Sexual harassment and sex discrimination

In this me too moment, more women are standing up for themselves at work. And previously oblivious or naive men are beginning to take notice. The result is a new opportunity to make significant gains for women in the workplace. Meanwhile, toleration of homophobia is also on the wane, and sex-stereotyping has been recognized as a workplace problem.

But don't imagine that things have gotten easier for women who speak out at work just yet. Employees often find it helpful to understand the law before speaking out at work. This gives them the tools they need to protect themselves against potential retaliation. The firm provides advice and representation to women in this situation.

More info from the blog

We write about this issue all the time. Read more in the excerpts below from our blog!

Ending Forced Arbitration of Sexual Assault and Sexual Harassment

Currently, companies can require employees to sign away their constitutional right to a jury trial, so they cannot bring to court any claims that they were assaulted, harassed or discriminated against on the job. If the employee signs the agreement - and refusing to sign means losing the job - they will be forced to arbitrate these claims, which basically means letting a randomly selected lawyer decide the outcome and the damages, instead of a bona fide judge and jury. The worst part of arbitration is that juries are far more likely than random lawyers to understand - and appropriately value - the emotional harm suffered in these cases.

On February 10, 2022, the United States Congress sent a bill to the President for signature which would partially address this issue. The bill is called the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. This was a bipartisan bill supported by all Democrats and a (slight) majority of Republicans, including Mississippi Senators Cindy Hyde-Smith and Roger Wicker and Representatives Trent Kelly and Michael Guest. The only member of Mississippi’s congressional delegation to oppose the bill was Steven Palazzo. (To our friends on the coast, do with that what you will.) Once signed by President Biden, this new law will give workers back their rights. In certain situations, that is. This law only goes after forced arbitration of sexual assault and sexual harassment claims. Ending forced arbitration of these claims will restore that power and that right to millions of abused workers. However, this should be the beginning of the fight against forced arbitration – not the end.

The law does not cover racial harassment. So employees called the n-word, threatened with nooses, and even assaulted because of race can still be deprived of a jury trial. Same for the heckling, abuse, and assault of a religious person. Or disabled. Or aged. The law does not cover any other kind of civil rights violations except specifically sexual harassment.

So what do we do now?

First, know your rights. If you have signed a forced arbitration agreement with your employer, you need to know that it will soon be void as to claims of sexual assault and sexual harassment. Once the law is passed, you will not be compelled to arbitrate your claims. While the law is not retroactive (that is, it won’t kick out claims that are already being arbitrated), agreements like this will be unenforceable going forward.

Second, we need to advocate for an end to forced arbitration of labor and employment claims altogether. Corporations use forced arbitration to gain yet another advantage over workers, and it is time for us to stop them. President Biden, lawmakers like Senators Bernie Sanders and Elizabeth Warren, and labor leaders have already called for a broad law against forced arbitration of workers’ rights disputes, and we need to join that fight. We should contact our congressional leaders to thank (most of) them for supporting this bill and call on them to protect workers’ rights across the board. The only way for workers to respond to corporate power is by working together.

New pay discrimination law in Mississippi

On March 30, 2022, the Legislature passed the Mississippi Equal Pay for Equal Work Act. By strong bipartisan majorities, both the State House and the State Senate empowered Mississippi workers to ensure that they will not be paid less for their work because of their sex. Mississippi owes a debt of gratitude to the activists and leaders who have worked so hard for the right to equal pay for equal work. However, the law is far from perfect. While the main purpose of the law is to protect Mississippi women from pay discrimination, some leading advocates have expressed concern and even opposition to the final version of the bill.

Having reviewed the law from my perspective as a practicing employment civil rights lawyer, I agree that the law falls far short of what the people of Mississippi deserve. Still, I think that the law will do some good in some cases. At the least, it will fill in some of the gaps left open by the two primary federal statutes addressing the issue, the Equal Pay Act and Title VII. To understand the effects the new law could have, let’s consider some specific provisions of the law.

The law does not cover everyone, only those who work for an employer with five or more employees. As a practical matter, this is perhaps only a slight expansion of the federal EPA's coverage. And it only covers employees who are full-time, 40+ hours a week. I find it hard to understand why the Legislature believes part-time workers are less deserving of equal pay for equal work than full-time workers. Taken together, these definitions will mean the law is only a very slight expansion beyond existing federal protections.

