Employment Discrimination and Sexual Orientation - New Developments

LORMAN SEMINAR – EMPLOYMENT LAW UPDATE IN UTAH

EMPLOYMENT DISCRIMINATION
AND SEXUAL ORIENTATION –
NEW DEVELOPMENTS

W. Mark Gavre
November 9, 2012
Provo, UT
4838-3001-0385

parsonsbehle.com

Introduction
 Bans against anti-gay employment
discrimination growing rapidly
 Biggest change in discrimination law in
decades
 ―Sex discrimination‖ construed broadly to
protect gay, lesbian and transgender
employees and applicants

2

Definitions
 ―Sexual orientation‖ refers to a person‘s
physical and/or emotional attraction to the
same and/or opposite gender
 ―Gender identity‖ refers to a person‘s
psychological identification as male or
female, which may or may not correspond
to the person‘s sex at birth

3

Definitions (cont.)
 ―Gender expression‖ refers to the external
characteristics and behaviors that are
socially defined as either masculine or
feminine, such as dress, grooming,
mannerisms, speech patterns, etc.

4

Definitions (cont.)
 ―Transgender‖ is an umbrella term
referring to persons who express their
gender differently from what most people
expect, such as not matching their
designated sex at birth, including people
who are transsexual, cross-dressers, or
otherwise gender non-conforming

5

Definitions (cont.)
 ―Transsexual‖ refers to a person who has
changed or is in the process of changing
his or her physical and/or legal sex to
conform to his or her internal sense of
gender identity

6

Definitions (cont.)
 ―Gender transition‖ refers the process by
which a person modifies his or her
physical characteristics and/or manner of
gender expression to conform to his or her
gender identity
 This may include hormone therapy or sexreassignment surgery

7

Company Policies
 Most large, ―Fortune 500‖ companies have
policies banning discrimination based on
sexual orientation and gender identity
 Increasingly, smaller companies are
adopting such policies

8

State Laws
 21 states and Washington D.C. prohibit
discrimination based on sexual orientation
or gender identity: CA, CO, CT, DE, D.C.,
HI, IL, IA, MA, MD, ME, MN, NH, NJ, NM,
NY, NV, OR, RI, VT, WA, WI

9

Utah Local Ordinances
 15 Utah cities, towns, and counties have
ordinances banning anti-gay bias in
employment: Springdale, Park City, Alta,
Logan, West Valley City, Murray,
Taylorsville, Moab, Midvale, Ogden,
Harrisville, Salt Lake City, Salt Lake
County, Summit County, and Grand
County

10

Salt Lake City Ordinance
 ―An employer may not refuse to hire,
promote, discharge, demote or terminate
any person, and may not retaliate against,
harass or discriminate…because of a
person‘s sexual orientation or gender
identity‖

11

Title VII Unchanged
 ―It shall be an unlawful employment
practice for an employer to fail or refuse to
hire or to discharge any individual or
otherwise discriminate against any
individual…because of such
individual‘s…sex…‖
 Yet the law is changing…

12

Sexual Stereotyping
 In Price Waterhouse v. Hopkins (1989) the
U.S. Supreme Court held that treating a
female employee differently because she
did not conform to a gender stereotype
was sex discrimination
 Hopkins was too ―macho‖ and
―overcompensated for being a woman‖

13

Price Waterhouse (cont.)
 She was told to ―walk more femininely, talk
more femininely, dress more femininely,
wear make-up, have her hair styled, and
wear jewelry‖
 Adverse treatment for not conforming to
gender-based expectations--―a woman
cannot be aggressive‖--violates Title VII

14

Male Stereotyping
 In Doe v. City of Belleville (1997), two
teenage boys were harassed by male coworkers for wearing earrings. No women
in the workplace
 Was it sexual harassment? Judge: Would
the teenagers have been harassed for
wearing earrings if they were girls?

