tax returns.
Conclusion
There are myriad issues facing transgender employees, cisgender employees and employers. Along with those issues are many questions but few definitive answers. One thing is clear, however, things are changing and employers are facing new challenges in addressing employee diversity.
There is considerable confusion and misunderstanding among well-intentioned people as well as those who refuse to consider inherent differences in beliefs and appearances. In order to prevail, cooler heads must take the lead. Consider the facts and work with all parties to arrive at a sensible solution. Just like Rome, the required changes and attitude adjustments will not be built in a day.
Prepared by:
Joan M. Burda, Esq.
216-832-8825
jmburda@mac.com
www.lgbtlaw.com
Twitter: @joanmburda
LinkedIn: linkedin.com/in/joanmburda
Workplace TG Legal Issues October 6, 2016
© Joan M. Burda, 2016
[1] http://www.dsm5.org/documents/gender%20dysphoria%20fact%20sheet.pdf (last viewed 6/3/2015)
[2] https://www.osha.gov/Publications/OSHA3795.pdf
IN THE WORKPLACE
Introduction
Employment issues involving LGBT employees are trending and the situation is fluid. There are many questions and much confusion about employee rights and employer obligations. There seems to be a particular interest in transgender issues especially involving the bathroom. What follows is an overview of the developments in this area. This is not legal advice. The information is intended to educate and prompt review of company policies that affect the people involved.
A. Definitions
Words matter and understanding the language is essential to ensure that people are able to communicate with each other. It is important to be familiar with the language used by the LGBT community. It is also important to respect a person’s self-identification. Never assume another person’s identity based on appearance. It is best to ask the individual how they identify and, for transgender individuals, which pronouns they prefer. Respecting their wishes is also important.
LGBT, LGBTQ: These acronyms refer to Lesbian, Gay, Bisexual, Transgender and Queer. Although all of the different identities within “LGBT” are often lumped together, there are specific needs and concerns related to each individual identity.
Bi-Gender: One who has a significant gender identity that encompasses genders, male and female. Some may feel that one side or the other is stronger, but both sides are there.
Bisexual: A person who is emotionally, physically, and/or sexually attracted to more than one gender. Also called “bi”.
Cisgender: A person whose gender identity and expression matches the gender typically associated with their biological sex. For example: a female who identifies as a woman.
FTM: A person who was assigned female at birth but identifies and lives as male; a person who transitions from “female-to-male”; also known as “transgender man.”
Gay: A homosexual person, usually used to describe men but may be used to describe women as well.
Gender Dysphoria: This terms replaces “gender identity disorder” in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). The diagnosis applies to people who identify with a gender that is contrary to the one assigned at birth. “For a person to be diagnosed with gender dysphoria, there must be a marked difference between the individual’s expressed/experienced gender and the gender others would assign him or her and it must continue for at least six months. In children, the desire to be of the other gender must be present and verbalized. This condition causes clinically significant distress or impairment in social, occupational or other important areas of functioning.”[1]
Gender dysphoria is not the same as “sexual orientation.” A person’s internal sense of “gender” is different from one’s “sexual orientation.”
Gender expression: Refers to the ways in which people externally communicate their gender identity to others through behavior, clothing, hairstyle, voice and emphasizing, de-emphasizing or changing their body’s characteristics. Gender expression is not necessarily an indication of sexual orientation.
Gender identity: The sense of “being” male or “being” female. For some people, gender identity is in accord with physical anatomy. For transgender people, gender identity may differ from physical anatomy or expected social roles. It is important to note that gender identity, biological sex, and sexual orientation are not necessarily linked. It reflects an individual’s internal sense of being male, female or something else. Since gender identity is internal it is not necessarily visible to others.
Gender Nonconforming: This is a broader term that can include “gender dysphoria.” The term applies to people whose gender expression is different from societal expectations related to gender. It also applies to those who feel they are neither only male nor only female.
Genderqueer: A term which refers to individuals or groups who “queer” or problematize the hegemonic notions of sex, gender and desire in a given society. Genderqueer people possess identities that fall outside of the widely accepted sexual binary. These individuals identify as neither entirely male nor female. Genderqueer may also refer to people who identify as both transgender AND queer, i.e. individuals who challenge both gender and sexuality regimes and see gender identity and sexual orientation as overlapping and interconnected.
Gender Reassignment Surgery: Surgical procedures that change one’s body to make it conform to a person’s gender identity. This may include “top surgery” (breast augmentation or removal) or “bottom surgery” (altering genitals). Contrary to popular belief, there is not one surgery; there are many different surgeries. “Sex change surgery” is considered a derogatory term.
