Uncertainty Surrounding Gender Identity and Sexual Orientation Discrimination and Steps Employers Should Take

All_gender_restroom_sign_San_Diego_airportIn the current legal landscape, the scope of laws prohibiting sex discrimination remains uncertain, especially because the Supreme Court has yet to take up the issue as it relates to LGBT rights.  Most recently, the high court’s decision not to answer the question whether discrimination “on the basis of sex” prohibits discrimination based on gender identity and/or sexual orientation in a case brought by a transgender student raises many questions for employers about compliance with federal anti-discrimination laws.

However, even though this question has not been definitively resolved on the federal level and the new administration recently changed its stance on transgender issues, the Equal Employment Opportunity Commission (“EEOC”) has made discrimination on the basis of gender identity and sexual orientation an enforcement priority in its 2017 Strategic Enforcement Plan.  Moreover, employers need to be mindful that several state and local laws prohibit both sexual orientation and gender identity discrimination and take steps to ensure their employment law policies and training comply with existing federal, state and local law.

EEOC’s Position on Gender Identity or Sexual Orientation

The EEOC interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation.  The EEOC states that these protections apply “regardless of any contrary state or local laws” and has taken the position that existing sex discrimination provisions in Title VII protect lesbian, gay, bisexual, and transgender (LGBT) applicants and employees against employment bias.  Throughout the past several years, the EEOC has recovered approximately $6.4 million in monetary relief for individuals, as well as numerous employer policy changes, in voluntary resolutions of LGBT discrimination charges under Title VII.

There have been several significant EEOC decisions that have advanced protections for persons based on gender identity.  Notably, in Macy v. Dep’t of Justice decided in 2012, the Commission held that intentional discrimination against a transgender individual because of that person’s gender identity is, by definition, discrimination based on sex and therefore violates Title VII.  Additionally, in Baldwin v. Dep’t of Transportation decided in July 2015, the EEOC held that a claim of discrimination on the basis of sexual orientation states a claim of discrimination on the basis of sex under Title VII.   The EEOC has also used this precedent to address more specific issues related to gender identity and sexual orientation.

Applying Macy, the EEOC has also held that (1) an employer’s restrictions on a transgender woman’s ability to use a common female restroom facility constitutes disparate treatment; (2) intentional misuse of a transgender employee’s new name and pronoun may constitute sex-based discrimination and/or harassment; and (3) that an employer’s failure to revise its records pursuant to changes in gender identity stated a valid Title VII sex discrimination claim.  Thus, although there is not a definitive answer among the federal courts, the EEOC under President Obama demonstrated a willingness to pursue claims of sexual orientation and gender identity discrimination under Title VII, and the EEOC has stated it will continue to follow its 2017 Strategic Enforcement Plan in the new Administration.

Obama Guidance and Trump Repeal

The EEOC position was further bolstered in May 2016 when the Obama administration issued new federal guidance from the Department of Education and the Department of Justice (“May 13th guidance”) requiring public schools to grant transgender students access to restrooms and locker rooms that match their identity.  The guidance specifically noted:

Title IX of the Education Amendments of 1972 (Title IX) and its implementing regulations prohibit sex discrimination in educational programs and activities operated by recipients of Federal financial assistance. This prohibition encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.

Indeed, this guidance defined “sex discrimination” in Title IX, the same language used in Title VII, to include discrimination based on gender identity.  However, on February 23, 2017, the guidance was rescinded under the new administration in a joint action by the Department of Justice and Department of Education.  The new guidance states that the prior effort from the Obama administration did not contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.  Additionally, the 2017 guidance noted that, in this context, there must be due regard for the primary role of the states and local school districts in establishing educational policy.

However, this new guidance from the Trump administration was not the first indication that the federal government would change its position on transgender issues.  On February 10, 2017, the Trump administration had signaled that it was changing course on the previous administration’s efforts to expand transgender rights when it submitted a legal brief withdrawing the government’s objections to the injunction that had blocked implementation of the May 13th guidance requiring that transgender students be allowed to use restrooms that match their gender identity.

Specifically, in State of Texas et al. v. United States, thirteen states and agencies (the “Plaintiffs”) filed suit against the Departments of Education, Justice, Labor, the EEOC, and various agency officials (the “Defendants”) challenging the Defendants’ position that Title VII and Title IX require that all persons “must be afforded the opportunity to have access to restrooms, locker rooms, showers, and other intimate facilities which match their gender identity rather than their biological sex.”  The Obama administration had argued that a federal district judge in Wichita Falls, Texas, had gone too far by issuing a nationwide injunction blocking the May 13th guidance.  The Obama administration further argued that the broad injunction interfered with the federal government’s interactions with the states that did not sue – with 12 states and the District of Columbia filing friend-of-the-court briefs backing the transgender guidance as well.  Now, the appeal is at a stand-still and, pursuant to a joint motion filed by all of the parties involved, the parties are “currently considering how best to proceed in this appeal.”