And the remedy is not very strong. This may be where the new law fails workers the most. Under the MEPEWA, workers who have been paid less because of their sex are only entitled to back pay (with interest) plus legal fees and costs. Meanwhile, the federal EPA allows workers to recover liquidated damages—or double back pay—while Title VII allows workers to recover compensatory damages—money for the emotional and mental pain caused by invidious discrimination. The MEPEWA also fails to provide for punitive damages to punish business that repeatedly and willfully violate the law. If the Legislature wants to truly eliminate sex-based pay discrimination, it should amend the MEPEWA to allow workers to recover liquidated, compensatory, and punitive damages.

Many leading advocates are particularly worried about the language in the law that articulates the reasons other than sex that an employer may use to justify paying workers unequally. Respectfully, I am not particularly worried about this provision. After all, if any non-sex reason is a defense as the statute states elsewhere, then the listing of examples basically does nothing to change the meaning of the statute.

Like any new law, the MEPEWA leaves many questions unanswered. Surprisingly, the law does not define terms like “sex” or "retaliation." Will the law cover discrimination based on sexuality? Will it cover retaliation by workplace bullying and unfair discipline? The answers are not clear

All in all, I am cautiously optimistic about the Mississippi Equal Pay for Equal Work Act. I think it will help workers who could not have found any protection in federal law, but I believe that the people of Mississippi still deserve more. Most of all, I hope that the passage of this law will give more workers the courage to fight for their human rights to be free of discrimination and be paid fairly for their work. I also hope that the Legislature will build on the work it has done here to truly make Mississippi a place of equal employment opportunity.

Breastfeeding discrimination is unlawful

Under federal law, it is illegal to discriminate against an employee because she was lactating or expressing milk. EEOC v. Houston Funding II, Ltd., 717 F.3d 425, 428 (2013). This means that, if the employer gives breaks to employees for other reasons - smoke breaks, bathroom breaks, etc. - it also has to give comparable breaks to pump milk. Hicks v. City of Tuscaloosa, 870 F. 3d 1253, 1260-61 (11th Cir. 2017). The Supreme Court has spoken, and there is no longer any room to doubt it. Young v. United Parcel Service, Inc., 135 S.Ct. 1338, 1354 (2015).

Mississippi state law gives the same guarantee to employees, even of very small employers not covered by federal law: No employer shall prohibit an employee from expressing breast milk during any meal period or other break period provided by the employer. Miss. Code § 71-1-55.

The Fair Labor Standards Act - more famous for guaranteeing minimum wages and overtime - was recently amended to guarantee (unpaid) pumping breaks. The employer shall provide (A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk; and (B) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk. 29 U.S.C. § 207(r)(1). If an employer violates this law, and the employee makes a complaint about it, the employer cannot retaliate against the employee for it. 29 U.S.C. § 215(a)(3).

There are extremely compelling reasons for this law, as we've written about before: workplace protections for breastfeeding can save lives and improve the health and intelligence of the next generation of Americans.

Not being proactive about protecting breastfeeding can open the employer to an embarrassing and potentially costly lawsuit - in addition to being illegal and unwise.

So get the word out. You can work and breastfeed. You don't have to accept the bathroom as good enough. Pumping breaks are protected. Breastmilk should be exclusive to six months and the primary nutrition for a year. Save the babies.

Breastfeeding and pumping at work

Today's post is based on the excellent work of Dr. Joan Younger Meek, MD, MS, FAAP, FABM, IBCLC. Doctor Meek is the Past-Chair of the American Academy of Pediatrics Section on Breastfeeding and the Associate Dean for Graduate Medical Education at Florida State University College of Medicine.

The benefits of breastfeeding for children and mothers are clear. It prevents infant illnesses, promotes optimal growth of the child and improves the intelligence and health of the child throughout his or her life. Lack of breastfeeding worldwide is thought to be responsible for 800,000 childhood deaths a year. Breastfeeding also has health benefits for the mother. About 20,000 cases of preventable maternal death from breast cancer are attributed to lack of breastfeeding.

The scientific and medical consensus is that babies should be exclusively breastfed for at least the first six months of life, with continued breastfeeding at least through the first year of life and beyond, as long as mutually desired by mother and child. Breast milk should remain the primary source of nutrition throughout the first year.

