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Could the Definition of ‘Sex’ Remove Civil Rights Protection for Trans* Employees?

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The Trump Administration recently revealed plans to change the way parts of the government define sex to be based on a person’s DNA. That could spell trouble civil rights protection for Trans* employees, students, and others seeking protection based on federal gender discrimination laws. But can the Department of Health and Human Services really change anything? Find out what transgender and transsexual Americans need to know about this new proposal.

In this blog post, I will review reports that the Department of Health and Human Services is attempting to set a new definition of sex that could strip civil rights protection for Trans* employees and students from Title IX. I will explain how the law works and whether the Trump Administration has the authority to make the change.

Department of Health and Human Services Considers Defining Sex as Genetic

On October 21, 2018, the New York Times broke the news that the Trump Administration — specifically the Department of Health and Human Services (DHHS) — is considering changing the legal definition of sex under Title IX. If DHHS goes through with the change, the agency would adopt a policy that says:

“Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth. . . . The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.”

The memo is reported to have urged similar action by all the “Big Four” agencies involved in the enforcement of federal civil rights laws:

  • Department of Health and Human Services
  • Department of Education
  • Department of Justice
  • Department of Labor

Some of these federal agencies have already taken steps to roll back Trans* protective policies put in place during the Obama Administration. However, none of those efforts go as far as DHHS’s proposed redefinition of sex.

The Times described this narrow definition as “the most drastic move yet in a governmentwide effort to roll back recognition and protections of transgender people under federal civil rights law.” It said the new definition would “essentially eradicate” federal civil rights protections for Trans* Americans. But that could overstate the effect of the policy on the courts.

Title IX Protects Against Gender Discrimination in Schools

Title IX of the Education Amendments of 1972 is the primary federal civil rights protection for Trans* Americans in schools. The law says gender discrimination is illegal in any educational program or activity that receives federal funding. That includes sex-based discrimination in:

  • Enrollment and Admissions
  • Recruiting
  • Financial aid
  • Student services
  • Discipline
  • Assignments
  • Grading
  • Extracurricular activities and sports
  • Recreation
  • Housing

Title IX also applies to certain employees of schools and other educational programs, particularly where the employee is also a student.

Schools that receive federal funds are legally required to respond to and prevent gender discrimination and sexual harassment that occur within their programs. When they don’t, it can be up to the Department of Health and Human Services and the Department of Education’s Office of Civil Rights to enforce the law. Students and employees can file complaints of gender discrimination with these agencies based on their inequitable treatment of students, teachers, and others within the school setting.

Just like other federal civil rights laws, Title IX does not specifically define “sex” or “gender”. DHHS says the proposed policy abides by a court order by Judge Reed O’Connor from the Federal District Court in Fort Worth, Texas. In 2016, Judge O’Connor held “Congress did not understand ‘sex’ to include ‘gender identity’.” However, other courts have regularly found otherwise. Federal courts across the country have found federal law includes civil rights protection for Trans* individuals because treating them differently is necessarily based on gender non-conformity and sexual stereotypes.

Can the Trump Administration Change Title IX?

LGBT advocates and other Trans* supporters are upset by the proposed policy change. Within hours of the Times report, social media was filled with the hashtag #WontBeErased. Rallies took place in New York and Washington, where Trans* Americans and their supporters vocally and visibly opposed the policy.

But whether DHHS adopts the policy or not, it will not change the language Title IX or the cases interpreting it. As a federal statute, the law can only be modified by Congress, not the Trump Administration. Instead, the DHHS policy would determine which types of cases the government agency will choose to pursue when it receives complaints. In addition, any changes to a government agency’s policy require prior notice of the proposed changes and an opportunity for comment. This period will allow LGBT advocates to voice their opposition, and possibly stop the policy or modify it to include some federal civil rights protection for Trans* individuals.

The Bottom Line for Civil Rights Protection for Trans* Employees and Students

Even if the policy is adopted as proposed, it will not change federal law or erase the cases defining sex and gender discrimination to include protection for transgender and transsexual Americans. Trans* employees and students will still be able to pursue Title IX claims against educational institutions engaging in gender discrimination. However, they will likely have to do so without the help of DHHS.

At Eisenberg & Baum, we understand the importance of federal civil rights protection for Trans* Americans. Our employment discrimination attorneys, help transgender, transsexual, and gender-nonconforming workers and students protect their rights under Title IX, Title VII, and other civil rights laws. We are committed to making our office a safe space for you and your loved ones. If you feel like your employer or school is using your gender identity or expression against you, contact us. We’ll meet with you and help create a strategy that protects you against gender discrimination.

Do Civil Rights Laws Protect Against Genderqueer Discrimination at Work?

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For generations, gender in the workplace has been black and white, male and female. But as the cultural understanding of gender have grown more technicolor, the laws protecting against gender discrimination and sexual harassment haven’t always kept up. For trans* workers, intersex, and those identifying as gender non-binary or non-conforming, the question may be whether existing civil rights laws protect against genderqueer discrimination at work at all.

In this blog post, I will explore how gender discrimination laws apply to people of varying gender identities, including those identifying as non-binary or genderqueer. I will discuss how New York City’s Human Rights Law differs from the federal Civil Rights Act, and what employers can do to protect their genderqueer employees from harassment or unfair treatment at work.

