The Department of Fair Employment and Housing (DFEH) recently released a brief, nine-page guide for California employers, which was prepared in conjunction with the California Sexual Harassment Task Force.  This guide is intended to assist employers in developing an effective anti-harassment program, including information about how to properly investigate reports of harassment and understand what recourse is available.  The guide addresses all forms of workplace harassment, including harassment based on sex.

Specifically, the guide provides employers with information regarding the particular components for an effective anti-harassment program in the workplace. The DFEH also gives employers step-by-step guidance for how to properly handle harassment complaints and any resulting investigations.  The guide discusses topics such as confidentiality during the investigation, the timeliness of an investigation, and investigator qualifications and training.  In its discussion of proper investigations, the DFEH provides nine “credibility factors” which an investigator may utilize in making a determination. These factors include a party’s motive to lie, any history of dishonesty, the manner of testimony – including hesitant speech and indirect answers – and the party’s demeanor during the investigation.  The guide also addresses what employers should do in unusual situations, such as: what to do when the target of harassment asks an employer not to act, how to investigate anonymous complaints, and how to handle retaliation.  The DFEH emphasizes the employer’s legal obligation to prevent and correct unlawful harassing behavior, and provides information regarding remedial measures. While some of these tips may seem intuitive, this guide is a good refresher for even the savviest of employers.

In conjunction with the guide, the DFEH also released an easy-to-follow brochure and corresponding poster specifically addressing sexual harassment, which employers can provide to their employees, in compliance with California Government Code section 12950(b). The brochure and poster echo many of the same tips as the guide, but focus solely on sexual harassment.  The poster and brochure include an explanation of what constitutes sexual harassment, provide examples of harassing behavior that may occur in the workplace, detail the civil remedies for harassing conduct, and outline an employer’s responsibilities and liability when allegations of sexual harassment are made.

Employers should utilize these DFEH resources when investigating and responding to claims of harassment made in the workplace.

In a landmark decision, the U.S. Court of Appeals for the Seventh Circuit, sitting en banc, held that discrimination on the basis of sexual orientation is covered under Title VII of the Civil Rights Act’s protections against discrimination on the basis of sex.

In Hively v. Ivy Tech Community College of Indiana, Kimberly Hively, a lesbian part-time professor at Ivy Tech, applied for but was denied several full-time positions with the college. After her employment was later terminated, she filed a lawsuit alleging that she was denied promotion and then terminated because of her sexual orientation. The lower courts held that they were bound by Seventh Circuit precedent to rule that sexual orientation was not a protected category under Title VII. On July 28, 2016, a three-judge panel of the Seventh Circuit held that sexual orientation discrimination is not sex discrimination. The Seventh Circuit agreed to hear the case en banc with all 11 judges.

Deviating from almost every other circuit court, the Seventh Circuit voted 8-3 that discrimination on the basis of sexual orientation is a form of sex discrimination. In March, the Eleventh Circuit held in Evans v. Georgia Regional Hospital, et al. that it was bound by precedent that concluded that Title VII does not extend protections on the basis of sexual orientation. Later in the month, the Second Circuit reached a similar conclusion in Christiansen v. Omnicom Group, et al. While that court found that the plaintiff had no viable claim for sexual orientation discrimination, it remanded the case to the Southern District of New York to address whether the plaintiff’s claims could be considered sex stereotyping discrimination.

The court acknowledged that the three-member panel in 2016 “described the line between gender nonconformity claim and one based on sexual orientation as gossamer-thin;” the majority now concludes that such a line “does not exist at all.”

Citing to the Supreme Court’s decisions in Meritor Sav. Bank, FSB v. Vinson (sexual harassment is discrimination on the basis of sex), Price Waterhouse v. Hopkins (sex stereotyping is discrimination on the basis of sex), and Onacle v. Sundowner Offshore Servs., Inc. (same sex harassment is discrimination on the basis of sex), the court held that sex discrimination has been understood to “cover far more than the simple decision of an employer not to hire a woman for Job A or a man for Job B.”