A lack of workplace support for breastfeeding contributes to failure to follow these essential health recommendations. Rules guaranteeing pumping breaks are associated with an 8-9 percentage point increase in exclusive breastfeeding. Lactation rooms and breaks to express breastmilk increase total breastfeeding at 6 months by 25%. For this reason, the medical and scientific community overwhelmingly supports recent changes in the laws protecting breastfeeding, and particularly pumping at work.

These changes include requirements that all employers provide breastfeeding mothers paid pumping breaks as needed (in a private place other than the bathroom).

Breastfeeding is one of the most powerful experiences mother and child can share. The mother can nurture her child in this unique and loving way, knowing that she is giving her child better health, intelligence, and wellbeing for the rest of her child’s life. But to do so, a working woman needs the employer to provide a protected space and time where she can pump. It is not much, but it is absolutely essential. A new mother should not have to choose between her job and her child’s wellbeing.

A Hancock County Sheriff’s Department corrections officer claims she faced harassment and retaliation when she asked for break time to pump breast milk for her newborn.

Crystal Ford, a law enforcement officer at the Hancock County Sheriff’s Department located in Bay St. Louis, has sued her employer for violating her rights under the Fair Labor Standards Act (FLSA). The law requires employers to give nursing mothers breaks in an appropriate place to express breast milk. Ms. Ford claims that the Sheriff’s Department repeatedly denied her breaks to pump and forced her to pump in an employee restroom.

On September 2, 2018, Ms. Ford requested permission to return home to retrieve a part of her breast pump. A deputy told her she could not leave and said that he did not give a f--k about Ms. Ford’s emergency. When she attempted to leave, Ms. Ford was locked into the prison facility and mocked over the prison speaker system.

Ms. Ford developed a mastitis infection due to her inability to pump regularly at work. For her health, Ms. Ford took a demotion to a part-time, on-call job, but she was rarely called into work. She later asked to return full time but was not rehired.

According to Mississippi attorney Joel F. Dillard, who is representing Ms. Ford in the lawsuit, The rules are clear: Employers must allow women to nurture their children by pumping at work. Those rules were broken and ignored by the Sheriff’s Department. Ms. Ford is suing to enforce these rules, which should protect every mother and child.

Homosexuality and Bostock's sex discrimination analysis

You may have heard something about our subject for today. As the headlines shouted it Supreme Court outlaws discrimination against gays or something like that. And yes, that is the most important practical element of the Court's decision. It is something that a lot of people have been working on for quite some time - including here at this firm, as we have discussed more than once on this blog.

But the headline just scratches the surface. Most people probably do not realize just how important this case will be - and for reasons that having nothing to do with homosexuality. It will probably be cited tens of thousands of times in the next few years, often in cases having nothing to do with sexual orientation. I've already cited it twice, and the case has only been out a week or so. The logic of the case is revolutionary - simple, but transformative.

The key is the word because. Title VII says an employer cannot discriminate against any individual . . . because of such individual's race, color, religion, sex, or national origin. As I have said previously, the logical view is that this means that any employer action which differentiates between the sexes is unlawful sex discrimination.

In Bostock the Court agreed. It interpreted because as meaning a strict kind of what is called but for causation. The analysis is simple: if you imagine the same person in the same situation, and simply switch the sex, would they be treated differently? If so, this is discrimination because of sex. It does not matter what else is going on, what other factors are at play. Thus, it isn't discrimination based on homosexuality which is illegal, per se. It is just that discrimination based on sexual orientation will typically also be sex discrimination. It's about biological sex, not sexuality.

For example, imagine a man named Pat is fired. Is it discrimination? To find out, just imagine Pat were a woman. Change absolutely nothing else. Would Pat still have been fired? So, for example, if Pat is fired for sleeping with Larry. Does it matter that Pat is a man? If the answer is yes then this is sex discrimination. If the answer is no then it is not. No matter why the answer is what it is, the mere fact the answer is different because Pat is a man means it is discrimination against Pat for being a man - not for being gay necessarily, but for being a man.

This logic has surprising consequences. To take one example, there will be no more man's dress code and woman's dress code: no man can be penalized for wearing hair or clothes that meet the woman's dress code, or vice versa. Decades of caselaw goes out the window. Willingham v. Macon Telegraph Publishing Co., 507 F. 2d 1084 (5th Cir. 1975).

In fact, at first glance the decision would appear to mandate complete sex-blindness by employers. (One minor exception remains the Bona Fide Occupational Qualification (BFOQ), which we've discussed before.) Putting aside the BFOQ, any rule or decision which - even in an indirect or circuitous way - acknowledges the existence of sexual differences between employees needs careful consideration.