Keeping Up With Evolving Gender Terminology

For those outside the LGBTQIA community, it can seem that there are new categories every day. It can be difficult to know how to refer to gender non-conforming employees. Here is a baseline to help inform the conversation:

  • Sex: A combination of biological, anatomical, or chromosomal characteristics that are used to assign gender. Most children are designated male or female at birth based on their apparent physical anatomy.
  • Gender: A person’s actual or perceived sex, generally determined through appearance, dress, self-image, identity, or behavior. This may or may not coincide with the sex assigned at birth.
  • Cisgender: A person who self-identifies with the gender and biological sex assigned at birth.
  • Transgender: A person who self-identifies with a gender or expresses a gender other than that assigned at birth. This term can sometimes be used as a broad category that includes a variety of genderqueer identities and expressions.
  • Transsexual: A medical term indicating that a person’s physical anatomy has been altered to correlate with that person’s self-identified gender. This is sometimes referred to as MTF (male to female) or FTM (female to male).
  • Intersex: A medical term indicating that a person’s anatomical or chromosomal markers are not unambiguously male or female.
  • Gender Identity: A person’s deeply held sense of gender, whether maleness, femaleness, somewhere in between, or something else not on the spectrum. This is distinct from sexual orientation.
  • Gender Expression: The outward facing demonstration of a person’s gender including, for example, name, pronouns, clothing, hairstyle, makeup, behavior, vocalizations, or body characteristics. This may or may not conform to societal gender stereotypes or the person’s sex.
  • Sexual Orientation: A person’s attraction to others of one or more sex or gender for romantic or intimate purposes.
  • Gender Non-Conforming: An identity or expression that differs from traditional gender-based stereotypes. A person identifying as gender non-conforming may or may not also identify as transgender.
  • Gender Non-Binary: An identity or expression that identifies outside the spectrum of maleness and femaleness. This may include aspects of multiple genders.
  • Genderqueer or Trans*: References to the broad category of transgender and gender non-conforming individuals while respecting the differences within the category.

No list can be exhaustive. If someone uses a term that is unfamiliar, the best thing to do is to ask them, politely, what it means to them. The same is true for personal pronouns. While many Trans* individuals use he/him/his or she/her/hers, others prefer non-gendered pronouns such as they/they/theirs or ze/hir. A person’s preferred pronouns may or may not be readily determined by their gender expression, so it’s better, and more respectful, to ask.

Genderqueer Discrimination and the Federal Civil Rights Act

Title VII of the federal Civil Rights Act protects against gender discrimination and sexual harassment at work. It does not explicitly protect against discrimination based on gender expression or genderqueer identity. However, the Supreme Court, and a variety of federal circuit courts across the country, have held that discriminating against a person because they do not conform with someone else’s expectations of gender is illegal. Workplace harassment based on a person’s deviation from a cultural gender norm is also illegal. Most of the cases on these issues included transgender individuals. However, the same arguments apply to genderqueer discrimination in the workplace.

New York City Sets the Standard Against Genderqueer Discrimination

The federal government may have left it to the courts to protect genderqueer workers, but some state and local governments have pushed ahead with laws of their own. New York City, in particular, has passed the Transgender Rights Bill which expanded gender-based protections of the local Human Rights Law (NYCHRL) to include the Trans* community. The law prohibits discrimination in employment, public accommodation, and housing on the basis of a broad definition of gender:

“[Gender is defined as a person’s] actual or perceived sex and shall also include a person’s gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth.”

The NYC government website explicitly states this includes intersex individuals. Gender discrimination under the NYCHRL occurs whenever a person is treated “less well than others” because of their broadly described gender. This means that, in New York City, genderqueer discrimination is illegal when it comes to hiring, firing, promotion, shift assignments, benefits, or any other employment discrimination. If an employer is aware of genderqueer harassment, it must take reasonable steps to protect its Trans* employees, which may include firing the harasser. For example, the NYCHRL makes it illegal genderqueer discrimination to refuse to use a person’s preferred name or pronouns.

Employer Best Practices to Avoid Gender Stereotyping and Bias Discrimination

It can be difficult for employers to keep up with the evolving standards around gender discrimination. Even though the federal law does not explicitly require companies to shield their employees from discrimination based on gender expression or identity, choosing to skirt the line can result in complaints to the Equal Employment Opportunity Commission (EEOC), lawsuits, and the loss of talent to more progressive competitors.

Employers are well advised to use the New York City standard as best practices to avoid gender stereotyping and bias discrimination in the workplace. Gender inclusive policies should include:

  • Allowing employees to designate their preferred name, pronoun, and title at the time of hire, and to change these at any time
  • Enforcing the use of designated names, pronouns, and titles except when legally required to do otherwise, regardless of legal name change
  • Allowing access to facilities (including bathrooms) and programs regardless of conformation to sex stereotypes
  • Removing gender-specific dress codes or uniforms
  • Applying uniform grooming standards regardless of sex or gender
  • Writing employee benefits in gender-neutral ways
  • Considering requests for accommodations regardless of gender (such as FMLA or parental leave)
  • Avoiding requesting medical documentation for gender-nonconforming or transgender employees to receive benefits or accommodations associated with gender or sex
  • Adopting strong anti-harassment policies that prevent violence, threats, slurs, or exclusionary behavior

The best way for employers to respect their genderqueer employees is to listen to them. By creating a confidential reporting system, employers can tap into their workers’ understanding of genderqueer life and protect them from unintended genderqueer discrimination.

At Eisenberg & Baum, we understand that gender discrimination does not always fit into convenient buckets. For members of the Trans* community, protections against genderqueer discrimination can hard to explain, and even harder to enforce. From our office in New York City, our employment discrimination attorneys travel nationwide, helping gender-nonconforming workers negotiate with employers who simply do not understand. We are committed to making our office a safe space for you and your loved ones. If you feel like your employer is using your gender identity or expression against you, contact us. We’ll meet with you and help create a strategy that protects you against genderqueer discrimination.

U.S. Supreme Court Considers LGBT Discrimination by Wedding Cake Baker

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On December 5, 2017, the U.S. Supreme Court heard oral arguments in a case that pits protections granted to a same-sex couple in a state Civil Rights Act against claims of Free Speech and Freedom of Religion by a Christian baker. The outcome is far from certain, but the effect on state and federal discrimination cases could be far-reaching.

In this post, I will review the oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, in which the U.S. Supreme Court will consider whether a wedding cake vendor had the right to refuse service to a same-sex couple due to his religious objection. I will discuss the history of the LGBT discrimination case and explain the possible outcomes.

Colorado Anti-Discrimination Act Protects Against LGBT Discrimination

There anti-discrimination laws at the federal, state, and even local level. These laws prohibit discrimination at work, in housing, and by businesses open to the public. No matter where you live in the United States, you can file a complaint with the Equal Employment Opportunity Commission (EEOC) for discrimination based on protected characteristics like race, sex, religion, old age, or disability (among others). However, federal law does not explicitly prohibit LGBT discrimination (based on a person’s sexual orientation). Whether that is included in Title VII of the Civil Rights Act is a question currently up for debate at the Court of Appeals level, where two cases recently came to two different results.