Heterosexual: A person who is emotionally, physically, and/or sexually attracted and committed to the members or a gender or sex that is seen to be the “opposite” or other than the one with which they identify or are identified. Also called “straight”.
Homophobia: Thoughts, feelings, or actions based on far, dislike, judgment, or hatred of lesbians, gays and bisexuals. Homophobia has roots in sexism and can include prejudice, discrimination, harassment, and acts of violence.
Homosexual: This is a clinical term that originated in the late 1800s. It has come to be viewed as a pejorative term intended to insult and denigrate a LGBT person. Historically it is used to describe a person who is primarily or exclusively attracted to members of what they identify as their own sex or gender.
Intersex: A term used for people who are born with external genitalia, chromosomes or internal reproductive systems that are not traditionally associated with either a “standard” male or female.
Lesbian: A homosexual woman. A feminine lesbian is often referred to as “femme”; a more masculine lesbian can identify as “butch”. These sub-definitions should not be assumed based on an individual’s appearance or presentation.
Passing: A term used by transgender people to mean they are seen as the gender with which they self-identify. Ex: a transgender man (born female) who most people see as a man.
Queer: Used as an umbrella identity term encompassing lesbian, questioning people, gay men, bisexuals, non-labeling people, transgender folks, and anyone else who does not strictly identify as heterosexual. Some use “queer” as an alternative to “gay” in order to be more inclusive since the term does not convey a sense of gender.
Some people identify as “queer” to distance themselves from the rigid categorization of “straight” and “gay”. Some transgender, lesbian, gay, questioning, non-labeling, and bisexual people, however, reject the use of this term due to its connotations of deviance and its tendency to gloss over and sometimes deny the differences between these groups. “Queer” originated as a derogatory word. Currently, it is being reclaimed by some people and used as a statement of empowerment.
Sexual orientation: A person’s emotional, physical and sexual attraction and the expression of that attraction with other individuals. The term describes a person’s attraction to members of the same sex or different sex. Some of the better-known labels or categories include “bisexual” (or “multisexual”, “pansexual”, “omnisexual”), “lesbian”, “gay” (“homosexual” is more clinical), or “heterosexual”.
Transgender: This term has many definitions. It is frequently used as an umbrella term to refer to all people who deviate from their assigned gender at birth or the binary gender system. This includes transsexuals, cross-dressers, genderqueers, drag kings, drag queens, two-spirit people, and others. Some transgender people feel they exist not within one of the two standard gender categories, but rather somewhere between, beyond or outside of those two genders. This is a broad term and is good for non-transgender people to use.
Transgender Man: A term for a transgender individual who identifies as male (female to male transition).
Transgender Woman: A term for a transgender individual who identifies as female (male to female transition).
Transition: The period during which a person begins to live as their new gender. Transitioning may include changing one’s name, taking hormones, having surgery or changing legal documents (driver’s license, birth certificate, Social Security record, passport) to reflect their new gender.
Transphobia: The fear or hatred of transgender people or gender non-conforming behavior. Like biphobia, transphobia can also exist among lesbian, gay, and bisexual people as well as among heterosexual people.
Transsexual: This is a controversial term and is not universally accepted within the transgender community. Many transgender people reject the term but it continues to be used by some. Transsexual is generally viewed as a subset of transgender. The American Psychiatric Association removed “transsexualism” as a diagnosis in the new edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). It has been replaced by the diagnosis term, gender dysphoria.
B. Federal & State Law
Ohio law does not prohibit discrimination based on “gender identity” and “sexual orientation.” Governor Kasich did issue an Executive Order prohibiting discrimination based on “sexual orientation.” He removed the protection for transgender state employees.
There is no federal antidiscrimination statute that specifically includes “gender identity” and “sexual orientation” as a protected class. In July 2014, President Obama issued Executive Order 1148 that explicitly prohibits federal agencies and private firms receiving federal contracts from discrimination based on either of those categories.
A growing number of private companies now include “gender identity” and “sexual orientation” in their nondiscrimination policies. Eighteen states and the District of Columbia expressly ban “gender identity” discrimination in public and private workplaces. Including the terms “gender identity” and “sexual orientation” in a company’s nondiscrimination policy and in employment contracts or collective bargaining agreements creates a contractual obligation that must be enforced.
Language in the federal Americans with Disabilities Act (ADA) explicitly excludes transgender people. But, disability claims based on state law have been successful.
