Transgender Employment Rights in Educational Institutions: A Legal & Practical Survey - PowerPoint Presentation

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Transgender Employment Rights in Educational Institutions: A Legal & Practical Survey

Presented By: Paula A. Barran

Barran

Liebman LLP

March 16, 2018Slide2

“It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry.” Hively v. Ivy Tech Cmty. Coll., No. 15-1720, 2016 U.S. App. LEXIS 13746, at *55 (7th Cir. July 28, 2016)7th Circuit on Sexual Orientation ClaimsSlide3

HIVELY IN THE SEVENTH CIRCUIT EN BANC“We must decide … what it means to discriminate on the basis of sex…”“Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils…” (citing Oncale)“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.”Slide4

IT’S A BIG COUNTRY WITH A LOT OF COURTSUntil the Supreme Court decides the applicability of federal law, there will continue to be questions about what Congress meant in Title VII when it wrote: It shall be an unlawful employment practice for an employer:(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.Slide5

IMPORTANT TERMS: GENDER IDENTITY, GENDER EXPRESSION, AND SEXUAL ORIENTATIONGender identity is an individual’s internal sense of gender, which may differ from the person’s sex assigned at birth, and can include a gender identity that is transgender or androgynousGender expression is the manner in which a person expresses gender, such as through dress, appearance, manner, or speechSexual orientation is an individual’s heterosexuality, homosexuality, bisexuality, gender identity, regardless of assigned sex at birthSlide6

WHAT FEDERAL LAW SAYSTitle VII prohibits discrimination on the basis of gender:Older interpretations refer to biological genderIn 1989, Price Waterhouse v. Hopkins recognized gender stereotyping as a legal theory: “After Hopkins and Schwenk, it is unlawful to discriminate against a transgender (or any other) person because he or she does not behave in accordance with an employer’s expectations for men or women.” Kastle v. Maricopa Cty. Cmty. Coll. Dist., 325 F. Appx. 492, 493 (9th Cir. 2009)Slide7

EEOC ENFORCEMENT“EEOC interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation. These protections apply regardless of any contrary state or local laws.” EEOC, What You Should Know About EEOC and the Enforcement Protections for LGBT Workers Slide8

TWO RECENT CHANGES (AND WEAREN’T SURE WHAT THEY SIGNAL)Administration ban on service by transgender people in militaryAdministration direction to Pentagon expected to direct Secretary to deny admittance to transgender individuals and stop spending on medical treatment for those currently serving. Wall Street Journal , August 23, 2017 https://www.wsj.com/article_email/white-house-sets-rules-for-military-transgender-ban-1503534757-lMyQjAxMTE3NzIyMzcyOTM1Wj/Department of Education rescission of requirement to allow transgender students to use bathroom corresponding with gender identity“the Departments believe that, in this context, there must be due regard for the primary role of the States and local school districts in establishing educational policy…All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment.”Slide9

STATE LAWAlaskaState law does not prohibit employment discrimination based on sexual orientation or gender identityJuneau, Anchorage have city ordinancesOregonOAR 839-005-0003WashingtonRCW 49.60.180Prohibits employers from discriminating on the basis of sexual orientation and gender identity Slide10

EXECUTIVE ORDER 11246 HAS A NEW LOOKEO 13672 (2014) added sexual orientation and gender identity to the protected classes, such as federal contractors, as identified in EO 11246OFCCP’s final implementing rule applies to contracts entered into or modified after the effective date of April 8, 2015 Since at least 2014, OFCCP has considered discrimination on the basis of gender identity and transgender status to be sex discriminationSlide11

CONTRACTORS’ REQUIREMENTSChange the Equal Opportunity Clause to include gender identity and sexual orientation as protected classes.OFCCP definitions:The term “gender identity” refers to one’s internal sense of one’s own gender. It may or may not correspond to the sex assigned to a person at birth, and may or may not be made visible to others.“Sexual orientation” refers to an individual’s physical, romantic, and/or emotional attraction to people of the same and/or opposite gender. Examples of sexual orientations include straight (or heterosexual), lesbian, gay, and bisexual.Notify OFCCP and State Department when a country denies a visa because of sexual orientation or gender identity. Slide12

WHAT ISN’T REQUIRED?Contractors are not required to collect or analyze dataAdditional outreach is not requiredSlide13

WHAT IS NOT PERMITTED?DiscriminationAsking for proof of gender identity or transgender statusRequesting documentation that is not requested from other employees: Name changeMedical leaveDenying the right to use restrooms consistent with gender identityDenying same sex married spouses the benefits provided to opposite sex spouses Slide14

RELIGIOUS EXEMPTIONSThe requirements apply to contractors, not to grant recipients, so religious institutions may not be coveredIf they are covered:The Title VII “ministerial exception” remains in placeReligious corporations that are contractors may favor members of a particular religionThe Constitution prohibits the government from interfering with the ability of a religious organization to make employment decisions about its “ministers”Slide15