Some states, including Colorado, have chosen to provide their residents with additional, more explicit, protections against LGBT discrimination. The Colorado Anti-Discrimination Act (CADA), as amended by the Sexual Orientation Employment Discrimination Act (SOEDA), prohibits discrimination based on a person’s sexual orientation, as well as the categories covered by Title VII. If a business is open to the public or offering public accommodations, it cannot refuse anyone “the full and equal enjoyment of foods and services” based on one of the protected traits.

Same-Sex Couple and Christian Baker Clash Over Wedding Cake

In July 2012, David Mullins and Charlie Craig went to Masterpiece Cakeshop to order a custom wedding cake for their reception. Bakery owner Jack Phillips told them the bakery wouldn’t sell wedding cakes to same-sex couples. Dave and Charlie filed complaints with the Colorado Civil Rights Commission (which enforces the CADA) alleging sexual orientation discrimination. The Commission determined that the bakery had violated state law.

The baker appealed in Federal Court, claiming that he had a Constitutional right to refuse to bake a cake for an LGBT couple in light of his First Amendment rights to Free Speech and Freedom of Religion. On August 13, 2015, the Colorado Court of Appeals affirmed the Commission’s ruling, finding that the CADA did not infringe on the baker’s First Amendment rights. The Colorado Supreme Court declined to hear the case, but the baker kept appealing all the way to the U.S. Supreme Court, which granted certorari on June 26, 2017. Oral arguments in the case occurred on December 5, 2017, and a final opinion is expected before the end of the current term in June 2018.

What Does the Baker’s Religion Have to Do with the Case?

In oral arguments before the U.S. Supreme Court, Jack Phillip’s attorneys argued that the CADA was unenforceable in this case because baking custom wedding cakes was a form of expression. They said that the law prohibiting bakers from refusing service to homosexual couples based on their sexual orientation forced Phillips to make expressions he did not agree with. In particular, it would require him to celebrate same-sex marriages, which he is opposed to on religious grounds.

The attorneys claimed that because the law infringed on his First Amendment rights, the court should apply “strict scrutiny”, the highest test for government actions, and find that the prohibition on discrimination was unconstitutional. According to their argument, preventing discrimination was not enough of a reason to pass the law, since same-sex couples could choose a different baker.

Public Accommodation Laws and Religious Expression

According to the Colorado Civil Rights Commission, the CADA isn’t designed to interfere with religious expression or free speech. The CCRC said the law was an ordinary, neutral, and generally applicable public accommodation law that applies universally to companies that offer public goods and services. The Supreme Court has upheld similar laws that regulate commercial conduct to prevent discrimination against protected classes in the past. The CCRC asked the court to apply similar standards in this case.

What a U.S. Supreme Court Decision Means for Discrimination Law

The decision in Masterpiece Cakeshop, LTD v Colorado Civil Rights Commission, is probably still months away. After oral arguments, Supreme Court justices must discuss cases behind closed doors and draft opinions (often in favor of both sides). Then each justice must determine which arguments he or she will support. Whichever opinion achieves a majority (5 votes), becomes the law of the land.

Those who regularly observe oral arguments and read U.S. Supreme Court decisions know that it is often impossible to guess the outcome of a case before the opinion is released. However, a commentator for the American Civil Liberties Union (which represented the couple), said it appeared at the end of the day as though the decision will depend on the vote of Justice Anthony Kennedy. As has often been true in recent years, his vote will likely tip the scales either for increased discrimination protections or broader religions expression.

Should the U.S. Supreme Court determine that the CADA unconstitutionally interfered with baker’s free expression of his religion (or any of the variations of this argument that were presented), it could allow employers, landlords, and business owners to create a kind of personal religious exemption to state and federal anti-discrimination laws. Whenever a professional’s conduct includes expression, whether in the form of speaking, acting, or artistic creation, that professional may be able to raise religious defenses to anti-discrimination claims under state laws.

If, however, the Justices decide in favor of the CCRC, discrimination attorneys and their clients will be able to rely on the enhanced protections built into many states’ civil rights laws. They will continue to use these laws to ensure gay and lesbian citizens are granted the same protections at work, in finding a house, and as consumers, for years to come.

At Eisenberg & Baum, LLP, we know how important it is for our employment discrimination attorneys to stay up to date with current sexual orientation discrimination case law. We make it a priority to follow changes in the law, and we can help you understand your rights, and what your remedies might be if you have faced discrimination based on who you love. Contact Eisenberg & Baum, LLP, today for a free consultation.

Police Officer’s “Gayness” Prevented Promotion, Lawsuit Says

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Police departments across the country have had problems recruiting a diverse and inclusive workforce. But they don’t do themselves any favors when they allow sexual stereotypes to affect hiring and promotions decisions. One Missouri police officer’s “gayness” prevented promotion and prompted a gender discrimination lawsuit.

In this blog, I will review Wildhaber v. St Louis County, MO, filed in Missouri state court. I will explain how federal Title VII civil rights law applies to sexual orientation and retaliation, and explain how an employment discrimination attorney can help you get the compensation you need.

Police Officer’s “Gayness” Influences Promotion Decisions

According to a lawsuit filed in Missouri state court, St. Louis County police officer Keith Wildhaber was passed over for promotion for years because of his perceived “gayness.” The complaint, filed January 10, 2017 alleges that Wildhaber, who had an exception work history, was denied multiple promotion opportunities based on his managers’ expectations around sexual stereotypes.

The following is based on the allegations in the complaint:

A 4-year army veteran, Wildhaber has worked as a police officer for the St. Louis Police Department since he graduated police academy in 1997. In 1998, he received a Medal of Valor for saving a man trapped in a burning car. He was promoted to Sergeant in 2011, and assigned to the desirable location of Affton Precinct. In 2014, Wildhaber took the promotions test for a lieutenant position. Of 26 applicants, he scored 3rd.

But despite his high rankings, Wildhaber was placed toward the bottom of the promotion list. In February 2015, rather than promoting him to fill a vacant position, the managers opened applications again. Wildhaber tested again, and again placed third. A year later, Wildhaber had been passed over for the lieutenant position again.

