Category Archives: Title VII

Sixth Circuit Says Transgender Discrimination is Protected Under Title VII

Contributed by JT Charron, March 15, 2018

Last week, the United States Court of Appeals for the Sixth Circuit held—for the first time—that discrimination based on transgender and transitioning status violates Title VII. Although the court has previously held that discriminating against transgender employees because of gender non-conforming behaviors constitutes gender stereotyping in violation of Title VII, this decision takes it one step further—protecting all transgender and transitioning employees regardless of any outwardly observable behaviors or characteristics.

36419114 - hand about to bang gavel on sounding block in the court room

 hand about to bang gavel on sounding block in the court room

In EEOC v. R.G. & G.R. Harris Funeral Homes, Aimee Stephens was fired by her boss—and owner of the funeral home—after she informed him that she was transitioning from male to female. After investigating Stephens’s complaint of sex discrimination, the EEOC filed a lawsuit claiming that the funeral home violated Title VII by terminating Stephens’s employment because of her transgender or transitioning status and her refusal to conform to sex-based stereotypes.

The sixth circuit court of appeals reversed the trial court’s decision in favor of the employer, holding that “[d]iscrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex.” In reaching this conclusion, the court rejected the funeral home’s argument that Title VII’s definition of “sex” does not encompass transgender status, finding that “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.” The court also cited the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins, which held that Title VII requires “gender to be irrelevant in employment decisions.” According to the sixth circuit, “Gender (or sex) is not being treated as irrelevant . . . if an employee’s attempt or desire to change his or her sex leads to an adverse employment decision.”

The court also rejected the Funeral Home’s argument that the Religious Freedom Restoration Act (RFRA) precludes the EEOC from enforcing Title VII against it here because doing so would substantially burden its religious exercise. Instead, the court held, as a matter of law, that:

  • “[A] religious claimant cannot rely on customers’ presumed biases to establish a substantial burden under the RFRA”;
  • “[T]olerating an employee’s understanding of her sex and gender identity is not tantamount to supporting it”; and
  • “[B]are compliance with Title VII—without actually assisting or facilitating Stephens’s transition efforts—does not amount to endorsement of Stephens’s views.”

Practical Impact

Employers in Michigan, Ohio, Kentucky, and Tennessee should immediately review and—if necessary—revise policies, procedures, application forms, or other documents to ensure that transgender status is referenced as a protected category. Employers should also consider providing training to managers and other supervisory personnel on how to appropriately respond when an employee indicates that they are transgender and/or transitioning.

The decision also has potential ramifications for employers across the United States. It is the third federal appellate court decision in the past 12 months holding that Title VII prohibits discrimination based on an individual’s LGBTQ status. The first came last year when the seventh circuit issued its decision in Hively v. Ivy Tech Community College of Indiana (as we previously blogged about), holding that discrimination based on sexual orientation is prohibited by Title VII. The second circuit reached the same conclusion on February 26, 2018, in Zarda v. Altitude Express. As courts take a more expansive view of Title VII’s protections, employers everywhere should take proactive measures to ensure they are complying with this evolving area of the law.

 

Eleventh Circuit Resurrects Transgender Mechanic’s Title VII Gender Discrimination Claim

Contributed by Suzanne Newcomb

Recently the Eleventh Circuit Court of Appeals (covering Georgia, Florida and Alabama) reversed a District Court decision which dismissed a Title VII gender discrimination claim brought by an auto mechanic who is transgender, Chavez v. Credit Nation Auto Sales, LLC (11th Cir. Jan. 14, 2016). In reinstating the plaintiff’s claim, the Eleventh Circuit reaffirmed its earlier pronouncement that discrimination based on gender nonconformity is unlawful sex discrimination.

The employer claimed to have terminated the plaintiff for sleeping on the job. Because plaintiff admitted she fell asleep while on the clock, the District Court granted the employer’s motion for summary judgment finding there was no evidence of pretext and therefore, plaintiff could not   prove discrimination as a matter of law. The Court of Appeals disagreed.