WAIT – THERE’S MORE!OFCCP August 15, 2016 sex discrimination guidelines update:Contractors must allow workers to use bathrooms, changing rooms, showers and similar facilities consistent with the gender of which the worker identifiesCategorical exclusion of coverage for care related to gender dysphoria or transition is discriminatoryDiscrimination based on sex stereotypes is prohibited Slide16

PLUMBING - YOURSPlumbing (the building variety) is not the easiest issue:Some building codes require gender segregationOnce the plumbing stack is built, it may take major construction to change it Offering separate choices for “men,” “women,” and “others” is a bad idea (does anyone really want to be an “other”?)If an employer has gender specific and gender neutral restrooms, the employer may not require employee to use gender neutral Slide17

PLUMBING – HIS/HERS/THEIRSHint: None of your business.Hint: Does the employer ask other employees about theirs?Hint: Does the employer ask other employees to provide medical proof of gender as a condition of using the toilet facilities?Plan for equal treatment. Slide18

OSHA: RESTROOMS ARE A SAFETY ISSUEEmployers must provide employees with sanitary and available toilet facilities and may not impose unreasonable restrictions on employee use:Adverse health effects can result if toilets are not available when neededRestricting employees to using restrooms that are inconsistent with gender identity, or segregating them from other workers by requiring specific restrooms, singles them out and can result in avoidance leading to injury or illness Slide19

OSHA’S MODEL PRACTICESThe employee should determine the most appropriate and safest option for himself or herselfEmployees may not be required to provide medical or legal documentation of their gender identityNo employee should be required to use a segregated facility Slide20

OSHA’S MODEL PRACTICESAll employees should have prompt access to appropriate sanitary facilities and be permitted to use facilities that correspond with their gender identity:Employees should determine the most appropriate and safest optionsEmployees should not be asked to provide documentationNo segregated facilities apart from other employees because of gender identity No unreasonable distance or travel timeAdditional options:Single occupancy gender neutral (unisex) facilitiesMultiple occupant gender neutral facilities with lockable single occupant stallsSlide21

BY THE WAY: PORTLAND CITY CODE14A.50.110 provides:(E) It is unlawful for any male person to enter a restroom marked “Women.” This Section does not apply to a male child with his mother or female guardian, or an authorized person in the discharge of his regular duties(F) It is unlawful for any female person to enter a restroom marked “Men.” This Section does not apply to a female child with her father or male guardian, or an authorized person in the discharge of her regular dutiesBut…(H) The above requirements do not excuse a failure to provide reasonable and appropriate accommodations permitting all persons access to restrooms consistent with their expressed genderSlide22

Current status: injunction against enforcement (based on Religious Freedom Restoration and Administrative Procedure Act rulemaking requirements) Insurance plans cannot discriminate on the basis of treatment being for gender identify disorder IF those same treatments are provided for other conditions, such as hysterectomy and mammogramsCoverage of gender reassignment surgery (gender confirmation) is not required, but blanket exclusions are prohibitedFinal HHS ACA rule prohibits denial of health care for sex-specific conditions or ailments because the patient identifies as a different sexINSURANCE: SECTION 1557 PROTECTIONS ON HOLD(COURT INJUNCTION)Slide23

FMLA (AND OTHER LEAVE LAWS)FMLA may or may not cover medical treatment related to transitioningSlide24

DRESS CODESEmployers may enforce otherwise valid dress codes or policiesBUT employers must provide reasonable accommodation based on individual health and safety needsSlide25

LEARNING HOW TO TALK: PRONOUNS AS LINGUISTIC TOOLSThe employer can always use the employee’s nameThe employer can always ask (and advertise) which pronoun the employee prefers“He” and “she” do not cover every option“They” has traditionally been plural but may now be a substitute for “he” or “she”Slide26

WORKING WHILE TRANSITIONINGOPM Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace:Treat transition with sensitivity and confidentiality, particularly medical informationEvaluate gender-specific dress and appearance rules and apply them consistent with gender to which employee is transitioningUse the name and pronoun appropriate to the gender the employee is now presenting; do not tolerate continued use of former name and genderPermit restroom and locker room access consistent with the gender the employee is presentingSlide27

WORKING WHILE TRANSITIONINGMore from the OPMGender differentiated job assignments should be made consistent with the gender the employee is presenting once the employee has begun working in that genderChange personnel records to show new name and genderSick and medical leave may be used for treatmentSlide28

TRAINING AND POLICIESFreshening diversity/respect/harassment training is always a good ideaConsider inviting speakersBe sensitive to bullying and mistreatment concerns if the employer has a transgender or transitioning employeeBUT CAN I TALK ABOUT IT?Hint: treat this like private or medical information that is confidential to the employeeHint: talk to the employee about what the employee would like the employer to disclose or keep confidentialSlide29

~ THANK YOU ~Paula A. Barranpbarran@barran.com(503) 276-2143