In the midst of this process, Wildhaber spoke with one of the St. Louis County Board of Police Commissioners, who allegedly told him the command staff had “a problem with your sexuality.” The Commissioner said:

“If you ever want to see a white shirt (i.e., get a promotion), you should tone down your gayness.”

When the police officer filed complaints about this statement, and the management’s discriminatory hiring practices, he faced retaliation. According to the lawsuit, he was transferred from a second-shift position in Affton to a midnight shift 20 miles away in Jennings.

Title VII and Sexual Orientation Discrimination

Title VII of the federal Civil Rights Act prohibits employment discrimination based on:

  • Race
  • Color
  • Religion
  • National origin
  • Sex

The law does not explicitly protect against discrimination based on sexual orientation or gender expression. However, in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the U.S. Supreme Court ruled that discrimination based on a person’s failure to conform to an employer’s sexual stereotypes was illegal under Title VII. A decade later, these protections were extended to cover sexual orientation in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998).

Under the Obama Administration, beginning in 2012, the Equal Employment Opportunity Commission began interpreting Title VII to include protection against discrimination based on sexual orientation and gender identity. However, with the recent changes in administration, any future EEOC efforts to protect gay, lesbian, bisexual, and transgender employees are highly questionable.

Retaliation and Title VII

Federal civil rights laws, including Title VII, explicitly prohibit retaliation by employers against employees who raise civil rights concerns. This includes lodging internal civil rights complaints, filing EEOC charges, acting as a witness, or pursuing the employee’s rights in court. It doesn’t matter if the case is successful. Even actions taken to prevent perceived civil rights violations are protected under the statutes.

Retaliation is a broad term, including any adverse employment action. In Wildhaber’s case, this took the form of reassignment to a distant precinct and the midnight shift. In other cases it could include firing, demotion, negative performance reviews, limited job assignments, or any other efforts by employers to discourage a person from filing their complaints.

EEOC Changes Don’t Change Title VII

The Missouri Commission on Human Rights won’t be helping Wildhaber. The organization issued a “Notice of Right to Sue” on January 10, 2017. But that doesn’t mean his case is over. In fact, it has just begun. His employment discrimination attorney has filed a complaint in state court based on Title VII and similar state civil rights laws. The private lawsuit is based on the same legal theory: that employment decisions made based on a police officer’s “gayness” are illegal gender discrimination based on sexual stereotypes.

The cases against sexual orientation discrimination survive any changes in administrative enforcement by the EEOC or a presidential administration. Private employment discrimination attorneys can use these cases to get LGBT employees protection and damages when they face discrimination at work. In Waldhaber’s case, his lawyers are requesting:

  • Back pay (wages lost because he was not promoted)
  • Front pay (wages that continue to be lost unless he is promoted)
  • Money compensation for emotional distress and humiliation
  • Promotion within the department
  • Punitive damages (designed to keep his employer from doing the same thing in the future)
  • Court costs, attorney fees, and interest.

Similar money damages and “injunctive” relief may be available in a wide variety of sexual orientation discrimination claims. Right now, courts disagree on whether Title VII applies to LGBT claims. However, in many jurisdictions, these cases can be filed as a form of gender discrimination. That will remain true, regardless of EEOC enforcement policies, unless and until the Supreme Court says otherwise.

LGBT employees face tough employment discrimination, especially in industries that rely on sexual stereotypes. If you believe you have been passed over for promotion because of your “gayness”, the employment discrimination attorneys at Eisenberg & Baum, LLP, can help. We will review your case and help you understand your chances in the EEOC and in your court. Contact us to arrange a consultation to get help today.

7th Circuit Court Upholds Sexual Orientation Discrimination Claims

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Can an employee sue her employer for sexual orientation discrimination? A recent decision by the the entire bench of the 7th Circuit said that Title VII’s prohibition against sex discrimination necessarily included sexual orientation discrimination claims.

In this blog post, I will review the Seventh Circuit en banc decision in Hively v. Ivy Tech Community College of Indiana. I will explain how the court found that Title VII should be read to prohibit sexual orientation discrimination. I will also explain how this decision pairs with another recent opinion to create a conflict that could result in consideration by the Supreme Court.

Sexual Orientation Discrimination at Ivy Tech

Kimberly Hively was an open lesbian and a part-time adjunct professor at Ivy Tech Community College’s South Bend campus. Her employers observed her kissing her then-girlfriend in the parking lot of the school. Since that time, Hively had applied for six full-time teaching positions between 2009 and 2014. But on top of being passed over all six times, in July 2014 her existing contract was not renewed. She filed a complaint with the Equal Employment Opportunity Commission, claiming that she had been the target of sexual orientation discrimination.

The EEOC issued a right-to-sue letter. So Hively sued Ivy Tech in federal district court (without a lawyer). The trial court, and later a 3-judge panel of the 7th Circuit Court of Appeals, ruled that there is no cause of action for sexual orientation discrimination based on existing case law in that court. Hively’s appellate attorneys then requested and “en banc” review, asking all the Circuit Court judges to weigh in on the issue.

Why En Banc Decisions are Different

To understand importance the en banc review, you first need an overview of the issue of “precedent”. When making legal decisions, judges at the trial court and appellate court level are required to apply existing case law. That means federal trial and appeals court judges are “bound” by U.S. Supreme Court cases and earlier decisions within their own circuit. But an en banc decision can sometimes overturn existing circuit court precedent. The 7th Circuit Court decided to hear review Hively “[i]n light of the importance of the issue, and recognizing the power of the full court to overrule earlier decisions and bring our law into conformity with the Supreme Court’s teachings”.

Sexual Orientation Discrimination As Necessarily Sex Discrimination

The 7th Circuit entertained two related arguments in favor of sexual orientation discrimination. The first asked if the plaintiff’s sex had influenced her employer’s decision. That meant asking, “holding all other things constant and changing only her sex, [would she] have been treated the same way?”