So, to take an even more surprising example, those subject to the Act can no longer penalize people for joining single-sex clubs.

What does this mean for efforts to combat discrimination - particularly sexual harassment? Does this mean the employer cannot see sex differences when trying to eliminate discrimination in the workplace? Not quite. It can consider the sex of the victims, but not the sex of the perpetrator.

Lets revisit Pat. If Pat supervises two employees, Nancy and Tom, and Pat treats Nancy much better than Tom because Pat prefers women, then the employer can fire Pat for doing so - as long it would fire Pat regardless of whether s/he is herself a man or woman. It is not about Pat's sex, but the sex of Pat's victims.

Back to an employer having a rule punishing people for joining same-sex clubs. Here we are getting into weird, speculative considerations. But suppose Pat joins the Drones club. The club has a rule that only men can join. If Pat were a woman and successfully managed to join, she would not be punished. But because Pat is a man, he is punished. Thus the punishment is itself discriminatory. What then, can be done to combat this kind of sex discrimination without committing sex discrimination in the process? Change what you are penalizing Pat for. Don't penalize Pat for joining the Drones, penalize Pat (when Pat is on the admissions committee of the Drones) for refusing to admit Nancy while admitting Tom. This is not about Pat's sex - you would penalize Pat for discriminating against Nancy regardless of whether Pat was a woman - but about the sex of Pat's victims, which is an acceptable consideration.

Finally, note that the same logic applies to race. Anything other than pure race-blindness will be entering a mine-field - regardless of the employer's good intentions. It will be interesting to think about the consequences there. Suppose a supervisor named Derrick posts on Facebook There is no country on earth where black people have more opportunities than America. Anyone who disagrees can just get out. Hard to imagine Derrick's own race won't determine whether the employer punishes Derrick. And how should an employer treat employees that join a racially exclusive club?

And religion may be an even more fascinating area.

In a recent survey released by noted blog fivethirtyeight.com, over 1,000 respondents were asked what should you do when you have been the victim of sexual harassment. In the scenario presented, a combination of texts and verbal encounters with a co-worker showed the co-worker making repeated sexual advances, being rebuffed, and then insulting and criticizing the victim. Respondents were given five choices, with the following results:

1. Compile the texts and confront the harasser. 7.8%
2. Compile the texts and do nothing. 6.5%
3. Compile the texts and take them to human resources to notify them ahead of any repeat incident. 40.1%
4. Compile the texts, take them to HR, and ask to be moved. 33.2%
5. None of the above is good advice. 12.5%

The law in this area is far more complicated than you might expect, and to make the best decision, it is important to understand this legal background.

Is this illegal sexual harassment?

Harassment was not explicitly addressed in the sex discrimination provisions of Title VII of the Civil Rights Act, which only spoke to adverse employment practices - typically demotion, suspension, non-hiring, termination, etc. But the Supreme Court recognized in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) that harassment because of sex can be unlawful.

But the Court explained that the harassment must be severe or pervasive and it must be because of sex, race, disability, etc. An equal opportunity harasser - that is, someone that is mean to everyone, or even a bisexual that sexually harasses on both men and women at work - is not violating the statute, as noted in among other cases, Holman v. Indiana, 211 F.3d 399 (7th Cir. 2000).

And the severe or pervasive standard is sometimes quite difficult to meet, especially in the Fifth Circuit, as the employee found in Jones v. Flagship Int'l, 793 F.2d 714 (5th Cir. 1986). My rule-of-thumb is, unless there has been either unwanted offensive touching (assault), or at least weekly explicit communication (well attested by evidence), then you can't be certain whether the court will see it as severe or pervasive - although there are many cases where far less was accepted, such as in Idom v. Natchez-Adams School Dist., 115 F. Supp. 3d 792 (S.D. Miss. 2015).

What steps should be taken to respond to harassment?

The next steps depend on the precise nature of the harassment, and the victim's goals in addressing it. For example, if the harassment is by the boss, and involves a quid pro quo - like, sleep with me or you are fired; sleep with me and you get a raise; etc. - then sometimes the best next step is to file an EEOC charge, develop the evidence, and proceed into court if the matter does not settle. This kind of harassment the employer is liable for, even if it isn't reported to HR. With that said, depending on the claim, the kind of company, and the victim's career situation, sometimes it is better to go to HR first, or to take other steps. This is a question of strategy, rather than pure law.

