shutterstock_633954278In a departure from the recently developing law, a federal court judge from the Eastern District of Pennsylvania ruled that the Americans with Disabilities Act (“ADA”) may cover gender dysphoria, and other conditions related to gender identity disorder – opening the door to expanding employment protections to some transgender individuals under the ADA.

In Blatt v. Cabela’s Retail, Inc., a transgender woman filed Title VII and ADA claims against her former employer claiming that she had suffered disability discrimination and retaliation based on her gender dysphoria. The plaintiff alleged that her gender dysphoria was characterized by clinically significant stress and substantially limited one or more of her major life activities, including but not limited to, interacting with others, reproducing, and social and occupational functions. The employer sought dismissal of the ADA claims on the grounds that gender identity disorders are expressly excluded from coverage under Section 12211 of the ADA. In response, the plaintiff argued that the ADA’s exclusion of gender identity disorders violated her equal protection rights under the Constitution.

What makes this case unique, and its holding potentially narrow, is its reliance on the legal “constitutional-avoidance canon” which, if possible, requires the court to interpret a statute in a way that avoids any constitutional questions raised by the plaintiff. Here, the court interpreted the ADA to allow plaintiff to proceed with her disability discrimination claim because “this interpretation allows the Court to avoid the constitutional questions raised” by the plaintiff.

In reaching its holding, the court noted that two categories of conditions are explicitly excluded from protection under the ADA: non-disabling conditions concerning sexual orientation and identity (e.g., homosexuality and bisexuality), and conditions associated with harmful or illegal conduct (e.g., pedophilia and kleptomania). The court narrowly interpreted these exceptions and found that the ADA does not exclude protection of “conditions that are actually disabling but that are not associated with harmful or illegal conduct” – such as the gender dysphoria affecting the plaintiff. This line of reasoning in many ways mimics how the ADA approaches pregnancy: while the ADA does not cover ordinary pregnancies, complications arising from the pregnancy can trigger ADA protection.

The court also noted that this interpretation is consistent with the Third Circuit’s mandate that the ADA is “a remedial statute, designed to eliminate discrimination against the disabled in all facets of society. . . [and] must be broadly construed to effectuate its purposes.” Thus, the judge wrote, any exceptions in the ADA “should be read narrowly in order to permit the statute to achieve a broad reach.” As such, the Court denied the employer’s motion to dismiss.

This is yet another case in a recent wave of litigation concerning protections for LGBT individuals under the federal employment statutes, including Title VII. This ADA challenge represents a different approach to gender equity litigation that will warrant close monitoring to see how it impacts the development of jurisprudence – particularly since it is possible that the court may not have ever engaged in this exercise had the plaintiff had not raised a constitutional argument. In the meantime, employers should be mindful of their duties under the ADA to accommodate disabling impairments, even if the underlying condition is arguably not covered by the ADA.

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.

With flu season quickly approaching, health care employers may be considering mandatory influenza vaccinations for their workforce. Mandatory vaccination policies may dramatically increase patient safety, but they may also cause friction within the workforce when employees object on religious grounds to being vaccinated.

While no federal and few state statutes address the legality of enforcing mandatory vaccination policies, the EEOC and private litigants recently have moved this issue forward in the courts. Under Title VII of the Civil Rights Act of 1964 (“Title VII”), employees with sincerely held religious beliefs are entitled to a reasonable accommodation of those beliefs, provided that such accommodation does not create an undue hardship for their employer. This year, the EEOC has filed at least three separate lawsuits against hospitals in Pennsylvania, Massachusetts, and North Carolina alleging failure to accommodate religious beliefs in relation to such hospitals’ respective mandatory influenza vaccination policies.[1]

These lawsuits follow shortly on the heels of a decision in the District Court of Massachusetts, granting summary judgment in favor of a hospital employer that terminated an employee who refused a mandatory flu vaccination because of her religious beliefs. In Robinson v. Children’s Hospital Boston, Civ. No. 14-10263 (D. Mass. Apr. 5, 2016), the defendant hospital implemented a policy requiring all persons who worked in or accessed patient care areas to be vaccinated against the flu to ensure the safest possible environment and highest possible care for its patients.