The court emphasized the importance of holding all things constant except the plaintiff’s sex. It compared Hively’s situation to a male dating a female partner and working in the same position. This was a point of contention between the majority of judges and the dissent. The dissenting judges would have compared Hively to a homosexual man in the same situation — in other words, they would have changed both partners’ sex, instead of just her own. The court found that this approach changed too much. It also obscured the issue of gender non-conformity, which is an established form of sex discrimination. The court said:

Viewed through the lens of the gender non-conformity line of cases, Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual.

It found that there is no distinction between a gender nonconformity claim and one based on sexual orientation.

Any discomfort, disapproval, or job decision based on the fact that the complainant — woman or man — dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.

Sexual Association Discrimination Compared to Interracial Marriage

The second argument in favor of Hively’s sexual orientation discrimination claim drew an analogy to the Supreme Court’s decision regarding interracial marriage in Loving v. Virginia, 388 U.S. 1 (1967). That case, and several later court of appeals opinions, held that employment decisions made because of a protected characteristic of a person’s associate is actually discrimination based on his or her own traits. While the trait in question in those cases was race, the court said the same reasoning would apply to any other form of discrimination including national origin, color, religion, or sex of the person’s associate.

Supreme Court Decisions in Favor of Same-Sex Couples

The court found support for its decision in a number of existing Supreme Court decisions in favor of homosexual individuals and couples:

  • Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), determined gender stereotyping was illegal sex discrimination.
  • Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), determined that sex discrimination can occur regardless of the sex of the harasser or the victim.
  • Romer v. Evans, 517 U.S. 620 (1996), struck down a state constitutional amendment forbidding laws that protect “homosexual, lesbian, or bisexual” persons.
  • Lawrence v. Texas, 539 U.S. 558 (2003), struck down a law criminalizing homosexual intimacy between consenting adults.
  • United States v. Windsor, 133 S.Ct. 2675 (2013), struck down the federal Defense of Marriage Act excluding same-sex spouses based on due process and equal protection principles.
  • Obergefell v. Hodges, 135 S.Ct. 2584 (2015), protecting the right of same-sex couples to marry.

The current state of employment discrimination law creates “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.” The court said “[i]t would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.'”

Two Decisions Set Up Supreme Court Conflict

The Hively decision is directly contrary to the recent 11th Circuit decision in Evans vs. Georgia Regional Hospital. There, a 3-judge panel said that a lesbian employee may be able to raise a sex discrimination claim based on her behavior under a gender stereotype theory. However, it refused to recognize sexual orientation discrimination based solely on her status as a homosexual. The two decisions create a direct conflict. Discrimination based on a person’s same-sex relationship is legal in one part of the country, but illegal in another. These kinds of conflicts are ripe for resolution by the Supreme Court. If either Evans or Hively is appealed, the Supreme Court could soon review the rights of LGBT employees nationwide.

At Eisenberg & Baum, LLP, our employment discrimination attorneys stay up to date with current sexual orientation discrimination case law. We can help you understand your rights at work, and what your remedies might be if you have faced employment discrimination based on who you love. Contact Eisenberg & Baum, LLP, today for a free consultation.

11th Circuit Court Says No to Sexual Orientation Discrimination Claim

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A recent U.S. Court of Appeals decision has cast a shadow over the sexual orientation discrimination claims of gay and lesbian employees nationwide. Find out what the case does and doesn’t say about same-sex gender stereotype discrimination in the workplace.

In this blog post I will review the U.S. Court of Appeals decision in Evans vs. Georgia Regional Hospital. I will explain the different rulings contained within the opinion, and the impact of the decision on LGBT employees across the country.

11th Circuit Court Says No to Sexual Orientation Discrimination Per Se

The 11th Circuit made waves in the news recently. Reporters latched on to a portion of its opinion in Evans vs. Georgia Regional Hospital saying the court ruled that discrimination against gay workers was not illegal. But that’s not exactly what the court said. Instead, the court held that there is no independent cause of action (basis for a lawsuit) if a person is discriminated against solely because of his or her sexual orientation.

The case arose from a complaint filed with the Equal Employment Opportunity Commission by Jameka Evans against her employer, Georgia Regional Hospital. Evans worked as a security guard at the hospital. She filed a lawsuit on her own, without an attorney, claiming that she faced discrimination at work based on her sexual orientation and gender non-conformity. She said by wearing a male uniform and a short haircut her sexual orientation became evident. That was the basis for her receiving less desirable shifts and being targeted for termination. She also alleged that a less qualified coworker was promoted over her. When she filed a human resources complaint, she was retaliated against by a supervisor who created a hostile work environment.

The Court of Appeals said it could not find a basis for Evans’s sexual orientation discrimination claim based on status. It was prohibited by doing so by a 1979 circuit court opinion which stated “[d]ischarge for homosexuality is not prohibited by Title VII.” The court interpreted this to mean that discrimination based purely on a person’s LGBT status was not illegal under the federal Civil Rights Act.

Gender Non-Conformity Discrimination Is Still Illegal

Under the Evans decision, a person may not file an employment discrimination claim based simply on the fact that his or her employer was prejudiced against homosexual employees as a class. But that doesn’t mean that gay and lesbian workers aren’t protected. The court very clearly found that a lawsuit based on gender non-conformity is allowed. It said:

We hold that the lower court erred because a gender non-conformity claim is not ‘just another way to claim discrimination based on sexual orientation,’ but instead, constitutes a separate, distinct avenue for relief under Title VII.

So while Evans may not have had a claim for bias employment decisions based on the fact that she was a lesbian, she may have been able to bring that same lawsuit based on the way that status manifested. If her behavior fell outside of traditional gender norms (including choosing to wear pants or cut her hair short), and that behavior resulted in discriminatory actions against her, then Evans could still file suit under the gender discrimination protections in Title VII.

How Evans v Georgia Regional Hospital Affects LGBT Workers Nationwide

A Circuit Court opinion like Evans can affect employees well outside of its region. Only lower courts in Alabama, Georgia, and Florida are required follow to the 11th Circuit Court’s ruling. But courts nationwide are allowed to use this decision as a basis for their own legal decisions. Judges across the country may, if they choose, rely on the reasoning in Evans to reach decisions in other LGBT discrimination cases.

