Category: Civil Rights

Update Company Policies for Transgendered Employees

Although no federal statute explicitly prohibits employment discrimination based on gender identity, the Equal Employment Opportunity Commission has actively sought out opportunities to ensure coverage for transgender individuals under Title VII’s sex discrimination provisions under its Strategic Plan for Fiscal Years 2012-2016. After the EEOC issued its groundbreaking administrative ruling in Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives, EEOC Appeal No. 012012081 (April 23, 2012), where it held that transgendered employees may state a claim for sex discrimination under Title VII, some courts have trended to support Title VII coverage for transgendered employees.

To address potential challenges and lawsuits that may arise, employers should consider updating codes of conduct as well as non-discrimination and harassment policies. While policies may differ based on an employer’s business, there are some key features to consider:

  • Include “gender identity” or “gender expression” in non-discrimination and anti-harassment policies. Gender identity refers to the gender a person identifies with internally whereas gender expression refers to how an employee expresses their gender—i.e. how an employee dresses. The way an employee expresses their gender may not line up with how they identify their gender.

  • Establish gender transition guidelines and plans. A document should be established and available to all members of human resources and/or managers to eliminate mismanaging an employee who is transitioning. The guidelines may identify a specific contact for employees, the general procedure for updating personnel records, as well as restroom and/or locker room use.

  • Announcements. After management is informed, and with the employee’s permission, management should disseminate the employee’s new name to coworkers and everyone should begin using the correct name and pronoun of the employee. Misuse of a name or pronouns may create an unwelcome environment which could lead to a lawsuit.

  • Training and compliance. Employers should review harassment and diversity training programs and modules to ensure coverage of LGBTQ issues. All employees should be trained regarding appropriate workplace behavior and consequences for failing to comply with an organization’s rules.

In addition to the potential liability under federal law, some state laws provide a right of action for transgendered employees who are discriminated against at work; therefore, employers should review the laws of the jurisdictions in which they operate to ensure compliance.

ARTICLE BY Latrice Nicole Lee of Polsinelli PC

© Polsinelli PC, Polsinelli LLP in California

Key Implications of Fourth Circuit’s Denial of En Banc Review of Pro-Transgender Ruling

On May 31, 2016, the Fourth Circuit Court of Appeals denied en banc review of an April decision permitting transgender students to use sex-segregated facilities that are consistent with their gender identity.  The Fourth Circuit encompasses North Carolina; thus, the case G.G. v. Gloucester County Public School Board (“Gloucester County”), although it arose in Virginia, creates a conflict between federal law and North Carolina’s House Bill 2 (“HB2”), which requires transgender individuals to use public bathrooms that match the gender listed on their birth certificates.  Although Gloucester County applies on its face to students and public schools, the decision impacts retailers who provide bathroom facilities to employees and customers and who must navigate conflicting laws regarding transgender protections.  Of additional importance, plaintiffs in sex discrimination lawsuits will likely use the decision as support for the view that a person’s “sex” includes “gender identity.”North Carolina Transgender students

In Gloucester County, a sixteen-year-old transgender high school student who was born a biological female filed suit to use the boys’ restroom at school.  G.G. and his mother contended that the school’s policy of providing separate restrooms and locker rooms based upon a student’s biological sex constituted sex discrimination under Title IX—the federal law that prohibits sex-based discrimination in federally funded educational programs and activities.  On April 19, G.G. prevailed in a two-to-one decision of a three member panel of the Fourth Circuit, which deferred to the U.S. Department of Education’s interpretation that the reference to “sex” in Title IX includes “gender identity.”

Following the panel’s ruling, the school board asked the Fourth Circuit to rehear the case with the full panel of 15 active judges.  On May 31, the en banc panel denied the school board’s request.  Circuit Judge Paul V. Niemeyer, widely considered the most conservative member of the Fourth Circuit, filed the lone dissent, stating the issue “deserves an open road to the Supreme Court to seek the Court’s controlling construction of Title IX for national application.”

Regardless whether the case proceeds to the Supreme Court, the decision signifies the first time a federal appeals court has found that federal law protects the rights of transgender persons to use sex-segregated facilities that are consistent with their gender identity.  Although decided under Title IX with regard to student rights, the decision may have ramifications in the area of employment law, inasmuch as Title VII, like Title IX, prohibits discrimination based on “sex.”  Retailers and other employers should be alert to the issue and may expect that future litigants will seek to expand the Gloucester County ruling to Title VII and other sex discrimination claims.

Given the political and legal climate surrounding HB2 and related laws that affect the rights of transgender persons, we recommend that retailers proactively accommodate the needs of transgender workers rather than reactively respond to potential claims of discrimination.  Retailers, particularly those operating in states with anti-discrimination laws that cover sexual orientation and gender identity, should implement a policy designed to foster workplace inclusion.  In particular, retailers are encouraged to provide transgender employees access to bathrooms that correspond to their gender identity and, where possible, provide employees with additional options, including single-occupancy gender-neutral (unisex) facilities and use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.  Furthermore, retailers in the clothing industry with dressing/fitting rooms should accommodate their employees and patrons alike by permitting them to use the dressing/fitting room that corresponds to their gender identity.  These recommendations apply equally to those retailers in North Carolina because, although HB2 remains in effect in that state, the law applies only to places of public accommodation, and, in any event, the Fourth Circuit’s recent decision signals that the controversial law may not withstand judicial scrutiny.  In general, retailers should beware that engaging in discriminatory practices may have negative business as well as legal ramifications.