The plaintiff, one of the first hospital employees to interact with patients as they entered the emergency room, refused the flu vaccination for religious reasons and was permitted by the hospital to explore whether there was another internal position outside of patient care that would exempt her from the flu vaccine. The court concluded that the hospital’s efforts to locate another position for the plaintiff—including allowing her to use earned time off to search for employment elsewhere—and to label her termination a voluntary resignation to preserve her ability to re-apply for other hospital positions in the future, constituted a reasonable accommodation under Title VII.

The court also concluded that granting the plaintiff’s request not to be vaccinated would have caused the hospital an undue hardship because it would have increased the risk of transmitting influenza to the hospital’s already vulnerable patient population. The admissible evidence led the court to find that (i) health care employees are at a high risk for influenza exposure, which can be fatal to vulnerable patients; (ii) numerous medical organizations support mandatory influenza vaccination for health care workers; and (iii) the medical evidence in the record demonstrated that a vaccination is the single most effective way to prevent the transmission of the flu.

While the hospital’s policy in Robinson only covered patient-facing employees, health care employers with flu vaccination policies impacting all employees should be aware that they will be subject to heightened scrutiny by regulators such as the EEOC. For instance, in EEOC v. Baystate Medical Inc., Civ. No. 3:16-cv-30086 (D. Mass. June 2, 2016), Baystate’s policy required employees who refused the flu vaccination to wear a surgical mask at all times while working at the hospital’s facilities. The employee in question worked in human resources, had no patient contact, and argued that it was not reasonable for her to wear the mask because people complained that they could not understand what she was saying. Following several occasions in which the employee pulled the mask down away from her mouth so that people could understand her, the plaintiff was discharged for violating Baystate’s policy. While the facts have yet to be developed, these allegations were sufficient to prompt the EEOC to file suit.

Other courts addressing religious discrimination claims in this context also have indicated the importance of the employee’s interaction with patients in determining whether and to what extent a mandatory vaccination policy may be enforced. In Chenzira v. Cincinnati Children’s Hosp. Med. Ctr., Civ. No. 1:11-cv-00917 (S.D. Ohio Dec. 27, 2012), the plaintiff-employee alleged that her adherence to veganism prohibited her from receiving a flu shot. On a motion to dismiss, the court allowed a religious discrimination claim to proceed, finding that the plaintiff could subscribe to veganism with a sincerity equating to that of sincerely held religious views. Notably, the court made a point of stating that the decision did not address the safety of patients at the hospital, which was the hospital’s presumed justification for terminating the plaintiff. The court signaled that it would consider this justification in light of what, if any, contact the plaintiff had with patients, and/or what sort of risk her refusal to receive a vaccination could pose in the context of her employment. (The case later settled.)

Employers looking for additional guidance as to whether and to what extent they must accommodate an employee’s refusal be vaccinated against seasonal influenza also should look to any state or local laws that may impact their ability to mandate flu vaccinations. For instance, a New York statute requires people to be vaccinated if they are affiliated with or employed by a health care facility and who engage in activities that could potentially expose patients to influenza.[2] Those who decline the flu shot during flu season must wear a surgical mask while in areas where patients are normally present. The statute also requires health care facilities to supply such masks to personnel free of charge.

Takeaways

Particularly given the implications to patient safety, health care employers are well within their rights to implement a mandatory flu vaccination policy. Nonetheless, employers should be prepared to address requests for reasonable accommodation made by employees who decline a vaccination because of sincerely held religious beliefs. In those circumstances, employers should engage in the interactive process, with the following considerations in mind:

  • Consider the nature of the employee’s position, as you may have more difficulty in enforcing the policy against employees who do not routinely interact with patients. Courts are more likely to require an alternative accommodation for employees in non-patient-facing roles.
  • Determine whether the employee can be accommodated by wearing a surgical mask or by temporarily or permanently transferring that employee to another position that does not implicate patient safety.
  • Ensure that any refusal to be vaccinated originates from a sincerely held religious belief, but be aware that challenges to a sincerely held belief have been heavily scrutinized by the courts.

A version of this article originally appeared in the Take 5 newsletter Five Key Issues Impacting Health Care Employers.”

[1] EEOC v. St. Vincent Health Ctr., No. 16-224 (W.D. Pa. Sept. 22, 2016); EEOC v. Baystate Med. Ctr., Inc., No. 3:16-cv-30086 (D. Mass. June 6, 2016); EEOC v. Mission Hosp., Inc., No. 1:16-CV-00118 (W.D.N.C. Apr. 28, 2016).