15

Belleville (cont.)
―A man who is harassed because his voice
is soft, his physique is slight, his hair is long,
or because in some other respect he…does
not meet his coworkers‘ idea of how men
are to appear and behave is harassed
because of his sex‖

16

Transgender Discrimination
 In Glenn v. Brumby (2011), discrimination
against employee who was changing his
gender held to be sex discrimination
 Glenn born male, identified as female
 Glenn hired as male in 2005
 In 2006 Glenn began to transition to
female

17

Glenn (cont.)
 Supervisor: ―It‘s unsettling to think of
someone dressed in women‘s clothing
with male sexual organs inside that
clothing‖ It‘s ―unnatural‖
 Supervisor fired Glenn because ―Glenn‘s
intended gender transition was
inappropriate, that it would be disruptive,
that some people would
18

Glenn (cont.)
view it as a moral issue, and that it would
make Glenn‘s co-workers uncomfortable‖
 Court: ―A person is defined as
transgender precisely because of the
perception that his or her behavior
transgresses gender stereotypes. The
very acts that define transgender people
as transgender are those that contradict
19

Glenn (cont.)
stereotypes of gender-appropriate
appearance and behavior…Accordingly,
discrimination against a transgender
individual because of her gender nonconformity is sex discrimination…All
persons, whether transgender or not, are
protected from discrimination on the basis
of gender stereotype‖

20

EEOC’s New Position
 On April 20, 2012, the EEOC issued a
decision in Macy v. Holder that
transgender discrimination is sex
discrimination as a matter of law
 Macy, former Phoenix police detective,
applied for job at ATF and was told he had
the job

21

EEOC on Transgender
Discrimination (cont.)
 Macy told ATF that she was changing from
male to female
 ATF: job no longer available
 EEOC: ―Intentional discrimination against
a transgender individual because that
person is transgender is, by definition,
discrimination ‗based on…sex‘ and such
discrimination violates Title VII‖
22

Hunter v. UPS
 Hunter, born female, transitioning to male
 In 2008 applied for part-time job, using
2006 application with birth name ―Jessica‖
 Hunter presented as male but not yet
begun hormone therapy
 Hunter used binder to hide his breasts,
wore men‘s shirt, pants and shoes and cut
his hair short
23

Hunter (cont.)
 Hunter denied job, given two reasons:
– UPS not hiring (false)
– Poor job history (others hired with similar
history)

 Hunter claims discrimination based on
gender identity or sexual orientation
 Court: no evidence that UPS was aware
of Hunter being transgendered or gender
non-conforming
24

Hunter (cont.)
 Court: ―The employee must show that the
employer was sufficiently aware of the
employee‘s status to have been capable of
discriminating based on it….Many fashion
trends have called for women to wear
short haircuts, men‘s clothes, or men‘s
shoes. To hang a rule of law on fashions
that may change with the times would
create an unworkable rule.‖
25

EEOC v. Boh Brothers Const.
 Kerry Woods worked as construction
worker on all male crew
 Court: supervisor was ―a world-class trash
talker and the master of vulgarity‖
 Woods was ―the primary and constant
victim of [supervisor‘s] offensive abuse
and harassment‖

26

EEOC (cont.)
 Supervisor called Woods:
– ―faggot‖ and ―princess‖

 Supervisor simulated anal sex behind
Woods
 Woods sued for sexual harassment
 Jury awarded Woods $200,000 in
compensatory damages and $250,000 in
punitive damages
27

EEOC (cont.)
 Fifth Circuit Court of Appeals reversed:
– No evidence of homosexual attraction or
hostility
– No evidence of Woods not conforming to
male stereotype—despite supervisor‘s words
– Supervisor testified he ―did not view Woods
as feminine‖
– Therefore no harassment based on gender
stereotyping or non-conformity
28

Thank you
 W. Mark Gavre
direct: (801) 536-6834
email: mgavre@parsonsbehle.com

29

Employment Discrimination and Sexual Orientation - New Developments

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