ARTICLE BY Nathaniel M. Glasser & Jonathan L. Shapiro of Epstein Becker & Green, P.C.

©2016 Epstein Becker & Green, P.C. All rights reserved.

Termination For Conduct Caused By Side Effects of Prescription Medication Was Not Disability Discrimination

Chipotle Mexican Grill, Disability Discrimination

A federal court in Florida has upheld an employee’s termination due to her “inebriated” conduct that was caused by her use of prescription medications, holding that her discharge did not constitute disability discrimination. Caporicci v. Chipotle Mexican Grill, Inc., Case No. 8-14-cv-2131-T-36EAJ (M.D. Fla. May 27, 2016).

Lisa Caporicci worked for Chipotle as a crew member and had a long history of depression and bi-polar disorder. In April 2013 she informed her manager that she took medication for bi-polar disorder but did not mention any side effects or behavioral issues that might arise from taking the medication.

In May 2013, Caporicci began taking new medication because she was experiencing panic attacks. At that time, she requested a few days off and her request was granted.  She did not work for five days and returned on June 4, 2013.  Four days later, she reported for work in what appeared to be an inebriated state.  She was “very slow, messed up orders and was incoherent.”  Caporicci’s supervisor took her off the serving line and sent her home.  She was fired later that day, for violating Chipotle’s Drug and Alcohol Policy, which prohibits employees from reporting for work or being at work under the influence of alcohol, drugs or controlled substances, or with any detectable amount of alcohol, drugs or controlled substances in his or her system.  The policy further provides that if an employee takes prescription medication that may adversely affect the ability to perform the job, he/she must notify his/her manager prior to starting work.

Caporicci asserted disability discrimination claims under federal and state law, as well as FMLA interference and retaliation claims. Her FMLA claims were dismissed because she had been employed less than 12 months.  As to her disability discrimination claims, Caporicci argued that firing her for medication side effects was tantamount to firing her for her disability.

The Court noted that courts are split on the question of whether a termination based on conduct related to, or caused by, a disability constitutes unlawful discrimination. The majority position, which includes courts in the Eleventh Circuit, holds that an employer may discipline or terminate an employee for workplace misconduct even when the misconduct is a result of the disability.  Additionally, the U.S. Supreme Court discounted the minority position in Raytheon Company v. Hernandez, 540 U.S. 44, 55 n.6 (2003), stating:  “To the extent that [the Ninth Circuit] suggested that, because respondent’s workplace misconduct is related to his disability, petitioner’s refusal to rehire respondent on account of that workplace misconduct violated the ADA, we point out that we have rejected a similar argument in the context of the Age Discrimination in Employment Act.”

For these reasons, the Court followed the majority position and held that Caporicci’s termination was not discrimination based on her disability, but rather, it was the result of her employer’s application of a neutral policy which prohibited employees from reporting to work under the influence of drugs or alcohol.

Article By Kathryn J. Russo of Jackson Lewis P.C.

Jackson Lewis P.C. © 2016

Colorado Anti-Discrimination Act: New Pregnancy Provision Taking Effect in August

Colorado Anti-discriminationOn August 10, 2016, a new pregnancy provision of the Colorado Anti-Discrimination Act (“CADA”) will take effect. While the CADA had previously been interpreted as prohibiting pregnancy discrimination and requiring accommodations for pregnancy, the new provision strengthens and clarifies those protections. Indeed, the amendment will require more of employers and will make it easier for plaintiffs to prevail than federal anti-discrimination law. This greater pregnancy protection, combined with the fact that the CADA was amended in 2013 to allow successful plaintiffs to collect compensatory and punitive damages (remedies previously unavailable under the CADA), make it more likely that employers will face lawsuits under the CADA. Accordingly, employers need to be especially careful to comply with the new amendment.

Accommodation

The bill requires an employer to provide reasonable accommodations to an applicant or employee for health conditions related to pregnancy or the physical recovery from childbirth under the following conditions: (1) an accommodation is necessary to perform the essential functions of the job, (2) the employee has requested an accommodation, and (3) the accommodation would not impose an undue hardship on the employer. As in the disability context, once an employee requests an accommodation, the employee and employer are required to engage in an interactive process. Importantly, an employer may also require a note from a licensed healthcare provider before providing an accommodation.

While accommodations are to be tailored to the employee, the bill does give examples of reasonable accommodations, including, more frequent or longer break periods, more frequent restroom and refreshment breaks, limitations on lifting, light duty, and modified work schedule. An employer is not required to create a new position or hire additional employees to provide a requested pregnancy accommodation. However, if an employer provides or is required to provide a particular accommodation to another group of employees, the bill creates a rebuttable presumption that the same accommodations for a pregnant employee would not impose an undue hardship on the employer.

Employers should also note that to preserve a pregnant employee’s ability to work, the bill prohibits an employer from requiring an employee to accept an accommodation that has not been requested or is not necessary. Similarly, the bill prohibits an employer from requiring an employee to take leave if the employer can provide another reasonable accommodation.