The majority addressed Hively’s two legal theories – (1) the comparative method, whether a woman and a man would be treated differently under the same facts, and (2) the associational theory, whether discrimination occurs against an individual because of the protected characteristic of one with whom the individual associates. Under each theory, the court reduced each inquiry to a simple question – if the employee in question were male instead of female, would it matter that the employee was in a relationship with a woman? Answering that if the sex of a plaintiff such as Hively in a lesbian relationship was changed, then the outcome would be different, the Court held that discrimination on the basis of sexual orientation necessarily is discrimination on the basis of sex.

The court acknowledged the long-standing critique of the judiciary with respect to civil rights issues – that the court was attempting to “legislate from the bench.” Writing for the majority, Chief Judge Diane P. Wood wrote that the decision to “amend” Title VII to add sexual orientation as a new protected category “lies beyond our power.” She further wrote: “We must decide instead what it means to discriminate on the basis of sex, and in particular, whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex. This is a pure question of statutory interpretation and thus well within the judiciary’s competence.” In response to the dissent’s reliance upon legislative intent, the Court noted that the definition of sex discrimination has expanded in numerous ways since the passage of Title VII, and that the Congress that enacted Title VII likely would be surprised as to the extent of expansion.

In an expectedly colorful concurrence, Judge Posner acknowledged that the Court is, in fact, re-writing Title VII because society’s definition of “sex” has changed over the past 50 years. Instead of relying solely upon stereotyping claims, as the majority writes, Judge Posner instead recognized that the judiciary has long been interpreting statutory language in the context of society’s new and changing understanding of terms. And here, Posner writes, that we should not rely upon the 88th Congress’ “failure” to divine how society’s interpretation of the term would change. Rather, he writes: “We understand the words of Title VII differently not because we’re smarter than the statute’s framers and ratifiers but because we live in a different era, a different culture.”

With a Circuit split, the question of whether sexual orientation is a protected characteristic under Title VII is ripe for review by the Supreme Court, although this case likely will not be the vehicle. Ivy Tech has released a statement that it does not intend to appeal. The decision in this case, however, may affect the Eleventh Circuit’s decision to rehear the Evans case en banc. When this issue does reach the Supreme Court, the soon-to-be-confirmed Supreme Court justice Neil Gorsuch could render an impactful vote should this reach the highest court.

How will the Trump administration handle discrimination cases involving transgender employees? The EEOC’s pursuit of a sex discrimination claim on behalf of Aimee Stephens, a transgender woman who was terminated by a Michigan funeral home for expressing her intention to dress in conformance with her gender identity, will be an early indicator.

In a brief filed with the Sixth Circuit on January 26, 2017, Stephens argues that the interests of transgender individuals will not be adequately represented under the new administration. Under the Obama administration, the EEOC sued Stephens’ former employer, R.G. & G.R. Harris Funeral Homes, for sex discrimination on her behalf. The funeral home owner argued permitting Stephens to dress as a woman would conflict with his Christian beliefs and pose a threat to his free exercise of religion. The Eastern District of Michigan dismissed the EEOC’s lawsuit in August 2016 on the grounds that the funeral home is exempt from Title VII under the Religious Freedom Restoration Act (“RFRA”). Although the EEOC appealed to the Sixth Circuit in October 2016, Stephens filed a motion to intervene as plaintiff-appellant, citing her belief that the new administration would not adequately represent her interests.

Over the course of Obama’s presidency, the trend in federal government was the extension of protections for transgender individuals. Many federal agencies, including the EEOC, OFCCP, OSHA, and HHS, previously promulgated rules and guidance affording increased protections for transgender individuals. Numerous federal courts, including the First, Sixth, Ninth, and Eleventh circuits, have applied theories of sex stereotyping under Section 1983 or Title VII, resulting in protections for transgender individuals. Few courts, however, have found gender identity or transgender status is a protected class under Title VII. Indeed, the district court in G.R. & R.G. Funeral Homes rejected that position when presented by the EEOC.