The Grimm Case

At the forefront of whether discrimination on the basis of sex includes gender identity is a case arising out Virginia wherein a transgender student, Gavin Grimm, was not allowed to use the bathroom reflecting the gender with which he identifies.  The Supreme Court was scheduled to hear oral arguments on Gloucester County Schoolboard v. G.G. on March 28, 2017.  Similar to the challenge in State of Texas et al. on appeal in the 5th Circuit, at issue in the case is whether Title IX’s provision banning discrimination “on the basis of sex” in schools that receive federal money also bans discrimination based on gender identity.

Grimm’s case before the Supreme Court was sent back to the Fourth Circuit, however, after the Court reversed its decision to hear the case and removed it from the high court’s calendar this term.  Following the Trump administration’s repeal of the Title IX guidance for transgender students, the Supreme Court ruled there were not sufficient grounds for the case to be argued.

The Fourth Circuit Court of Appeals, which previously ruled in Grimm’s favor, had relied on the Obama administration’s 2016 guidance advising schools to let transgender students use bathrooms and locker room facilities consistent with their gender identity.  But without that guidance in place, the Supreme Court found that the lower court’s ruling was no longer valid, vacating the prior decision in Grimm’s favor.  On March 6, 2017, the Court announced that the case would effectively go back to the Fourth Circuit for further argument, leaving it in the Circuit’s hands to decide whether Title IX protects against gender identity discrimination.  If the court is to rule in favor of Grimm once again, it must reject a narrow, literal reading of the statute, and rule that Title IX is meant to be interpreted more broadly than written.  Furthermore, more pertinent for employers, the appellate court’s holding could influence other federal courts in determining whether Title VII of the Civil Rights Act of 1964 prohibits discrimination based on gender identity.

To date, a federal appeals court has yet to identify sexual orientation as a protected class but the issue is currently being litigated in several courts across the country.  A panel of the 11th U.S. Circuit Court of Appeals recently decided on March 10, 2017 in Evans v. Georgia Regional Hospital, that Title VII does not cover sexual orientation discrimination. Both the 2nd Circuit and 7th Circuit currently have appeals involving sexual orientation claims. Therefore, this issue is likely to resurface in the Supreme Court in the near future but employers are left waiting while it works its way back to the high court.

What Does this Mean for Employers?

Questions regarding the scope of “sex discrimination,” specifically as it relates to employees’ sexual orientation and gender identity continue to evolve but these queries are not new.  While the lack of a final ruling on the definition of sex under Title VII may be frustrating for some employers in developing consistent policies, many employers may find the answer in state and local laws.

Employers should be aware of the myriad of federal cases which relate to transgender rights under Title VII, such as Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004), Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008), and Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011), as well as lower court cases that have ruled that the prohibition against sex discrimination under Title VII extends to sexual orientation, such as EEOC v. Scott Medical Health Ctr., No. 16-225 (W.D. Pa. Nov. 4, 2016).   Additionally, employers should know the anti-discrimination laws in their state or localities.  Currently there are over twenty states that protect against sexual orientation and gender identity discrimination in employment.  For example, the DC Human Rights Act specifically includes both sexual orientation and gender identity and expression as protected classes.  There are also some states, such as Wisconsin, that have laws that protect against employment discrimination based on sexual orientation, but not gender identity.  Other states, such as New Hampshire, have recently introduced bills to expand their anti-discrimination laws to include transgender people.  Finally, there are roughly 200 cities and counties across the United States that have passed laws prohibiting sexual orientation and gender identity discrimination in the workplace.

The cases currently percolating through the lower federal courts will not impact the more expansive state and local anti-discrimination laws that are in place.  Furthermore, the notoriety of the Grimm case and the change in position of the new administration will likely push these issues to the forefront.  Therefore, now is a good time for employers to carefully check their state and local statutes and regulations to ensure that they are complying with all anti-discrimination laws.  Employers should also make certain their employee handbooks and workplace policies reflect the requirements of these laws.

Even if an employer operates in a state or locality that does not have an anti-discrimination law covering sexual orientation and/or gender identity, it is still wise to implement anti-discrimination policies that encompass sexual orientation and gender identity.  Employers should stay ahead of the curve and forego potential liability by implementing policies that make certain LGBT employees are treated fairly and feel included in the workplace.

At a minimum, employers should implement equal employment opportunity statements and anti-harassment policies declaring that it does not discriminate on the basis of sexual orientation or gender identity and will not tolerate such harassment in the workplace.  There are also a number of programs that employers can implement to make their workplace more inclusive, such as establishing a diversity committee and providing training for supervisors and management on how to foster a diverse environment.  Ultimately, establishing a workplace that is inclusive of everyone will help limit liability and prevent costly litigation, as well as foster a more productive workforce.

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