Adverse Action

The bill also prohibits taking adverse action against an employee who requests or uses a pregnancy accommodation. Significantly, the bill prohibits more employment practices than other sections of the CADA. Other sections of the CADA specifically make it improper to “refuse to hire, to discharge, to promote or demote, to harass during the course of employment, or to discriminate in matters of compensation, terms, conditions, or privileges of employment . . . ” For pregnancy, adverse action is defined as “an action where a reasonable employee would have found the action materially adverse, such that it might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Accordingly, the bill likely covers a broader range of conduct than the other sections of the CADA.

Notice

To help educate employees about their rights under the new law, the bill requires employers to give new employees notice of their rights under this section at the start of employment. Further, employers are required to give current employees notice by December 8, 2016. Moreover, employers are required to post a notice in the workplace (along with the other employment law posters).

Although the bill does not provide a remedy for an employer’s failure to provide notice to existing or new employees, employers should comply with those provisions.

Remedies

Before filing a lawsuit, an employee who believes she has suffered an adverse action or improperly denied an accommodation under the new bill must file a charge with the Colorado Civil Rights Commission within six months of the conduct. Once the employee has exhausted the administrative remedies, she may sue for back pay (up to two years reduced by what the employee could have earned with reasonable diligence), front pay, compensatory damages, and punitive damages.

Action Plan

In anticipation of the new bill taking effect on August 10, 2016, employers should:

  • Review all job descriptions to ensure that they clearly identify the essential functions of each job.

  • Review handbooks and policies to ensure that they clearly define the procedures for an employee to request a pregnancy-related accommodation.

  • Draft the required notice of rights for distribution to current employees on or before December 8, 2016.

  • Draft the required notice of rights for distribution to new employees.

  • Update on-boarding policies and procedures to include providing the required notice of rights.

  • Review the accommodations provided to other classes of employees to understand the accommodations that may be presumed reasonable for pregnancy-related accommodations.

  • Train the employee or employees who will respond to pregnancy-related accommodation requests on the requirements of the bill.

  • Train managers on the requirements of the new bill, including the prohibitions on taking adverse actions against employees who request or use accommodations and the prohibitions on requiring employees to accept accommodations that are unwanted or unnecessary.

  • Update employment law postings to include a notice of rights under the bill.

Article By Gillian McKean Bidgood of Polsinelli PC
© Polsinelli PC, Polsinelli LLP in California

North Carolina Retailers Navigate Conflicting Laws Regarding Transgender Protections

On March 23, 2016, the North Carolina Legislature passed House Bill 2, the “Public Facilities Privacy and Security Act” (“HB2”), that overturned a Charlotte ordinance extending anti-discrimination protections to lesbian, gay, bisexual, and transgender (“LGBT”) individuals and allowing transgender persons to use the bathroom of their choice. Instead, HB2 requires individuals to use public bathrooms that match the gender listed on their birth certificates. A swift public outcry followed, with many celebrities denouncing the law and canceling appearances in North Carolina, companies threatening to boycott, and the American Civil Liberties Union filing a lawsuit challenging HB2 as unconstitutional and for violating federal law.

North Carolina TransgenderNorth Carolina officials have refused to disavow HB2 and, on May 9, filed a lawsuit against the federal government seeking a ruling that HB2 is not discriminatory. The Justice Department has countersued, alleging that HB2 violates Title VII of the Civil Rights Act of 1964 (“Title VII). Regardless of the ultimate outcome of these lawsuits, it is clear that discriminating against LGBT individuals has real consequences, from both a business and legal perspective. What should retailers know and, more importantly, do to survive in this current environment?

At a minimum, retailers should familiarize themselves with their state’s employment nondiscrimination laws (if any) that apply to private employers. Twenty states (including California, Illinois, New Jersey, and New York) and the District of Columbia have passed employment non-discrimination laws that prohibit discrimination by private employers based on both sexual orientation and gender identity. Two states (New Hampshire and Wisconsin) have such laws covering sexual orientation only. These laws protect LGBT persons from discrimination in hiring and in the workplace.

Retailers also are encouraged to review their municipality’s nondiscrimination laws and regulations, if any. For example, New York City law prohibits gender identity discrimination, and the New York City Commission on Human Rights recently announced guidance (“NYC Guidance”) that makes clear what constitutes gender identity and gender expression discrimination under the NYC Human Rights Law. The NYC Guidance warns employers and business owners that they may violate New York City law if they intentionally fail to use a transgender employee’s preferred name, pronoun, or title, or refuse to allow a transgender employee to use single-sex facilities, such as bathrooms or locker rooms, and participate in single-sex programs consistent with their gender identity.

Retailers also should know that the EEOC has aggressively pursued transgender discrimination claims on theories of sex stereotyping and gender nonconformity under Title VII, which bars employers from discriminating against employees on the basis of their sex. In cases involving government employees, the EEOC has held that: (i) an employer’s restriction on a transgender woman’s use of a common female restroom facility constituted illegal sex discrimination under Title VII,(ii) an employer’s intentional references to a transgender female as “he” may constitute sex-based discrimination and/or harassment, and (iii) a transgender employee stated a valid Title VII sex discrimination claim based on his allegation that his employer took over a year to correct his name in the company’s computer system.