Whether the EEOC will continue to aggressively pursue the expansion of Title VII to include transgender protections remains an open question. While still just a rumor, it has been reported that the Trump administration is considering an executive order that would provide individuals and organizations the ability to deny employment, as well as services and other benefits, to LGBT individuals on religious grounds. In her motion, Stephens references the removal of the White House webpage dedicated to LGBT rights, the federal government’s requests for extensions of time in other civil rights cases, and the President’s authority over EEOC appointments as reasons she believes her interests may not be adequately represented. Further, the current acting chair of the EEOC, Victoria Lipnic, was one of two commissioners who voted against the EEOC’s July 2015 decision that held that sexual orientation is included within the definition of sex for discrimination purposes under Title VII. The Trump administration also has rescinded guidance previously issued by the departments of Education and Justice under the Obama administration that took the position that the Title IX prohibitions of discrimination “on the basis of sex” require access to sex-segregated facilities based on gender identity.

On the other hand, the EEOC filed its opening brief with the Sixth Circuit just two weeks after Stephens moved to intervene, arguing that (a) discrimination based on transgender status and/or transitioning is inherently sex discrimination under Title VII; and (b) the RFRA does not provide the for-profit funeral home a defense in this case. This stance is consistent with that taken by the EEOC while Obama was in office. Further, Trump has indicated Executive Order 13672, which banned federal contractors from discriminating against LGBT employees, will stand.

Stephens’ case may have implications for the protection of transgender employees at the federal level, but employers need to keep in mind that many states explicitly prohibit discrimination against transgender workers. At least sixteen jurisdictions – including California, Illinois, Maryland, Massachusetts, New Jersey and the District of Columbia – now include gender identity as a protected characteristic under their discrimination laws.

Employers are advised to familiarize themselves with their state and local laws, to take a proactive role in preventing transgender, or gender identity, discrimination in the workplace, and to have a plan in place to accommodate the potential needs of transgender workers.

On February 15, 2017, Mayor Muriel Bowser signed the “Fair Credit in Employment Amendment Act of 2016” (“Act”) (D.C. Act A21-0673) previously passed by the D.C. Council. The Act amends the Human Rights Act of 1977 to add “credit information” as a trait protected from discrimination and makes it a discriminatory practice for most employers to directly or indirectly require, request, suggest, or cause an employee (prospective or current) to submit credit information, or use, accept, refer to, or inquire into an employee’s credit information. As discussed in our earlier advisory, the Act will take effect following a 30-day period of congressional review per the District of Columbia Home Rule Act, and publication in the D.C. Register, and shall apply upon inclusion of its fiscal effect in an approved budget and financial plan. The latter may not occur until this summer

Kyler Prescott was a 14 year old transgender boy who was receiving puberty-delaying medication to help him transition.  Shortly before Kyler’s death he had “suicidal ideation” and was taken to Rady Children’s Hospital – San Diego in April 2015.  The hospital has a Gender Management Clinic to provide services to children with gender dysphoria and related issues.  A lawsuit under the ACA’s non-discrimination provision, § 1557, alleges that after admission, despite assurances that he would be referred to with masculine pronouns, hospital employees referred to Kyler as a girl.  The suit claims that the hospital’s actions discriminated against Prescott “resulting in his inability to access necessary services and treatment during a dire medical crisis.” The federal lawsuit, filed in the Southern District of California, further alleges that the use of female references exacerbated his condition and that he thereafter had further difficulties and ultimately committed suicide.

As discussed in our recent October 6, 2016 webinar and in our Client Advisory, HHS’s Office of Civil Rights (“OCR”) final § 1557 regulations explicitly include coverage for gender identity and sexual stereotypes.  They also state that covered entities must “treat individuals consistent with their gender identity . . . .” 45 C.F.R. § 92.206.  This lawsuit appears to be one of the first under § 1557 for gender identity discrimination.  It will surely not be the last.

The suit focuses on claims that nurses and other staff repeatedly used feminine pronouns in referring to Kyler despite assertions in the court pleadings of multiple calls by his mother to the hospital to explain his distress at this alleged conduct.  Hospital staff failed to use Kyler’s preferred pronouns despite hospital records showing Kyler’s legal name and gender change from female to male, according to the suit.