But if the harassment is by a coworker or customer, or if the supervisor is not engaging in any explicit quid pro quo, then a complaint to HR is generally MANDATORY before filing an EEOC charge. In fact, before the employer can be held liable, you must follow all the official procedures of the employer for reporting harassment, and give them a chance to fix it. This was the holding of the Faragher and Elerth cases. (This doctrine doesn't apply if the company has no such policy, or if the policy is futile - like reporting the misconduct directly to the harasser.)

This played out to agonizing effect in Harvill v. Westward Comm. LLC, 433 F.3d 428 (5th Cir. 2005) In that case, the plaintiff was clearly harassed:

In her deposition, Harvill testified that, during that seven-month period, Rogers grabbed her and kissed her on the cheek, popped rubber bands at her breasts, fondled her breasts numerous times, patted her on her buttocks numerous times, and came behind her and rubbed his body against her. At one point, Harvill estimated that Rogers touched her breasts or her buttocks perhaps as often as once a week—although she later stated that it may not have been as often as once a week. She also claims that on one occasion Rogers made comments to her about her sex life and her abilities in bed.

When Harvill did contact Human Resources, the company immediately separated Rogers and Harvill, after which time Harvill concedes that all harassment ceased. Therefore, Westward contends that it did take prompt remedial action that was calculated to end the harassment after Harvill bypassed [supervisor] French and took advantage of the corrective opportunities made available to her [by HR].

Pitfalls: retaliation and sham investigations

Be aware though: HR representatives are not your representatives, they are the company's representatives, and their first mission is to cover the company's butt. This may mean helping you, and it may mean proving you a liar (even if you are telling the truth).

Also be aware that going to HR about sexual harassment is statutorily protected activity: you cannot lawfully be fired or disciplined or in any other way retaliated against because of it. But that does not mean it does not happen, so be sure to document who knows about your complaint and when they learned of it. It may be helpful to tell the harasser and your boss immediately by emailing them a copy of the complaint, to prove any subsequent actions are potentially retaliation.

Taken together, this means that occassionally - rarely - the best response for some victims' goals is to ignore it and look for other work. I wish it were not so, but practically speaking, the law is sometimes not strong enough to meaningfully protect the complainant. I'm thinking most particularly of complainants in careers or environments with a small pond culture, where an informal blacklist can develop that destroys the victim's career if she complains. This is becoming far less common nowadays, but it is still true sometimes.

The bottom line: call a lawyer

The bottom line, though, is that the 73% percent of respondents to the survey that said to go to HR were generally right - and I would add that the victim should read the employee policy handbook carefully and follow it. But equally important is the advice of good lawyer first, who can keep you on the straight and narrow path to best protect your career and interests.

Sex discrimination in the workplace

Sex discrimination involves treating someone unfavorably based on whether that person is male or female. Conceptually this should be fairly straightforward: if you take a person that has been treated unfavorably, and ask what would have happened if their sex had been different, would this change anything? If so, the action should be illegal.

And for the most part this is true. For example, if an employer refuses to promote a woman because she is too assertive or brash, meanwhile praising similar qualities in her male colleagues, then it is clear that she is being stereotyped because she is a female, and that the stereotype is hurting her career. This is unlawful sex discrimination. Similar logic applies to feminine men, or people perceived as falling outside typical gender binaries for one reason or another.

So too, sexual harassment is a form of sex discrimination, because the comments, unwelcome sexual advances, requests for sexual favors, suggestions that sex is required to keep a job or gain a promotion, etc., are motivated in part by sex. Take the same employee and switch the sex and they are treated differently. ( Harassment does not have to be of a sexual nature, however, and it is also illegal to harass a woman by making offensive comments about women in general.)

But it isn't always that simple.

First, note that Congress made an exception for bona fide occupational qualifications - in other words, if the sex of the employee is itself essential to the work performed. They call this BFOQ, and it is the employer's burden to prove it - which makes sense, since this is clearly a somewhat rare exception to the general rule that work isn't sexed. Hooters, for example, somewhat famously qualifies for a BFOQ because they were able to convince the court that their business model involved selling sexual titillation by female waitresses to a straight male clientelle. This means Hooters can not only explicitly and deliberately discriminate against men, but can discriminate against women as well based on sex stereotyping to gratify patrons. Like it or not (and I don't), the Hooters case is probably a fair interpretation of what Congress meant in the statute in establishing a BFOQ exception.