DiscriminationDespite her admission, the Court of Appeals concluded that plaintiff presented sufficient evidence from which a jury could conclude that discriminatory intent was a motivating factor in the termination decision. Plaintiff presented evidence that the decision maker was nervous about her gender transition and its ramifications on the business, blamed plaintiff’s gender transition for another employee’s resignation, felt plaintiff’s gender transition would negatively impact his business, told plaintiff not to bring up the subject of her gender transition with other employees, and instructed her not to wear a dress or anything “outlandish.” This evidence, combined with testimony from another member of the management team that plaintiff was subjected to heightened scrutiny as the employer searched for a “legitimate” reason to terminate her employment, the Eleventh Circuit concluded, was enough to survive summary judgment on a mixed motive theory.

The decision reminds employers that while sexual orientation and gender identity are not protected classes under federal law per se (though several states and municipalities have added specific LGBT protections to their own anti-discrimination laws), Title VII has long been interpreted to prohibit employers from mandating that employees conform to gender-specific stereotypes and to prohibit discrimination against those employees who fail to adhere to such stereotypes.

As far back as 1989, in Price Waterhouse v. Hopkins, the U.S. Supreme Court made clear that Title VII prohibits discrimination based on an employee’s failure to conform to gender norms.  Evidence that the accounting firm insisted Hopkins conform to gender stereotypes – it was alleged that to increase her chance of making partner she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry” — amounted to gender discrimination.

To avoid similar allegations, employers must be sensitive to the rights of all employees, even in jurisdictions in which sexual orientation and gender identity are not specifically articulated as protected classes under relevant law. Concern about the perceptions of customers or other employees does not justify disparate treatment against employees who fail to follow gender-specific social norms.

Title VII Update: No Adverse Action for Suspension With Pay

Contributed by Noah A. Frank

Recently, a Federal Appellate Court held that there was no adverse action under Title VII for an employee who was suspended with pay during an investigation.  Jones v. Se. Penn. Transp. Auth., — F.3d—, No. 14-3814 (3rd Cir. Aug. 12, 2015).

The underlying facts are straight forward and typical of an employment discrimination suit:

  • The supervisor suspected an employee was guilty of wage theft.
  • The supervisor suspended the employee with pay.
  • The employee informed the company’s EEO/Human Resources Department that she intended to file a complaint against the supervisor; at the investigation meeting the next week, the employee alleged for the first time that the supervisor sexually harassed and retaliated against her.
  • Separately and simultaneously, the time theft issue was investigated. The Company concluded that the employee engaged in misconduct. Her paid suspension was converted to an unpaid suspension, pending formal termination.
  • The employee filed charges of discrimination against the company and supervisor with the state human rights administrative agency.

The trial court granted the Company summary judgment as to Title VII discrimination, which the Appellate Court affirmed (note: the Appellate Court did not review, and declined to opine, whether paid suspension may amount to Title VII retaliation). The Appellate Court found that a paid suspension is not a refusal to hire or terminate, “by design” does not change compensation, and does not cause a “serious and tangible” alteration of employment terms, conditions, or privileges. Further, these terms and conditions of employment ordinarily include the possibility that an employer will be subject to disciplinary policies. Other workers identified by Employee as having engaged in somewhat similar misconduct were readily distinguished and not comparable.

Key Points for Employers 14815491_s

In an increasingly regulated, employee-friendly, and litigious business environment, employers must ensure that they protect the company from employee misconduct and subsequent claims by disgruntled workers and former workers. To do so, employers must:

  • Treat all similarly situated employees with consistency – if there is a change in policy/enforcement, document the basis and effective date. Ensure supervisors are trained on enforcement and employees have notice of the policies.
  • Permitting an employee to continue to work while suspected of gross misconduct may make later termination seem suspect to an administrative agency (including unemployment), and even a jury. Therefore, promptly remove an employee suspected of misconduct from the workplace. If the misconduct is merely suspected, suspend with pay pending investigation and determination.
  • Conduct and document an investigation into misconduct – secure and save evidence such as timesheets, cash register tickets, or CCTV video.
  • Adverse employment actions (suspension without pay, demotion, transfer, termination, and the like) should be based on good faith business reasoning.
  • And, of course, involve counsel if an investigation becomes risky, an employee claims discrimination or harassment, or it appears there may be litigation on the horizon.