Employers must carefully review complaints from LGBT employees even though there are no federal or state laws that explicitly include “gender identity” and “sexual orientation.” There may be actionable complaints based on two other allegations: “quid pro quo” and “hostile environment.”
Quid pro quo harassment: Literally means “this for that” and it is often blatant. This can occur when a superior uses a job reward (i.e. a raise or promotion) or punishment (i.e. a firing) to force an employee into a sexual relationship.
Hostile environment harassment is subtler. Employees claiming a hostile environment exists in the workplace that is so disruptive it prevents them from doing their job.
Management must be sensitive to workplace behaviors that can result in employee complaints.
C. The Elephants in the Room
Where to Pee
Bathroom issues have been the bain of civil rights throughout U.S. history. For many years, blacks could not use the same bathroom as whites.
Opponents of the Equal Rights Amendment argued that it would require men and women to use the same bathroom.
Fears about allowing gay men (and lesbians) to serve openly in the U.S. military were often based on the communal shower argument.
In 2016, a number of state legislatures have introduced or passed laws that require people to use the bathrooms that reflect the gender listed on their birth certificates. The reaction has been swift and significant. North Carolina’s law, for example, resulted in several large corporations withdrawing planned projects from the state or reducing their corporate imprint. And, the NCAA and the NBA moved collegiate and professional high-profile competitions out of the state. Mississippi also passed a “bathroom law” yet has not experienced the same response--possibly because it is the poorest state and there is little corporate interest in it.
Religion
The other elephant in the room deals with religious objections to recognizing LGBT rights. The argument revolves around a Biblical interpretation that declares homosexuality a sin. People that adopt this belief claim respecting LGBT civil rights requires that they violate their religious beliefs.
In 2013, the U.S. Supreme Court decided that the government is prohibited from “substantially burdening a person’s exercise of religion even if the burden results from a rule of general applicability.” This was the Burwell v. Hobby Lobby decision and the case involved a provision in the Affordable Care Act requiring companies to provide coverage for contraceptives in their insurance policies. Hobby Lobby claimed the requirement ran counter to the company’s religious beliefs. It was the first time a corporate entity was deemed to have religious beliefs.
No one has figured out what happens if competing religious beliefs arrive at different conclusions on a given topic and how that affects existing civil rights laws.
There has been no discussion of whether employers must honor everyone’s competing individual religious beliefs without violating any one person’s beliefs. Can a company’s (or its owner’s) religious beliefs justify discrimination based on race, color, national origin or religion? Does the First Amendment freedom of religion provision mean the 1964 Civil Rights Act is unconstitutional? It is a Pandora’s box waiting to be opened.
D. Equal Employment Opportunity Commission (EEOC)
The EEOC decided that employers cannot deny an employee equal access to a common restroom that conforms to the persons gender identity. Doing so constitutes sex discrimination and is actionable under Title VII.
Employers cannot require the transgender employee to provide proof of surgery or any other medical procedure. Employers cannot avoid providing equal access by restricting the transgender employee to a single-user restroom instead--UNLESS that single-user restroom is available to all employees.
Of immediate importance, given the proliferation of “bathroom” bills, is that state law allowing such discrimination is NOT a defense under Title VII (42 U.S.C. § 2000e-7).
The Fourth Circuit Court of Appeals reached the same conclusion in G.G. ex.rel. Grimm v. Gloucester Cty. Sch. Bd., --F.3d --, 2016 WL 1567467 (4th Cir. 2016). The court deferred to the U.S. Department of Education’s position that Title IX prohibits sex discrimination by educational institutions. That decision is being appealed to the U.S. Supreme Court.
Confusion or anxiety by co-workers or supervisors does not justify discriminatory terms or conditions of employment. Likewise, gender-based stereotypes, perceptions or comfort level cannot interfere with an employee’s right to work free from discrimination, including harassment.
The EEOC is filing complaints against private employers and federal agencies on behalf of transgender employees. The agency is using Title VII to pursue discrimination allegations. Most important for employers--the EEOC is winning.
E. Department of Labor Guide to Restroom Access for Transgender Workers
In 2015, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued a guide[2] addressing restroom access for transgender employees. The Guide states that “[A]ll employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”
Employers are required to provide toilet facilities to all employees under the OSHA Sanitation Standard. This is a matter within OSHA’s jurisdiction. Employers must allow employees prompt access to toilet facilities and cannot impose unreasonable restrictions on employee use.