Next are rules that indirectly hurt women's chances - for example, a requirement to be at least 5 feet 9 inches tall, which would exclude 95% of women and only 45% of men. (Census data) Even though this rule does not meet the test we described above for discrimination - after all, a 5.5 foot person is treated the same whatever the gender - the rule is still probably illegal. This is because the law recognizes that what may seem neutral on its face could have a serious real-world impact on the sexes. And so a rule or test like this is usually illegal unless the employer can show that the rule or test is actually related to a requirement to do the job. So, for example, a firefighter might need to lift or carry a certain amount of weight, but even though statistically women might be less likely to be able to do this than men, and even though sex isn't a BFOQ for firefighters, the strength test isn't illegal because it is needed for the job. But a height restriction might not be justified, because equipment may be reasonably adapted for shorter people, and so the adverse impact against women is not really necessary for the job and should be eliminated, even if it isn't intended to discriminate. I think the law in this area generally makes sense - though I would prefer lower proof standards for plaintiffs and stronger procedures and remedies.

But where things really start to fall apart is in the so-called sex plus cases. In these cases there is an explicitly sex-discriminatory rule with no job-related reason, and yet the courts say it is not discrimination. In the seminal case, Willingham, the court held that men could be required to wear their hair short, when no similar rule was imposed on women.

The hair rule at issue easily meets our prior definition of discrimination. If you submit two long-haired applicants identical except for their sex, they will be treated differently. It also seems to be a pretty clear case of sex-stereotyping.

But the courts have reframed this as discriminating among men on the basis of the length of their hair, and said it is not sex discrimination. This has been described as discrimination based on sex plus some additional attribute, and is not considered unlawful. The underlying motivation for the courts in deciding Willingham seems to be that it should be permitted for employers to require men and women to groom and dress differently. Why? The court's answer seems to be that the public expects women and men to look differently, and professional gooming standards are therefore different.

This is unsettlingly similar to the reasoning behind the black codes of segregation - and serves the same essential purpose. By mandating stereotypical appearance - just like unlawful expectations of stereotypical conduct - the employer is signaling distinct roles for employees based on their sex. Title VII was intended to unsettle and combat such discriminatory public standards, and to place people on an equal footing in the workplace regardless of sex, race, etc.

Indeed, if you apply the sex plus logic to any other protected category - dress codes for blacks, dress codes for the disabled, dress codes for foreigners, etc. - it becomes obvious that the court's reasoning is specious, and that the question is not whether this is discrimination or not, but whether this is a kind of discrimination the courts have decided they want to prevent. After all, there is no relevant difference in the text of the statute to justify treating sex plus cases as special, and yet that is what the courts have chosen to do.

In essence, the courts have suggested that gendered dress codes are generally not derogatory. This is both wrong and outside the court's competence. It is outside the court's competence because Congress already considered the matter and decided against discrimination itself, without inviting judicial inquiry into whether the discrimination is intended to be derogatory or not. And it is wrong because separate codes are inherently unequal, suggesting as they do unequal and often inapt gender roles.

As I see it, the employers are imposing gender stereotypes without any justification, and this is straightforward discrimination. So the length of hair, or style of skirts, or what-have-you, should be gender neutral to allow employees to make their own choices from within the available options. There is no BFOQ, no reason at all for a garden-variety retailer be requiring gender performances of these kinds from employees.



Sexual Orientation and Gender Identity Employment Discrimination

As I wrote about yesterday, the EEOC has taken a strong position against sexual orientation and gender identity discrimination in the workplace. For federal employees, this position is the controling law, since the other agencies are subject to the views of the Office of Federal Operations in the EEOC.

But for people working in the private sector - or for state governments - the views of the EEOC are not enough, and the courts must also be convinced. Although for most agencies, the courts usually follow the agency's views on the law they enforce (what is called "Chevron deference") the EEOC is different, and, basically, the courts will consider the EEOC's position convincing only if they find it convincing (what is called "Skidmore deference").

So, what have the courts said about employment discrimination based on sexual orientation or gender identity? The answer may surprise you.

Transgender Protection

Interestingly, transgender people appear to be doing better than gay, lesbian, and bisexual people in this respect. Some circuits appear to have accepted the argument that discrimination against a transgender person can be a form of sex stereotyping under the Supreme Court's decision in Price Waterhouse v. Hopkins. See, e.g., Glenn v. Brumby, 663 F. 3d 1312, 1315-21 (11th Cir. 2011).