The EEOC has taken further action against private companies. For example, it recently entered into a consent decree with a Minnesota financial services company for allegedly refusing to let a transgender employee use the women’s restroom and subjecting her to a hostile work environment. In another action, a Florida eye clinic paid $150,000 to settle an EEOC lawsuit that sought relief for an employee who was allegedly discriminated against when transitioning from male to female.

In light of this climate, retailers are encouraged to accommodate the needs of transgender workers proactively rather than reactively responding to potential claims of discrimination. Retailers, particularly those operating in states with anti-discrimination laws that cover sexual orientation and/or gender identity, should implement a policy designed to foster workplace inclusion. Retailers can avoid significant business and legal risk if they follow these two directives:

  • Call transgender employees by their preferred names, pronouns, and titles, and promptly update internal databases (pay accounts, training records, benefits documents, etc.) with this information upon an employee’s request. The NYC Guidance, for example, advises employers to use the employee’s preferred name regardless of whether the employee has legally changed his or her name “except in very limited circumstances where certain federal, state, or local laws require otherwise (e.g., for purposes of employment eligibility verification with the federal government).” This is a sound policy that retailers beyond New York City should consider following. In addition, employers may choose to offer new business cards and email aliases for their employees.

  • Provide transgender employees access to bathrooms that correspond to their gender identity. On May 3, the EEOC issued a “Fact Sheet” stating that the denial of equal access to a bathroom corresponding to an employee’s gender identity qualifies as sex discrimination prohibited under Title VII and that contrary state law is no defense. The Fact Sheet encourages employers to refer to the more comprehensive “Guide to Restroom Access for Transgender Workers,” which was issued by the Occupational Safety and Health Administration (“OSHA”) and offers model practices for restroom access for transgender employees. Like the EEOC, OSHA advises that “all employees should be permitted to use the facilities that correspond with their gender identity.” Where possible, employers should provide employees with additional options, including single-occupancy gender-neutral (unisex) facilities and use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.

While the North Carolina Legislature has rolled back protections for the LGBT community, the media attention surrounding HB2 has been largely negative and has affected the businesses of companies operating in the state. Given the number of other states that have enacted laws expressly prohibiting sexual orientation and/or gender identity discrimination, the federal government’s enforcement position, and changing public opinion on the issue, retailers are on notice that such discrimination may have negative business or legal ramifications.

Article By Nathaniel M. Glasser & Jonathan L. Shapiro of Epstein Becker & Green, P.C.
©2016 Epstein Becker & Green, P.C. All rights reserved.

Oxford, Alabama, City Council Repeals Bathroom Ordinance Targeting Transgender Individuals

The Oxford, Alabama, City Council has repealed on May 4, 2016, an ordinance it passed a week previously that barred transgender people from using a bathroom that corresponds with their gender identity. (See our article, Oxford, Alabama, City Council Adopts Ordinance Restricting Access to Bathroom Facilities Based on Biological Sex.)

The ordinance made it unlawful for a person to use a bathroom or changing facility within the jurisdiction of the City that did not correspond to the sex indicated on the individual’s birth certificate. Persons deemed to have violated the ordinance could have faced a misdemeanor charge, punishable by a fine of up to $500 or up to six months’ incarceration.

 The ordinance quickly garnered national attention and civil rights groups, including the Human Rights Campaign and the Southern Poverty Law Center, publicly condemned the ordinance. In a letter issued to the Oxford City Council prior to the repeal, the Southern Poverty Law Center, the American Civil Liberties Union, and the ACLU of Alabama stated that the ordinance violated the Equal Protection Clause by singling out transgender people for different and unequal treatment. The groups also argued that the ordinance violated the due process clause, “because of its broad reach and lack of enforcement mechanisms,” which, according to the groups, left it unclear “whether people risk arrest simply for failing to carry their birth certificates to the restroom at all times.”

The letter also stated that the ordinance violated Title IX of the Education Amendments of 1972, which prohibits sex discrimination in public schools. The letter noted a recent Fourth Circuit Court of Appeals decision, G.G. v. Gloucester Cty. Sch. Bd., No. 15-2056, 2016 LEXIS 7026 (4th Cir. Apr. 19, 2016), in which the U.S. Court of Appeals for the Fourth Circuit, in Richmond, accorded deference to the Department of Education’s interpretation of regulations governing toilets, locker rooms and shower facilities. The Department of Education opined that a school must treat transgender students consistent with their gender identity.

In a special meeting, the Council voted 3-2 to repeal the ordinance. Because the mayor was ill and had not yet signed it, the Council could vote to recall the ordinance. In repealing the ordinance, some Council members expressed concerns regarding whether the ordinance violated Title IX of the Education Amendments of 1972.

In addition to the repeal of the Oxford ordinance, the U.S. Department of Justice took a similar position in a letter dated May 4, 2016, to North Carolina Governor McCrory. The DOJ stated that North Carolina’s law restricting bathroom access to restrooms based on an individual’s biological sex and not based on an individual’s consistent gender identity violates both Title VII of the Civil Rights Act and Title IX of the Education Amendments of 1972. (See our article, Department of Justice Warns Governor that North Carolina LGBT Law is Unlawful.)