[2] New York State Sanitary Code, 10 N.Y.C.R.R. § 2.59.

On November 4, 2016, the Western District of Pennsylvania held that the “because of sex” provision in Title VII of the Civil Rights Act prohibits discrimination on the basis of sexual orientation. In doing so, the court broke from the recent trend of federal courts that have felt compelled by prior precedent to dismiss sexual orientation discrimination claims.

In EEOC v. Scott Medical Health Center, P.C., the plaintiff (a gay male) alleged that he was subjected to repeated and unwelcome offensive comments regarding his sexual orientation and his relationship with a male partner, creating a hostile and offensive work environment that resulted in the plaintiff’s constructive discharge.  Relying on the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which held that discrimination on the basis of sex stereotyping is prohibited, the court concluded that “discrimination on the basis of sexual orientation is, at its very core, sex stereotyping plain and simple; there is no line separating the two.”

This conclusion contradicts recent decisions in the Seventh Circuit and Southern District of New York, both of which have held that gender discrimination can be “disentangled” from sexual orientation discrimination, and have dismissed claims premised solely on sexual orientation discrimination allegations.  The Western District of Pennsylvania’s departure from prior precedent could signal the beginning of a split in authority that could eventually end up with this issue being considered by the Supreme Court.

This area of law is ripe for further litigation. In the short term, employers should continue to monitor the changing legal landscape and be mindful that other courts could also conclude the discrimination based on sexual orientation is prohibited under Title VII, as well as anti-discrimination provisions in other laws and regulations, such as Executive Order 13672 expressly barring federal contractors from discriminating on the basis of sexual orientation or gender identity.  Regardless of the federal court pronouncements, employers should be aware that various federal agencies are taking the same expansive view of the definition of discrimination on the basis of “sex.”  In the Final Rule implementing Section 1557 of the Affordable Care Act, for example, the Department of Health and Human Services expressly defines discrimination on the basis of sex to include sex stereotyping (and gender identity). Numerous states also expressly prohibit sexual orientation discrimination under their employment law.  Thus, employers seeking to comply with applicable state law and seeking to avoid scrutiny from the EEOC and other federal agencies should train their workforce to eliminate discriminatory or harassing behavior premised on sexual orientation, and review their policies to ensure that such discrimination is prohibited.

On August 29, 2016, the EEOC issued its final Enforcement Guidance on Retaliation and Related Issues (Guidance) to replace its 1998 Compliance Manual section on retaliation, including tips on ADA interference. The Guidance reflects the Commission’s consideration of feedback received on the proposal from about 60 organizations and individuals following a 30-day public input period that ended February 24, 2016. The changes in the Guidance are in line with the EEOC’s efforts to broaden the conduct that would be deemed retaliatory as well as the concept of causation.

Along with the Guidance, the EEOC has issued two accompanying documents: a question-and-answer publication that summarizes the Guidance, and a short Small Business Fact Sheet that condenses the major points in the Guidance. The Guidance also provides “boxed” examples of actual and perceived retaliation that will be of great help to employers and employees.

The Guidance addresses retaliation under each of the statutes enforced by EEOC, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA) and Title II of the Genetic Information Nondiscrimination Act (GINA).

Since 1998, the last time the EEOC issued a formal resource document on retaliation, the Supreme Court and the lower courts have issued numerous significant rulings regarding employment-related retaliation. Further, the percentage of EEOC charges alleging retaliation has essentially doubled (now nearly 45% of all charges). Retaliation is now the most frequently alleged basis of discrimination in all sectors, including the federal government workforce.

The guidance also addresses the interference provision under the Americans with Disabilities Act (ADA), which prohibits coercion, threats, or other acts that interfere with the exercise of ADA rights. The EEOC considers the scope of this separate interference provision broader than the anti-retaliation provision under the ADA.

In preparing the Guidance, the Commission analyzed courts’ interpretation and application of the law to specific facts, noting that, regarding many retaliation issues, the lower courts have been uniform in their interpretations of the relevant statutes. Where the Commission agreed with those interpretations, the Guidance explains the law on such issues with concrete examples. The Commission noted that there are cases where the lower courts have not consistently applied the law, or the EEOC’s interpretation of the law differs. In those instances, the Guidance sets forth the EEOC’s position and explains its analysis.