Employers cannot single out transgender employees by requiring them to use gender-neutral or other specific restrooms. Restrictions like those can result in employees not using the restroom while at work and can result in serious illness or injury to the employee. Employees may have a worker’s compensation claim because the employer created the situation that caused the illness or injury.
The Guide includes samples of state and local government provisions from various states.
F. Court Action
Federal appellate courts are recognizing discrimination against transgender persons as sex discrimination that is prohibited by federal law. These decisions let to the 2012 EEOC decision in Macy v. Holder, holding that such discrimination violates Title VII of the 1964 Civil Rights Act. The EEOC concluded the employer engaged in sex discriminated because the mistreatment was motivated by Macy’s gender transition.
The EEOC ruled that Title VII protects employees who fail to conform to stereotypes concerning how a man or woman “should look or act.” This reasoning follows the U.S. Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins. That decision established the fact that gender stereotyping is actionable as sex discrimination.
The Macy decision followed the 2011 decision from the Eleventh Circuit Court of Appeals in Glenn v. Brumby. That case involved a transgender woman fired from her job after announcing her intent to transition.
The Macy decision is binding on the federal government and establishes that federal transgender workers have Title VII protections. The decision also supports transgender persons working in the public and private sectors because they can file complaints with the EEOC.
In 2014, the EEOC filed a lawsuit against the Lakeland Eye Clinic in Florida under Title VII alleging unlawful employment practices based on sex. Lakeland Eye Clinic entered into a consent decree with the EEOC in 2015 and agreed to pay $150,000 to the terminated transgender employee. The Clinic also agreed to implement a nondiscrimination policy that included “gender identity” and provide management training for all supervisory personnel.
The decree requires Lakeland to provide annual training for all employees concerning the prohibition against transgender and gender stereotype discrimination under Title VII. And the Clinic is required to notify the EEOC before the training takes place and provide the agency with the materials that are given out at the training. These notification requirements last for two years.
In the 2015 Lusardi v Department of the Army decision, the EEOC held the U.S. Army culpable for discriminating against a transgender Army civilian employee in violation of Title VII’s ban on sex discrimination. This involved a bathroom issue when the Army denied the employee access to a bathroom consistent with her gender identity. The employee is entitled to compensatory damages and attorney fees. The Army must implement specific training, post notices, implement policies at the Redstone Arsenal in Huntsville, AL and discipline the supervisors involved in the harassment and discrimination.
Litigation is expensive and can be avoided with comprehensive, intelligent company policies.
Transition related health care benefits
A growing number of private sector companies are offering transgender inclusive health care coverage. In 2015, the U.S. Office of Personnel Management (OPM) removed its requirement that insurance companies exclude transition-related healthcare coverage.
The Affordable Care Act of 2010 prohibits sex discrimination in federally funded health care facilities. In 2012, he U.S. Department of Health and Human Services clarified that this includes gender identity. The ACA also prohibits insurance providers from refusing to cover a person based on a pre-existing condition--including being transgender.
Most insurance companies continue to exclude transition-related health care (i.e. hormone therapy or sex reassignment surgery). However, insurers cannot have an automatic or categorical exclusion of transition-related care. That violates the nondiscrimination provisions of the ACA. The law also prohibits insurers from placing limits on transition-related care coverage if there is no legitimate, nondiscriminatory reason to do so. Insurers also cannot deny transgender persons coverage for a gender-specific or gender-related service based on the gender listed in the insurer’s records. For example, a transgender woman must be covered for prostate exams; a transgender man must be covered for gynecological care.
Transgender individuals who have the financial resources to self-fund their transition can deduct those expenses as a medical expense on their federal tax returns.
Conclusion
There are myriad issues facing transgender employees, cisgender employees and employers. Along with those issues are many questions but few definitive answers. One thing is clear, however, things are changing and employers are facing new challenges in addressing employee diversity.
There is considerable confusion and misunderstanding among well-intentioned people as well as those who refuse to consider inherent differences in beliefs and appearances. In order to prevail, cooler heads must take the lead. Consider the facts and work with all parties to arrive at a sensible solution. Just like Rome, the required changes and attitude adjustments will not be built in a day.
Prepared by:
Joan M. Burda, Esq.
216-832-8825
jmburda@mac.com
www.lgbtlaw.com
Twitter: @joanmburda
LinkedIn: linkedin.com/in/joanmburda
Workplace TG Legal Issues October 6, 2016
© Joan M. Burda, 2016
[1] http://www.dsm5.org/documents/gender%20dysphoria%20fact%20sheet.pdf (last viewed 6/3/2015)
[2] https://www.osha.gov/Publications/OSHA3795.pdf