Article By Thomas A. Davis, Michelle E. Phillips & Kimberley R. Ward of Jackson Lewis P.C.

Jackson Lewis P.C. © 2016

Fourth Circuit Appeals Court Rules in Favor of Transgender Student

Schools across the country have found themselves at the forefront of the societal debate on the appropriate manner in which to address issues surrounding accommodation of transgendered persons. Conflicting regulatory rulings, contemplated state legislation, and in the case of North Carolina, state prohibitions on accommodation have led to a patchwork of inconsistencies and doubt in relation to a school district’s legal duties.

On Tuesday, April 19, the United States Court of Appeals for the Fourth Circuit ruled in favor of a transgender student, Gavin, who was born female and wished to use the boys’ restroom at his rural Virginia high school. The ruling, G.G. v Gloucester County Sch. Bd., No. 15-2056 (4th Cir., Apr. 19, 2016), is significant, as it marks the first time that a federal appellate court has ruled that Title IX extends to protect the rights of transgender students to use the bathroom that corresponds with the student’s gender identity.

Gavin had previously been granted approval by administration to use the boys’ restroom and did so for a short period of time until the school board adopted a policy prohibiting him from using the bathroom of the gender with which he identifies. Instead, according to board policy, Gavin was required to use the restroom of his biological gender or a separate, unisex restroom. Gavin filed a lawsuit claiming that the school board impermissibly discriminated against him in violation of Title IX and the Equal Protection Clause.

In reaching its decision, the Fourth Circuit Court of Appeals analyzed the Department of Education (“DOE”) regulations implementing Title IX. Those regulations permit schools to provide “separate toilet, locker room, and shower facilities on the basis of sex,” so long as the facilities are comparable. The question the Court faced in light of this regulatory guidance was how to apply the “separate but equal” mandate to transgender individuals.

The DOE argued that the regulation should be interpreted to mean that schools generally must treat transgender students consistent with their gender identity; the Gloucester school board argued for an interpretation that defined students consistent with their biological sex. The Court recognized that the plain language of the regulation clearly permits schools to provide separate toilet, locker room, and shower facilities for its male and female students. By implication, the regulation also permits schools to exclude males from the female facilities, and vice versa. Although the regulation is silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access to sex-segregated restrooms, the Court concluded it is susceptible to two interpretations – determining maleness or femaleness is either a matter exclusively of biology, or it is a matter of gender identity.

The Court agreed that public restrooms, locker rooms, and showers historically have been separate on the basis of sex, and that individuals have a legitimate and important interest in bodily privacy. Nonetheless, the Court stated that these safety concerns or privacy interests should be addressed by the DOE or Congress, and not the Court. Thus, the Court held that it was required to afford deference to the DOE’s interpretation. In so doing, the Court held that an individual’s sex should be determined by reference to the student’s gender identity, i.e., consistent with DOE interpretation.

The Fourth Circuit only addressed the student’s claims with respect to Title IX and whether Title IX extends to gender identity. The case has been remanded back to the district court to decide whether the school board violated Title IX and the Equal Protection clause of the 14th Amendment. However, the Fourth Circuit’s ruling only has precedential value in that circuit (encompassing Maryland, Virginia, West Virginia, North Carolina, and South Carolina), which means those states are now required to follow the DOE’s interpretation of Title IX – that schools generally must treat transgender students consistent with their gender identity.

What Does This Mean for Your District?

Although not binding in the Seventh Circuit, which encompasses Wisconsin, the Fourth Circuit’s decision is instructive as to how Wisconsin school districts should address restroom, locker room, and shower concerns under Title IX. Additionally, the DOE has been aggressive in its efforts to ensure that transgender students can use bathrooms in public schools that correspond with their gender identities. In November 2015, the DOE Office of Civil Rights (“OCR”) issued a letter of findings to a Chicago-area school district demanding that the school district give unfettered locker room access to a transgender student for the facilities of the gender in which the student identified. The OCR gave the school district only 30 days to resolve the matter or risk forfeiting Title IX funding. The school district reached a settlement with OCR prior to having its federal funding rescinded.

School districts should begin the process (if they have not done so already) of developing policies to set the parameters and processes the district will follow when a transgender student seeks guidance and clarity. A district should further ensure that its non-discrimination policy is comprehensive in scope as to all protected classes of students. District policies should address how the district will ascertain the student’s gender identity; what proof, if any, a district will require; the manner in which a student should be addressed and allowed to change his/her name; student dress codes; student records; physical education class; school-sponsored and WIAA-sanctioned sports; and of course, restroom, locker room, and shower facilities.

If your district has a prior policy in place regarding transgender students and gender identity, your district should consider revising the policy to ensure it does not run afoul of Title IX. Ultimately, school districts should be prepared to respond to a request from a student seeking direction as to school processes and procedures. Now is the time to prepare for the inevitable and ensure the district has laid the framework to quickly and fairly respond.

Article By Christine V. Hamiel of von Briesen & Roper, S.C.

©2016 von Briesen & Roper, s.c

International Women’s Day 2016: Time is Now for Global Gender Equality and to (finally) Close Gender Gap

Today is International Women’s Day. Each year on March 8th, women celebrate the progress we’ve made while continuing to advocate for change regarding gender equality and women’s rights. Around the world, celebrations range from very simple demonstrations of respect, appreciation and love towards women to elaborate events that honor our economic, political and social achievements.