Elements of a Claim. The Guidance does not change the three well-established elements of a retaliation claim and leaves little doubt that the EEOC takes a broad view when defining each element:

  1. An employee’s participation in a protected activity, generally a complaint of discrimination or harassment.
  2. A materially adverse action taken by the employer/manager against the employee.
  3. A causal connection between the protected activity and adverse action.

The small business fact sheet provides a list of actions taken by applicants and employees that are protected from retaliation:

  • taking part in an internal or external investigation of employment discrimination, including harassment;
  • filing or being a witness in a charge, complaint, or lawsuit alleging discrimination;
  • communicating with a supervisor or manager about employment discrimination, including harassment;
  • answering questions during an employer investigation of alleged harassment;
  • refusing to follow orders that would result in discrimination;
  • resisting sexual advances, or intervening to protect others;
  • reporting an instance of harassment to a supervisor;
  • requesting accommodation of a disability or for a religious practice; or
  • asking managers or coworkers about salary information to uncover potentially discriminatory wages.

Protected Activity. In the Commission’s view, playing any role in an internal investigation (even in support of the employer) should be deemed to constitute protected participation. For example, an employee can issue a direct complaint (“participation”) or engage in “protected opposition” by communicating explicitly or implicitly opposition to perceived employment discrimination. According to the EEOC, an employee may make a broad or ambiguous complaint of unfair treatment because they may not know the specific requirements of the anti-discrimination laws and such communication would be considered protected opposition if the complaint would reasonably have been interpreted as opposition to employment discrimination.

While the Guidance states that the manner of opposition must be reasonable, the Guidance points out that the scope of the opposition clause is not limited to complaints made to the employer directly, and may include complaints made to coworkers, an attorney, others outside the company, or even publicly. According to the EEOC, employees’ complaints or opposition activities will be protected as long as their actions are based on reasonable, good faith that their assertions are accurate. Nonetheless, opposition to perceive discrimination “does not serve as a license for the employee to neglect job duties.”

Adverse Action. The Guidance seeks to expand the definition of “adverse action” to include activity that could be reasonably likely to deter protected activity even if it has no tangible effect on a person’s employment. According to the EEOC, adverse actions can be activities that are not work-related, or take place outside of work, and may even be taken against a third party who is closely linked to a complaining employee.

Causal Connection. The Guidance also expands what constitutes a causal connection between a protected activity and adverse action. Under the Commission’s interpretation of the “but-for” causation standard articulated in University of Texas Southwest Medical Center v. Nassar, that there can be multiple “but-for” causes, and retaliation need only be one of those but-for causes in order for the employee to prevail. Moreover, citing a Seventh Circuit decision (Ortiz v. Werner Enters., Inc.), the Guidance notes that causal connection may be established by combining different pieces of circumstantial evidence into a “convincing mosaic” showing retaliatory intent. Citing a decision where a termination that occurred five years after an employee filed a discrimination lawsuit defeated summary judgment, the Commission noted that it may go years back into a person’s employment history to find evidence of either a protected activity or an adverse action.

Guidance for Employers. The Commission includes a section in the Guidance on “promising practices” that it suggests may help reduce the risk of retaliation violations. While adhering to these practices is not a safe harbor, employers should take note of the list provided by the EEOC:

  • Including clear anti-retaliation language in written employment policies that provide practical guidance on what retaliation is and how it is avoided, with examples of conduct that managers, supervisors, and decision makers may not realize are actionable;
  • Taking proactive steps for avoiding actual or perceived retaliation, including practical guidance on interactions by managers and supervisors with employees who have lodged discrimination allegations against them;
  • Instituting a reporting mechanism for employee concerns about retaliation, including access to a mechanism for informal resolution; and
  • Providing a clear explanation to employees that retaliation can be subject to discipline, up to and including termination;
  • Providing all parties and witnesses to an alleged act of discrimination with information about how to avoid engaging in retaliation, and how to report alleged retaliation; and
  • Ensuring that someone with special knowledge of EEO guidance reviews proposed employment actions to ensure they are based on legitimate, non-discriminatory, non-retaliatory reasons.

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.