At the same time, the 7th Circuit Court of Appeals has just decided a sexual orientation discrimination case in favor of the employee. The 7th Circuit ruled that discrimination based on a person’s sexual orientation is gender discrimination per se (the claim Evans rejected). This could pave the way to a United States Supreme Court decision on the matter which could clearly establish or reject a gay or lesbian employee’s rights under Title VII.

How an Employment Discrimination Attorney Helps

Jameka Evans did not have an attorney; she filed her lawsuit herself. And that likely had a strong affect on her case. The Court of Appeals made clear that she may have had a stronger claim if her complaint had included more details about the employer’s discriminatory practices. In fact, the court directed that she be allowed to amend her complaint as the case progressed, to more clearly lay out her claims for behavior-based gender discrimination.

At Eisenberg & Baum, LLP, we don’t want anyone’s discrimination claim to fail because it was poorly written or presented. We understand that our clients may not always know how to present themselves before the EEOC magistrates or in court. That’s why we take the time to help our clients understand the process and learn the strengths and weaknesses of their cases. If you believe you have been subject to sexual orientation discrimination based on sexual stereotypes, contact Eisenberg & Baum today. Our employment discrimination attorneys will help you understand the law and present your best case.

How Professional Records Help Your Discrimination Lawsuit

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The first step in a discrimination lawsuit starts before you ever leave work. By gathering your professional records ahead of time, you can fight back against victim blaming. Find out what you should know, and what you can do before even meeting with a lawyer to make your case stronger.

In How to Create a Sexual Harassment Log, I explained that your log should include performance reviews, job offers, raises, and other professional records. In this blog I will explain how an employment attorney can use those records to prove your workplace discrimination lawsuit. I will explain what records you should keep and why, and explain how they can protect you from a common employer defense strategy.

Why Professional Records Are Important

Whether you are facing workplace bias based on your race, gender, religion, or sexual orientation, your discrimination lawsuit comes down to one of two legal theories:

  • Hostile work environment or
  • Adverse employment decisions.

An adverse employment decision can include any decision by a manager, supervisor, or boss that negatively affects your work, as long as it is based on one of the protected traits. While a hostile work environment is usually demonstrated by logging who did what on the job, proving adverse employment decisions can take a bit more paperwork.

When most people think of employment discrimination they imagine a person being fired because of their gender, or passed over because of their race. But there are more subtle decisions your boss makes every day that could be considered grounds for a discrimination lawsuit. Decisions like job delegation, shift assignments, and raises can sometimes go unnoticed without careful attention to your professional records.

How Lawyers Use Professional Records

When you file a complaint with the Equal Employment Opportunity Commission (EEOC) or in civil court, you will have to show that your employer made work-related decisions based on illegal bias. Your discrimination attorney can use your professional records to show when and how these decisions happened. By gathering documents from before and after the discrimination began, your attorney can show what has changed along the way.

One popular defense employers use in discrimination cases is to say that the decision was made because of employee performance. In other words, it wasn’t your race, sex, or ethnicity that caused you to be fired; it was the work you did in the past. Professional records are a strong tool against this defensive tactic. By showing what other supervisors, managers, or even previous employers thought of your performance, your lawyer can prove that it wasn’t your work that motivated your employer. It was bias.

What Professional Records Should You Keep?

Which records are most important depends on what your boss is doing.

  • Offer letters and contracts: Your lawyers can use offer letters and employment contracts to show what your work was supposed to be.
  • Performance reviews: If your employer uses periodic performance reviews to determine raises, promotions, or bonuses, these reviews can demonstrate your value as an employee. As supervisors change, and biases become evident, you will be able to see shifts in the way you are evaluated.
  • Proof of raises and bonuses: Your attorney can use anything from a check stub to an award letter to show when you have received raises or bonuses in the past. This can also provide clues to your lawyers about what documents exist for other employees, so they can show how you were treated differently than your coworkers.
  • Work schedules and job assignments: By keeping a log of your weekly work schedule or job assignment over time, you and your lawyer can see where a supervisor is treating you poorly. If you are consistently brought in for split shifts or odd hours that you didn’t expect, it could be a sign of discrimination.

Why Not Let the Lawyer Do the Work?

As you prepare to file a discrimination lawsuit, it is a good idea to start gathering the paperwork, even before your lawyers draft a complaint. Unfortunately, sometimes when an employee complains about discrimination he or she may be quickly fired or denied access to records related to employment. This is illegal retaliation, but it can make it harder to prove your case. That’s why it is a good idea to collect your documents early, rather than letting your lawyer do the work as part of your discrimination litigation.

An experienced employment discrimination attorney can make your professional records work for you, helping to prove your discrimination lawsuit. At Eisenberg & Baum, LLP, our staff can help you identify what to keep, and make a strategy to get the relief you want, in or out of court. Contact us to schedule a free consultation.

Will Donald Trump Reverse Cases Prohibiting Sexual Orientation Discrimination?

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The election is over and Donald Trump is the next President of the United States. On the campaign trail Donald Trump made a lot of promises. But will any of them affect cases prohibiting sexual orientation discrimination?

In this blog post I will discuss the possible effect of Donald Trump’s presidency on federal court cases prohibiting sexual orientation discrimination. I will explain the course a case like this takes through the court system and where Trump’s influence may be felt along the way. It is important to note that no one knows what any President will do before they do it. This post is only intended to explain the process.

EEOC Takes Sexual Orientation Discrimination to Court

Since December 2012, the Equal Employment Opportunity Commission has taken the position that existing civil rights laws, particularly Title VII, prohibit sexual orientation discrimination as a part of their ban on gender-based discrimination and harassment. Under its interpretation, discrimination based on sexual orientation or gender identity are essentially punishing a person for not conforming to existing sexual stereotypes.

Based on that interpretation, the EEOC has sued a number of employers for sexual orientation or gender identity discrimination. One such case, U.S. EEOC v. Scott Medical Health Center (Case 2:16-cv-00225-CB), is currently pending in the U.S. District Court for the Western District of Pennsylvania. Earlier in 2016, the judge in that case denied the employer’s motion to dismiss, ruling that an employee could file a claim for sexual orientation discrimination under Title VII, essentially agreeing with the EEOC’s interpretation of the law. Let’s use this case as an example to provide context to a discussion of Donald Trump’s power in this area.