International Women’s Day is believed to have originated on March 8, 1908. On that day, thousands of women marched through the streets in New York City publicly calling for better working conditions, higher pay and the right to vote. The first National Women’s Day was held the following year. In 1910, women from around the world gathered in Denmark for the second International Conference of Working Women, where the idea for International Women’s Day was proposed. As a result, the first international celebration was held one year later in 1911.

This year’s theme is “Pledge for Parity”. The “Pledge for Parity” calls for complete gender equality and the closing of the gender gap in social, economic, political, and other situations. In light of this year’s theme, let’s look at some of the recent statistics regarding gender equality.

  1. According to US Aid around the world:

  • Approximately 62 million girls are not in school.

  • One in three women will experience gender-based violence in her lifetime.

  • In the developing world, one in seven girls is married before her 15th birthday.

  • Although constituting 40 percent of the agriculture labor force, only 3 to 20 percent of women are landowners.

  1. On March 3, 2016, the Economist published its “glass-ceiling index” listing the countries where women have the best chance of equal treatment at work. The Nordic countries of Iceland, Norway, Sweden and Finland were ranked 1-4. Interestingly, in these countries, women are present in the labor force at rates similar to men. For example, in Iceland, women have 44% of the seats on listed-company boards. By way of comparison, the U.S. and Great Britain are ranked 20th and 25th respectively. Japan, Turkey and South Korea were the three lowest-ranked countries of the 30 countries in the list.

  2. In February 2016, a white paper by the Peterson Institute for International Economics presented the results of a global survey of 21,980 firms from 91 countries. The survey found that approximately 60 percent of respondents (13,017 firms) did not contain any recorded female board members. Additionally, over 50 percent of the firms (11,802 firms) did not contain any female executives. Of the remaining half, 57 percent had only one female executive. Only 945 firms, less than 5 percent, had a female chief executive officer. These statistics are alarming in view of the paper’s conclusion that the presence of women in corporate leadership has been shown to improve firm performance. Specifically, the paper noted that the presence of women in corporate leadership was positively correlated with firm characteristics such as size, the absence of discriminatory attitudes toward female executives and the availability of paternity leave.

  3. The results of the survey described in the white paper by the Peterson Institute were not terribly surprising in view of the 2015 Women in the Workplace report published by Lean In and McKinsey & Company. Sadly, the report noted that women remain under-represented at every level in the corporate pipeline and that women continue to face greater barriers to advancement and a steeper path to senior leadership. While the report showed that women leave organizations at most levels at a lower rate than men, it also showed that women advance far more slowly from one level to the next. The report noted that the uneven playing field between men and women has taken a toll on women in leadership. According to the report, senior-level women are markedly less satisfied with their role, opportunities for advancement and career than their male counterparts. Bottom line, according to Sheryl Sandberg, COO of Facebook and Co-Founder of LeanIn.org, at the current rate, it will take more than 100 years for women to reach equality in the workplace. Moreover, Ms. Sandberg said, “If NASA launched a person into space today, she could soar past Mars, travel all the way to Pluto and return to Earth 10 times before women occupy half of C-suite offices.  Yes, we’re that far away.”

  4. According to UN Women:

  • As of August 2015, only 22 percent of all national parliamentarians were women (in contrast to 11.3 percent in 1995).

  • As of August 2015, there were only 11 women serving as Heads of State and 10 as the Head of a Government.

  • There are wide variations in the average percentages of women parliamentarians throughout the world across all chambers (single, lower and upper houses). For example, as of August 2015, the number of women parliamentarians was 41.1 percent in the Nordic countries, 25.5 percent in the Americas, 24.4 percent in Europe (excluding the Nordic countries), 23.0 percent in sub-Saharan Africa, 18.4 percent in Asia, 17.1 percent in the Middle East and North Africa, and 15.7 percent in the Pacific.

After reviewing and digesting the above statistics, I believe it is very easy to become frustrated (and even angry) with the slow pace at which women are achieving global gender equality. After all, isn’t increasing gender equality about harnessing the talent, creativity, emotional intelligence, courage, compassion and passion that women have to ensure a better world and future for everyone? When viewed that way – eliminating the gender gap isn’t just the right thing to do – it’s the smart and economically sensible thing to do.

Many of us, myself included, tend to look at women in positions of power and influence (such as Sheryl Sandberg, Melinda Gates, etc.) to lead the way in championing the changes needed to achieve global gender equality. However, it simply is not enough. Each one of us needs to take personal responsibility to do what we can push for change and advance gender equality. Quite frankly, at this stage, no effort is too small. So what can you do? Consider volunteering or donating to organizations that are dedicated to helping educate girls or women around the world (such as CARE, Global Fund for Women, Girls Education International and 60 Million Girls).

Build your confidence and eliminate your fear of speaking up or of “leaning in”. Don’t be afraid to take risks and work on promoting yourself. However, at the same time, be supportive and encouraging of other women and help them to build their confidence and promote themselves. As Madeline Albright said at the Celebrating Inspiration luncheon with the WNBA’s All-Decade Team in 2006, “There is a special place in hell for women who don’t help other women.”