But the question isn't settled. For example, the Tenth Circuit in Etsitty v. Utah Transit Authority, 502 F. 3d 1215 (10th Cir. 2007), after holding that transgender is not protected per se, danced around the question of whether transgender could be protected as a from of stereotyping discrimination. The court ultimately held that the employer was lawfully permitted to enforce a rule about men's or women's bathrooms based on the birth sex of the employee.

The Fifth Circuit, meanwhile, which covers Mississippi, does not appear to have directly considered the question. In a footnote to an absolutely riveting decision, the en banc Fifth Circuit recently cited Glenn v. Brumby with approval - which is a very good sign. EEOC v. Boh Bros. Const. Co., LLC, 731 F. 3d 444 (5th Cir. 2013). But that case - which should have been an easy one for the court, if it really appreciated the significance of Price Waterhouse v. Hopkins - nonetheless garnered a dissent joined by six judges, and it is by no means clear what the court would do with a transgender stereotyping discrimination case.

Nor are all transgender people and allies entirely happy with the theory behind these cases. It requires them to assert what Mary Anne Case has called a thin view of their sex - i.e., that for Title VII purposes their sex is the sex assigned to them at birth. The discrimination is then based on failure to conform to gender stereotypes about how a person assigned that sex at birth should behave. (I've previously used this thin view here, and here.) I find Mary Anne Case's view of this question particularly compelling:

My own longstanding and unshaken view, driven at least as much by practical lawyering considerations as by ideological commitments, is that a thin definition of sex in law is not only more normatively attractive but is, in general, a more effective way to achieve legal protection for the broadest possible range of sexual identities, gendered traits, and the individuals manifesting them. . . . This thin, stripped down view of legal sex may not feel true to an individual’s full and rich sense of sexual and gender identity. . . . But the thin view of sex under Title VII, like a thin view of sex in U.S. constitutional law, opens the possibility of legal protection to gender benders of all stripes, regardless of their sex; regardless of whether they can or do make an identitarian claim as transgendered . . . or . . . gay; and regardless of how mild or how extreme, how occasional or how systematic, their transgression of conventional gender norms may be. This thin view of sex, interpreting the words of Title VII to mean that an employee’s sex must be irrelevant to employment decisions, underlies the Hopkins decision, which therefore stands ready to be mobilized both by those who claim a particular sexual identity and those who do not, as well as by those who have one attributed to them by those who discriminate against them in employment and those who do not.

(To read the full article, click here. For a contrary view, click here.)

Sexual Orientation bootstrapping and loopholes in Title VII protection

Now, given what the courts have said about transgender, I would think that it would seem pretty obvious that sexual orientation discrimination would be unlawful stereotyping also. It is, after all, stereotyping about the sex of the person the employee should have sex with, based on the employee's sex. But the Courts have taken a surprisingly hostile view of this claim. The following mind-blowing analysis, from the Second Circuit, is characteristic:

The law is well-settled in this circuit and in all others to have reached the question that.... Title VII does not prohibit harassment or discrimination because of sexual orientation. Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir.2000). . . . Realizing that discrimination based upon sexual orientation is not actionable under Title VII, Dawson avails herself of the gender stereotyping theory of Title VII liability according to which individuals who fail or refuse to comply with socially accepted gender roles are members of a protected class. . . . That is, individual employees who face adverse employment actions as a result of their employer's animus toward their exhibition of behavior considered to be stereotypically inappropriate for their gender may have a claim under Title VII.

When utilized by an avowedly homosexual plaintiff, however, gender stereotyping claims can easily present problems for an adjudicator. This is for the simple reason that [s]tereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality. Howell v. North Cent. Coll., 320 F.Supp.2d 717, 723 (N.D.Ill.2004). Like other courts, we have therefore recognized that a gender stereotyping claim should not be used to bootstrap protection for sexual orientation into Title VII. Simonton, 232 F.3d at 38. See also Lex K. Larson, 10 Employment Discrimination § 168.10[1] (2d ed. 2003) (It is not uncommon for plaintiffs to fall short in their Title VII pursuits because courts find their arguments to be sexual orientation (or other unprotected) allegations masquerading as gender stereotyping claims.); Kristin M. Bovalino, How the Effeminate Male Can Maximize His Odds of Winning Title VII Litigation, 53 Syracuse L.Rev. 1117, 1134 (2003) (counseling gay plaintiffs bringing claims under Title VII[to] emphasize the gender stereotyping theory and de-emphasize any connection the discrimination has to homosexuality). . . .