What Trump’s Judicial Appointments Mean for LGBT Employees

The President of the United States cannot directly reverse court decisions. As the head of the Executive Branch, he has no direct influence over the courts. However, President Donald Trump will have the authority to nominate candidates to fill vacancies among federal court judges. This includes replacing the late Honorable Anton Scalia as a U.S. Supreme Court Justice. As of December 8, 2016, there were also 13 vacancies at the U.S. Court of Appeals level and 83 District Court vacancies. Trump will have the authority to fill all of those seats, with Senate approval.

For cases currently pending before the court, like EEOC v. Scott Medical, these appointments won’t have any immediate effect at the trial court level. However, as new sexual orientation discrimination complaints are filed they may be assigned to the more conservative judges appointed by Donald Trump. While there is no way to know how any judge will rule on a case ahead of time, more conservative judges may be less likely to agree with the EEOC’s interpretation of Title VII, and could rule in favor of employers who discriminate against their LGBT employees.

The Supreme Court and Court of Appeals

Trump’s judicial appointments at the Court of Appeals and Supreme Court level could have a broader effect on sexual orientation discrimination cases going forward. While the U.S. Supreme Court has applied the sexual stereotype standard to gender discrimination cases in the past, it has not yet heard a sexual orientation discrimination case. Appointments of judges and Supreme Court Justices who are less friendly to LGBT rights could cause the higher courts to rule against protections for LGBT employees. If they do, it would set precedent for future employment discrimination cases across the country.

However, none of this will happen tomorrow. It can take time, even years, for a case like EEOC v. Scott Medical to make its way through the court system to the Supreme Court. Right now, EEOC v. Scott Medical is still in the pretrial stages. It could take several more months for there to be a final verdict at the trial court level. Assuming the court finds that sexual orientation discrimination did occur, the employer would then have to file an appeal at the Court of Appeals level. After months of briefing schedules and oral argument, the Court of Appeals would then issue a ruling. Whichever party loses on appeal may then request permission to appeal to the Supreme Court. If that request is granted, it will be another several months before the Supreme Court renders a decision. That means any significant change in employment discrimination law will not take effect for some time to come.

EEOC Appointments Could Affect Appeals

The next blog will discuss how changes within the EEOC could affect employment discrimination cases under a Trump administration. However, there is one shift that could apply to cases like EEOC v. Scott Medical much sooner than any judicial appointment. The EEOC is part of the Executive Branch. That means the President gets to appoint its leadership. If the incoming EEOC Commissioners or General Counsel do not prioritize LGBT rights, they may choose not to appeal decisions against gay employees or file new federal lawsuits on their behalf.

If that happens, it will be up to private firms like Eisenberg & Baum, LLP, to pick up the slack. Our employment discrimination attorneys understand the reasoning behind the EEOC’s policy and know how to take these issues to court. If you are facing discrimination at work because of your sexual orientation or gender identity or expression, contact Eisenberg & Baum today to schedule a free initial consultation. We’ll explain your options and help you fight back against discrimination at work.

Historic Court Ruling: Sexual Orientation Discrimination is Unlawful Sex Discrimination

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If you are a member of the LGBT community, you may feel afraid to come out at work for fear of discrimination because you are gay or lesbian. A recent federal court ruling has made sure you are safe, ruling that sexual orientation discrimination counts as unlawful sex discrimination.

In this blog, I will discuss the recent federal district court ruling in EEOC v. Scott Medical Health Center, P.C., (W.D. Pa., Civ. No. 2:16-cv-00225-CB), and its effect on LGBT equal employment rights. I will explain how federal sex discrimination laws are now being interpreted to protect against sexual orientation discrimination by the EEOC and the court.

EEOC Says Sexual Orientation Discrimination is Unlawful

In December 2012, the Equal Employment Opportunity Commission (EEOC) adopted a new Strategic Enforcement Plan (SEP). Among other policy changes, the SEP now includes “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions.” This policy changed the way the EEOC responded to gay and lesbian civil rights complaints, and opened the door to sexual orientation discrimination protections nationwide.

Sexual orientation and gender identity are not listed as protected classes under Title VII or the other civil rights statutes enforced by the EEOC. Because of this, until 2012, gay, lesbian, bisexual, and transgender employees had nowhere to turn to fight back against hurtful discrimination and harassment in the workplace. Without requiring Congress to amend the statute, the EEOC’s 2012 SEP reinterpreted the law, extending sex discrimination protections to any employee who doesn’t fit traditional sex stereotypes.

The EEOC explains why Title VII’s sex discrimination protections apply in sexual orientation discrimination cases like this:

  1. “[S]exual orientation discrimination necessarily involves treating workers less favorably because of their sex because sexual orientation as a concept cannot be understood without reference to sex;
  2. [S]exual orientation discrimination is rooted in non-compliance with sex stereotypes and gender norms, and employment decisions based in such stereotypes and norms have long been found to be prohibited sex discrimination under Title VII; and
  3. [S]exual orientation discrimination punishes workers because of their close personal association with members of a particular sex, such as marital and other personal relationships.”

U.S. EEOC v. Scott Medical Health Center

Based on its SEP, on March 1, 2016, the EEOC filed its first sex discrimination lawsuit based on sexual orientation. The case, U.S. EEOC v. Scott Medical Health Center, was based on the treatment of a gay male employee at a pain management and weight loss facility. In its lawsuit, the EEOC claimed that Scott Medical Health Center, P.C., discriminated against Dale Baxley when it allowed him to be harassed because of his sexual orientation. Baxley’s immediate supervisor was aware that he was being subjected to highly offensive anti-gay epithets and other vulgar statements based on sex stereotypes. The EEOC said that this harassment was based on the fact that Baxley did not conform to his employer’s gender-based expectations, preferences, or stereotypes. When the facility failed to respond to his complaints for two to three weeks, Baxley resigned, resulting in a constructive discharge and the basis for a sexual orientation discrimination lawsuit.