Consider becoming an entrepreneur. If entrepreneurship is not for you, then support a female-owned start-ups and local businesses.

Become a mentor. Women need mentors. Women need that supportive advocate who guides and says, “Don’t give up. Stay the course”. A mentor is critical because it is that person you can have a frank conversation with who will listen to your tough questions and give you honest answers.

Encourage your employer to build a workplace of inclusion and respect. Studies have shown that workplaces that openly communicate their values and strategies on equality, human rights and inclusion, are able to attract a wider pool of talent and have greater success in retaining staff. As such, women should not be afraid to encourage human resource initiatives that promote gender quality such as increasing the number of female hires, providing flexible work schedules and options for working at home. We should not be afraid to use the avenues within our institutions to voice our concerns in an attempt to hold senior leadership accountable for failing to actively and aggressively promote gender equality, such as by using employee surveys, team and all-employee meetings, etc.

“A woman with a voice is by definition a strong woman. But the search to find that voice can be remarkably difficult.” – Melinda Gates

Article By Lisa L. Mueller of Michael Best & Friedrich LLP

© MICHAEL BEST & FRIEDRICH LLP

Hillshire Brands Company Pays $4 Million to Settle Race Discrimination Suit

EEOCSealAfrican American Bakery Workers Subjected to Racist Comments and Graffiti in the Worksite, Federal Agency Charged

DALLAS – Hillshire Brands Company (formerly known as the Sara Lee Corporation) will pay $4 million to a group of 74 African-American former employees and provide other significant relief to settle a lawsuit where they were subjected to a racially hostile work environment at a former Sara Lee facility in Paris, Texas, the agency announced today.

EEOC claimed African-American employees were subjected to racist graffiti on the walls of the bathrooms and locker room. The former bakery employees also alleged that during work hours, they were berated with racial slurs by supervisors and other white co-workers, and complaints by the plant workers went unaddressed by management.

Race discrimination in the workplace, including race harassment, violates Title VII of the Civil Rights Act of 1964.  The EEOC filed suit (Case No. 2:15-cv-1347) in U.S. District Court for the Eastern District of Texas, Marshall Division, after first attempting to reach a pre-litigation settlement through its conciliation process.

“The Commission completed an extensive investigation at the Sara Lee plant, which included conducting interviews with the former bakery workers,” said Meaghan L. Shepard, trial attorney for the Dallas District of EEOC. “EEOC determined racial slurs and graffiti continued at the facility in Paris for years, until the doors finally closed in November 2011.”

“EEOC strongly believes it is critically important for companies to set policies and provide effective avenues for complaints to address racial harassment in the workplace,” said EEOC Supervisory Trial Attorney Suzanne Anderson. “African-American workers on the Sara Lee bakery production lines in Paris felt embarrassed and intimidated by the graffiti in the bathroom and the racial slurs on the production floor. Strong corporate policies and quick remedial action protects against this type of workplace discrimination.”

The two-year consent decree settling the case provides for an injunction where Hillshire Brands will implement various preventative approaches regarding discrimination or harassment against any employee on the basis of race and will periodically report incidents or investigations to EEOC. Hillshire Brands also agreed to engage in remedial measures such as anti-discrimination training and implementation of procedures to prevent and promptly address graffiti issues.

Belinda McCallister, acting director of EEOC’s Dallas District Office, said, “We are pleased with the approach taken by the employer to acknowledge the hostile environment that once existed and for taking positive steps toward ensuring a healthy workplace in the future.”

EEOC enforces federal laws prohibiting employment discrimination. Further information about EEOC is available on its web site at www.eeoc.gov.

See original news release here: http://www1.eeoc.gov/eeoc/newsroom/release/12-22-15.cfm

© Copyright U.S. Equal Employment Opportunity Commission

Illinois: Transgender Locker Room Policy Eludes School District Facing Government Sanctions Under Title IX

An Illinois school district has violated anti-discrimination laws by not allowing a transgender student who identifies as female and is on her high school’s girls’ sports team to change and shower in the girls’ locker room, the United States Department of Education Office of Civil Rights (“OCR”) has held.

The OCR released its findings on November 2, 2015, after completing an extensive investigation of a complaint for unlawful discrimination under Title IX of the Education Amendments of 1972 filed by a transgender female high school student against the Township High School District 211 in Palatine, Illinois. Title IX prohibits discrimination on the basis of sex in any federally funded education program or activity. An entity in violation of Title IX may lose some or all of its Title IX funding.

Schools districts, colleges, and private employers are increasingly at risk of transgender discrimination charges or complaints under laws enforced by the OCR, the Equal Employment Opportunity Commission, the Department of Labor, the Department of Justice, and the Occupational Safety and Health Administration as these agencies develop their policies on transgender issues.

The EEOC, the DOL, and the DOJ have interpreted Title VII of the Civil Right Act’s prohibitions on sex discrimination to bar employment discrimination based on gender identity.

On the employment front, in the seven months between October 2014 and April 2015, EEOC received 505 charges based on sexual orientation discrimination and 112 charges based on gender identity. Moreover, the EEOC’s Strategic Enforcement Plan for 2012-2016 includes the investigation and enforcement of LGBT (lesbian, gay, bisexual, and transgender) sex stereotyping claims .