The results of the lawsuit, which at this time are only unproven allegations, will await further court proceedings. What the suit clearly shows, however, is that compliance with § 1557’s notice and policy requirements, effective October 16, was only the beginning of § 1557 compliance needs for covered health care entities.  Among the necessary next steps in compliance with which we are assisting clients are developing appropriate training of all staff interacting with patients and companions on the requirements of § 1557 in providing services, proper categorization of gender in health care records and in-patient references, as well as the need for training and visibility on provider non-discrimination and grievance policies.  This lawsuit dramatically emphasizes the urgency for continuing efforts to achieve full compliance with § 1557 and the OCR final regulations to avoid § 1557 discrimination claims on the expansive grounds covered by § 1557 as interpreted in OCR’s final regulations.

Our colleague Linda B. Celauro, Senior Counsel at Epstein Becker Green, has a post on the Financial Services Employment Law blog that will be of interest to many of our readers in the health care industry: “Seventh Circuit Panel Finds That Title VII Does Not Cover Sexual Orientation Bias.

Following is an excerpt:

Bound by precedent, on July 28, 2016, a panel of the U.S. Court of Appeals for the Seventh Circuit held that sexual orientation discrimination is not sex discrimination under Title VII of the Civil Rights Act of 1964. The panel thereby affirmed the decision of the U.S. District Court for the Northern District of Indiana dismissing the claim of Kimberly Hively, a part-time adjunct professor at Ivy Tech Community College, that she was denied the opportunity for full-time employment on the basis of her sexual orientation.

The importance of the Seventh Circuit panel’s opinion is not in its precise holding but both (i) the in-depth discussion of Seventh Circuit precedence binding it, the decisions of all of the U.S. Courts of Appeals (except the Eleventh Circuit) that have held similarly, and Congress’s repeated rejection of legislation that would have extended Title VII’s protections to sexual orientation, and (ii) the multifaceted bases for its entreaties to the U.S. Supreme Court and the Congress to extend Title VII’s prohibition against sex discrimination to sexual orientation discrimination.

The Seventh Circuit panel highlighted the following reasons as to why the Supreme Court or Congress must consider extending Title VII’s protections to sexual orientation …

Read the full post here.

The District of Columbia Office of Human Rights recently partnered with the National LGBTQ Task Force to publish a resource guide, “Valuing Transgender Applicants & Employees: A Best Practices Guide for Employers” (the “Guide”), designed to support employers in creating workplace and hiring policies that prevent discrimination against transgender and gender-nonconforming individuals. The guide is meant to lay the framework for building a culture of inclusion in the workplace that goes beyond legal obligations.

The suggested best practices include ensuring managers and coworkers use the names and pronouns preferred by transgender employees, maintaining the confidentiality of employees’ gender identity, implementing gender-neutral dress codes, providing access to restroom facilities corresponding to employees’ gender identity, and building an environment in which harassment or off-color comments are not tolerated.

The Guide emphasizes communication between employers and their transgender or gender-nonconforming employees and applicants so that the employer may understand what transgender employees believe a safe and inclusive workplace should look like and respond accordingly.  Recognizing that each individual has different needs, employers are encouraged to work with transitioning employees to develop a plan for them to transition in the workplace.  That said, transgender employees are not expected to shoulder the responsibility of educating coworkers or of ensuring their comfort.  Particularly because DC law prohibits discrimination based on gender identity or expression, employers should establish clear rules requiring professional demeanor, prohibiting transphobic and other harassing behavior, and prompting quick responses to any violations.

Following DC regulations, the Guide also instructs employers to provide access to restrooms and other gender-specific facilities consistent with employees’ gender identity or expression. Consistent with guidance from the EEOC and OSHA, transgender employees should never be required to use a separate gender-neutral facility – even if a cisgender employee expresses discomfort about sharing a gendered facility with a transgendered coworker.  In that case, the cisgender employee should be offered the use of a separate facility.

While the Guide has particular applicability for employers that operate in the District of Columbia, all employers should take note, as the recommended best practices are consistent with the way federal agencies are interpreting and enforcing federal law.