Nathaniel M. Glasser
Nathaniel M. Glasser

North Carolina made waves last week by enacting legislation prohibiting cities from allowing transgender individuals to use public restrooms that match their gender identity and further restricting cities from passing anti-discrimination ordinances that would give protected status to sexual orientation or gender identity.

Employers in North Carolina and across the country, however, should be aware of the trend in the federal courts and agencies to grant protections to transgender workers under Title VII of the Civil Rights Act.  Last week two federal courts allowed transgender plaintiffs to proceed with their gender discrimination claims, representative of the growing acceptance of sex stereotyping or gender nonconformity theories under these circumstances.

In Fabian v. Hospital of Central Connecticut, No. 3:12-cv-01154 (D. Conn. Mar. 18, 2016), the District of Connecticut denied summary judgment to a hospital on a surgeon’s sex bias claims.  The surgeon alleged that the hospital failed to hire her after learning of her plan to transition from male to female.  Tracing the history of transgender claims under Title VII, Judge Underwood, a well-respected jurist in the district, noted that although most early cases considering the issue held that Title VII does not protect transgender individuals, courts more recently have allowed such claims to proceed on a theory that the term “sex” in Title VII refers to discrimination based on factors related to or having something to do with sex.

The District of Arizona reached a similar conclusion in Doe v. Arizona, No. 2:15-cv-02399 (D. Ariz. Mar. 21, 2016).  In that case, a male transgender correctional officer alleged he was not safe at work because his coworkers, who referred to him as “he/she” or “it,” would not respond to his emergency calls.  The court denied Arizona’s motion to dismiss, finding that the plaintiff’s allegation of transgender status satisfied the “protected status” element of a gender discrimination claim under Title VII.  (While not the subject of this post, this case also has important implications regarding failure to exhaust administrative remedies for retaliation claims.)

These courts join a number of federal courts – including the First, Sixth, Ninth, and Eleventh Circuits –that have extended protections to transgender individuals under the sex discrimination provisions of Title VII or Section 1983.  Federal agencies also have expressed their intent to enforce protections for transgender workers.  For instance:

  • The EEOC interprets Title VII as prohibiting discrimination based on gender identity, a position asserted against a Florida-based organization of health care professionals, resulting in a consent decree in 2015, and against a Michigan funeral home in a lawsuit surviving a motion to dismiss.
  • Pursuant to Executive Order 13672, federal contractors are now prohibited from discriminating on the basis of gender identity, and OFCCP has issued amended regulations incorporating this prohibition.
  • OSHA has issued a guide advising that transgender employees should be permitted access to restrooms and locker rooms consistent with their gender identity.
  • Regarding the implementation of Section 1557 of the Affordable Care Act, the Department of Health and Human Services has issued a Notice of Proposed Rulemaking, which would incorporate discrimination on the basis of gender identity into the definition of “on the basis of sex.”

Thus, even if North Carolina’s law survives the recent legal challenge in court, employers should be aware that federal law may still grant protections to transgender workers.  Indeed, in January 2015, the Eastern District of North Carolina denied a hospital’s motion to dismiss a claim of sex discrimination brought by a certified nursing assistant alleging she was denied a position based on her transgendered status.

Additionally, regardless of the viability of a claim for transgender discrimination under federal law, at least sixteen states – 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 outside of North Carolina should know whether state or local law provides similar protections.

Employers are advised 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.

Our colleague Julie Saker Schlegel at Epstein Becker Green recently posted “Supreme Court Holds That Only Employees Who Have Authority to Take Tangible Employment Actions Constitute Supervisors for the Purpose of Vicarious Liability Under Title VII” on the Retail Labor and Employment Law blog, and we think health industry employers will be interested.

Following is an excerpt:

In a 5-4 decision the dissent termed “decidedly employer-friendly,” the Supreme Court held on June 24, 2013 that only employees who have been empowered by the employer to take tangible employment actions against a harassment victim constitute “supervisors” for the purpose of vicarious liability under Title VII. Per the holding in Vance v. Ball State University, employees who merely direct the work activities of others, but who lack the authority to take tangible employment actions, will no longer be considered supervisors under Title VII.

Under long-standing precedent (Faragher and Ellerth), whether an employer can be found vicariously liable for harassment perpetrated by its employees is dependent on whether the harasser is a supervisor or merely a co-worker of the victim …

Read the full post here.