Further, effective April 2015, the DOL’s Office of Federal Contract Compliance Programs requires federal contractors subject to Executive Law 11246 to allow transgender employees to use the restroom and other facilities consistent with their gender identity (See article DOL Releases Regulations Extending Protections to Lesbian, Gay, Bisexual, and Transgender Employees, Applicants).

Finally, the OSHA guidelines require all employers under its jurisdiction to provide a “safe and healthy working environment for all employees” and transgender employees “should have access to restrooms that correspond to their gender identity.”

OSHA recommends that companies should implement written policies to ensure that all employees have “prompt access to appropriate sanitary facilities.” The agency’s best practices guide also recommends providing options from which a transgender employee may choose. These can include single-occupancy gender-neutral facilities and the use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls (See article Restroom Access Should Be Consistent with Employee’s Gender Identity, OSHA Says).

Background

The Township High School District 211 denied a transgender female student access to three separate girls’ locker rooms (“LR”) (including the Physical Education (“PE”) LR, the PE Swim LR, and the Athletics LR). The Student alleged the District discriminated against her based on sex by denying her access to the girls’ locker rooms because of her gender identity and gender non-conformity.

OCR Decision

The OCR found the District violated Title IX for excluding the Student from participation in and denying her the benefits of its education program, providing services to her in a different manner, subjecting her to different rules of behavior, and subjecting her to different treatment on the basis of sex.

“The evidence shows that as a result of the District’s denial of access to the girls LRs, Student A has not only received an unequal opportunity to benefit from the District’s educational program, but also has experienced an ongoing sense of isolation and ostracism throughout her high school enrollment.”

Other than access to the female locker rooms, the OCR found the District treated the Student consistently with her gender identity, including identifying her by her female name and with female pronouns, providing her with full access to girls’ restrooms and allowing her to participate in girls’ sports.

Alternatives Not Acceptable

The District argued it offered the Student alternative changing options, such as permitting her to change with several female friends in an alternative restroom closer to the PE gym and offering her another restroom near the Swim LR.

The OCR found that the alternatives “continued or would continue to exclude [the Student] from the girls’ locker rooms and set her apart from her female classmates and teammates,” particularly as some of the proposed alternative facilities were not comparable to those provided for other girls.

For example, unlike the other female students who used the PE class swim unit, the Student had access only to a rinse shower and was not able to dry her hair because there was no electrical outlet. Furthermore, by not having access to the PE locker room, she was subjected to stigma and different treatment, OCR said, because she occasionally had been late to class or missed class announcements that were made in the girls’ locker room.

Finally, as a result of being denied access to the girls Athletics LR, the Student felt excluded from the team because she missed the informal huddle in the LR before matches, locker room “girl talk,” and the female bonding in the LR. According, the OCR concluded the District denied the Student’s Title IX rights.

Privacy Concerns Unavailing

While acknowledging that it denied the Student access to the female locker rooms, the District argued that it had to balance the Student’s rights and interests with two distinct privacy concerns of other female students:

  • the need to protect female students from “being observed in a state of undress by a biologically male individual,” and

  • the “inappropriateness of allowing young female students to view a biologically naked male in the locker room in a state of undress.”

The OCR found both of these arguments unpersuasive as the District had installed five showers with privacy curtains and five restroom stalls in the girls PE LR, but had not provided private changing areas in the other two LRs.

“The District’s installation and maintenance of privacy curtains in one locker room go a long distance toward achieving such a nondiscriminatory alternative because providing sufficient privacy curtain access to accommodate any students who wish to be assured of privacy while changing would allow for protection of all students’ rights in this context. Those female students wishing to protect their own private bodies from exposure to being observed in a state of undress by other girls in the locker rooms, including transgender girls, could change behind a privacy curtain.”

Given the Student’s willingness to change privately, the OCR said, the District could have provided equal access to all three LRs if it installed additional privacy curtains for any student that wanted privacy.

Takeaways

Federal government agencies are increasingly examining the purported protections afforded to transgender students and employees, in both the public and private sectors. How to handle transgender issues is still a work-in-progress for the agencies and the entities they regulate. In this case, despite the District’s accommodations and options to provide equal treatment to the Student in all respects other than access to the Locker Room, the OCR nevertheless held its efforts were insufficient. Moreover, states also have laws protecting LGBT individuals (See article Utah Governor Signs Landmark LGBT and Religious Expression Anti-Discrimination Bill).

The following steps can help lower the risk of being under government scrutiny:

  1. closely review and revise EEO (equal employment opportunity), harassment, and transgender policies;

  2. ensure proper sensitivity training of administrators, faculty, and students to foster diverse and inclusive primary, secondary school, and campus environments to avoid stigmatizing transgender students; and

  3. ensure that accommodations for transgender students and employees provide equal access in all respects, as well as balance privacy concerns.

Because of the complexities involved in this area, school districts, colleges, and private sector employers would be well-served to regularly review their policies and practices with counsel to ensure they address specific organizational needs effectively and comply with applicable law.

Article By Michelle E. Phillips, Bethany Swaton Wagner & Gregg E. Clifton of Jackson Lewis P.C.

Jackson Lewis P.C. © 2015