The employer filed a motion to dismiss, saying there was no unlawful discrimination because sexual orientation is not protected under Title VII. But District Judge Cathy Bissoon of the Western District of Pennsylvania in Pttsburgh disagreed. On November 4, 2016, she issued a ruling that said sexual orientation discrimination was a type of discrimination “because of sex,” which is illegal under Title VII. The law prohibits adverse treatment of workers based on “sex stereotypes.” The court said:

There is no more obvious form of sex stereotyping than making a determination that person should conform to heterosexuality. . . . That someone can be subjected to a barrage of insults, humiliation, hostility and/or changes to the terms and conditions of their employment, based upon nothing more than the aggressor’s view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate.

The court’s decision struck down the employer’s motion to dismiss. Now the case will proceed to trial or settlement based on the harassment Baxley suffered and the reasonable steps Scott Medical Health Center could have taken, but didn’t.

This marks the first time a federal court has found that Title VII extends to sexual orientation discrimination. The ruling paves the way for future EEOC complaints and lawsuits to protect the rights of LGBT workers across the country, even in jurisdictions that don’t have inclusive civil rights statutes at the state level. This is a huge step forward in employment discrimination prevention. By extending sex discrimination to include sexual orientation, Judge Bissoon has provided a foothold for future litigation shielding gay and lesbian employees from cruel and often violent workplace harassment and discrimination.

The employment discrimination attorneys at Eisenberg & Baum, LLP, applaud Judge Bissoon for taking this first step in LGBT protections. We are available to anyone, gay or straight, who feels they have been harassed because they didn’t conform to an employer’s assumptions about sexual stereotypes. If you are facing sexual orientation discrimination, contact us today to schedule a free initial consultation. We’ll help you find a way out of your hostile work environment.

Is There Sexual Orientation Discrimination Protection for LGBT Employees?

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If you are a gay or lesbian employee, you may not feel comfortable coming out at work. You may be afraid that your employer will discriminate against you based on your sexual orientation. People across the country have been fired because of who they love. That may leave you wondering if there is any protection against sexual orientation discrimination for LGBT employees.

In this blog post, I will discuss the recent change in the Equal Employment Opportunity Commission’s (EEOC) policy regarding sexual orientation and what it means for members of the LGBT community. I will explain how a few federal cases could result in stronger sexual orientation discrimination protection for gay and lesbian employees nationwide.

Title VII and Sexual Orientation Discrimination

Title VII of the United States Civil Rights Act does not explicitly include sexual orientation as a protected trait like race or sex. Because of that fact, for years, courts and the EEOC held that your employer could fire you because you were gay, lesbian, or bisexual. In fact, many state civil rights statutes still work that way.

However, in recent years, the EEOC has changed its position. The law itself has not changed, but the EEOC has begun to interpret Title VII’s prohibition against sex discrimination to include protections for employees discriminated against or harassed based on their sexual orientation.

Sex Stereotyping and Discrimination

The earliest protections against sex orientation discrimination date back to a U.S. Supreme Court case, Price Waterhouse v. Hopkins, in 1989. The case was based on sex stereotypes – that is, assumptions on how a person of a certain sex should dress or behave. The Court found that when sex stereotyping caused an employer to treat people of different genders differently, sex discrimination had occurred.

While that case did not explicitly speak out against same-sex harassment, a decade later, in Oncale v. Sundowner Offshore Services, the Supreme Court ruled that because Title VII prohibits discrimination based on sex, that must extend to sex-based discrimination of any kind, including same-sex behaviors. Similarly, a lower court has stated that negative comments about a lesbian’s sex life were brought about by a gender stereotype that assumed men or women should only be attracted to persons of the opposite gender.

Sexual Orientation Discrimination Protections

More recently, federal courts have begun to uphold employees right to be protected from discrimination based on sexual orientation. In 2014 a federal court struck down a state law prohibiting same-sex marriage law, calling it an unlawful discrimination based on sexual orientation. Some courts have explicitly said that sexual orientation discrimination is sex discrimination. Other courts have followed existing case law saying there is no Title VII sex discrimination claim for sexual orientation harassment, but have asked that the issue be addressed either at the Supreme Court or by the legislature.

The EEOC and Sexual Orientation Discrimination Lawsuits

In December 2012, the EEOC updated its Strategic Enforcement Plan (SEP) to include coverage of gay, lesbian, bisexual, and transgender individuals under Title VII’s sex discrimination provisions. The EEOC is now actively pursuing lawsuits based on employers’ illegal sexual orientation discrimination. The agency filed two separate federal lawsuits on March 1, 2016, both based on Title VII’s protection against sex discrimination:

In EEOC v. Scott Medical Health Center, PC, the claim was that the complainant’s superior knew he was gay and regularly used highly offensive anti-gay epithets, and vulgar language based on sex stereotypes. This amounted, in the EEOC’s estimation, to sexual harassment contrary to Title VII.

In EEOC v. Pallet Companies d/b/a/ IFCO Systems NA, Inc, the EEOC filed suit because an employer terminated an employee for complaining about harassment based on her sexual orientation. Specifically, the EEOC said the employer discriminated against her, including making sexually suggestive gestures, based on the fact that the employee did not conform to stereotypical female gender norms.

Sexual Orientation Discrimination Remedies Out of Court

While the question of whether a plaintiff can pursue a Title VII lawsuit is still up for debate in the federal courts, it is clear that wrongfully terminated employees and their attorneys can get help from the EEOC’s regulatory process. In 2015, the EEOC received 1,412 claims of sexual orientation and gender identity discrimination – up over 25% from previous years. Through the claims process and voluntary agreements with employers, the agency awarded over $3 million to LGBT workers that year alone.

How Can I Get Help Fighting Sexual Orientation Discrimination at Work?

When your employer uses who you love as a weapon against you it can make every work day a nightmare. You shouldn’t have to hide your spouse or partner just to keep your job. If you believe you have been the victim of sexual orientation discrimination or harassment, the employment discrimination attorneys at Eisenberg & Baum can help. We have years of experience dealing with sex discrimination claims, and we are committed to making our office a safe space for you and your loved ones. If you feel like your employer is using your sexual orientation against you, contact us. We’ll meet with you and help create a strategy that protects you and your rights.