Similarly, district courts in this Circuit have repeatedly rejected attempts by homosexual plaintiffs to assert employment discrimination claims based upon allegations involving sexual orientation by crafting the claim as arising from discrimination based upon gender stereotypes. See Martin v. New York State Dep't of Corr. Servs., 224 F.Supp.2d 434, 447 (N.D.N.Y.2002) (The torment endured by Martin ... [t]he name-calling, the lewd conduct and the posting of profane pictures and graffiti are all of a sexual, not gender, nature.); Samborski v. West Valley Nuclear Servs., Co., 2002 WL 1477610, at *3 n. 11 (W.D.N.Y. June 25, 2002) (stating in dicta that although being called a `lesbian' [may be] based not on a perception of true sexual orientation, but rather as a means of denigrating a person because of sexual stereotype, plaintiff's gender stereotyping claim is somewhat undermined to the extent that it rests upon being called a lesbian); Trigg v. New York City Transit Auth., 2001 WL 868336, at *6 (E.D.N.Y. July 26, 2001) (rejecting gender stereotyping claim because plaintiff's Amended Complaint is rife with references to sexual orientation, homophobia, and accusations of discrimination based on homosexuality), aff'd without opinion, 50 Fed.Appx. 458 (2d Cir.2002); cf. Kay v. Independence Blue Cross, 2003 WL 21197289, at *5 (E.D.Pa. May 16, 2003) (holding that gay male plaintiff has shown that he was subjected to adverse treatment because of his co-workers['] perceptions that he was a `miss prissy' or less than [a] `real man.' As such, there is affirmative evidence that the harassment was related to perceptions about Mr. Kay's masculinity, rendering the conduct gender stereotyping actionable under Title VII.); Heller v. Columbia Edgewater Country Club, 195 F.Supp.2d 1212, 1224 (D.Or.2002) (lesbian plaintiff stated Title VII claim by alleging discrimination based upon her failure to conform to supervisor's stereotype of how a woman ought to behave. Heller is attracted to and dates other women, whereas Cagle believes that a woman should be attracted to and date only men.).

In this way of looking at things, discrimination against a masculine woman is illegal if the woman is either straight or an f-to-m transexual, but not if she is a lesbian - otherwise, a lesbian person might bootstrap and accidently benefit from the basic protections of Title VII enjoyed by everyone else! This is, in essence, a loophole in Title VII, excluding gay and lesbian people from basic Title VII protections.

In this context it seems ironic that a homosexual that sexually harasses a same-sex employee is liable for sexual harassment under the Supreme Court's unanimous decision in Oncale. Though I certainly agree with Oncale, I can't help but notice that the combination of Oncale and the cases above seems designed to place homosexuals in the worst possible position under the law, without any regard to the logic.

The tension we see in this caselaw provides a mechanism for a change of course. The logical view is that any employer action which differentiates between the sexes is unlawful sex discrimination. Propounding this view is a part of my goal as a litigator.

Four agencies charged with enforcing federal personnel laws just issued a joint guide to sexual orientation and gender identity discrimination law in the federal workplace. The federal government is really taking the lead on this issue. As the guide states:

As the nation's largest employer, the Federal Government should set an example for other employers that employment discrimination based on sexual orientation or gender identity is not acceptable. All federal workers - including lesbian, gay, bisexual, and transgender individuals - should be able to perform their jobs free from any unlawful discrimination.

What this means, in practice, is that federal employees will benefit from a more aggressive interpretation of the legal protections than working people in the private sector. Unfortunatly, the guide offers little actual guidance on the substance of these protections, but what it does offer is very encouraging.

I think the guide is most useful - for all employees, not just LGBTQ - as a basic outline of SOME of the truly byzantine procedures for enforcing civil service laws. In that respect, it is required reading for federal employees, and a good refresher or introduction for advocates. Click here to read.

On the substance, the guide states forthrightly that Title VII's prohibition on sex discrimination protects persons who have been discriminated against based on sexual orientation and gender identity. This reflects the position of the EEOC, but the courts have not yet universally accepted this view. Fortunately for federal employees, the Office of Federal Operations at the EEOC can probably be relied on to force agencies to accept the executive branch's official view. In my next post, I'll consider the state of the law on these questions in the private sector.

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