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Progression in images of iconic athlete coincides with progression of employment law

June 2nd, 2015  |  Cynthia L. Hackerott

As a child in my early years of elementary school, cereal was the usual breakfast provided to my younger brother and me by our single parent father in our Northeast Kansas home. Cereal boxes were a big deal to kids back then; indeed, to our great joy, our father purchased costumes so that my brother and I could go trick-or-treating as the General Mills “Monster Cereal” characters “Franken Berry” and “Boo Berry,” respectively, one Halloween. Among the many cereal boxes of that mid-to-late 1970s era, I remember the images of (then) Bruce Jenner on the front of Wheaties (another General Mills cereal) boxes following his much celebrated 1976 Olympic Decathlon victory. I think of those cereal box images now as new images of Jenner emerge in another high-profile release. Yesterday (June 1, 2015), Jenner revealed her identity as “Caitlyn,” along with a new Twitter account and photos which will be featured in the cover story of an upcoming issue of “Vanity Fair” magazine.

The Kardashian publicity machine aside, Jenner’s gender identity revelation is big news in its own right. While some only know Jenner from reality television, others may remember those Wheaties boxes and think about the progression not only of our culture, but of our laws. Coincidently, new regulations and guidance from federal agencies regarding gender identity in the workplace have been implemented temporally alongside the recent developments in Jenner’s public life.

OSHA guidance on restroom access. On the same day Jenner announced her identity as Caitlyn, OSHA announced its publication of a guide for employers on best practices regarding restroom access for transgender workers. OSHA’s sanitation standard requires that all employers under its jurisdiction provide employees with sanitary and available toilet facilities, so that employees will not suffer the adverse health effects that can result if toilets are not available when employees need them. The guide notes that “[r]estricting employees to using only restrooms that are not consistent with their gender identity, or segregating them from other workers by requiring them to use gender-neutral or other specific restrooms, singles those employees out and may make them fear for their physical safety. Bathroom restrictions can result in employees avoiding using restrooms entirely while at work, which can lead to potentially serious physical injury or illness.”

OFCCP rules prohibiting discrimination. Only weeks ago, on April 8, 2015, the first ever federal regulations protecting workers from discrimination by private employers – albeit only those employers that are covered federal contractors and subcontractors – on the basis of sexual orientation and gender identity took effect. On April 24 – just over two weeks later – ABC aired Diane Sawyer’s groundbreaking interview with Jenner, who was then still publicly going by “Bruce.”

These regulations, which revise existing rules enforced by the OFCCP and were published in the Federal Register on December 9, 2014 (79 FR 72985-72995), apply to federal contractors who hold contracts entered into or modified on or after their effective date of April 8, 2015. They enforce Executive Order (EO) 11246, as amended, which prohibits covered federal contractors and subcontractors from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. Sexual orientation and gender identity were expressly added to the categories protected from discrimination under EO 11246 on July 21, 2014, when President Obama signed EO 13672. In addition, EO 13672 amended the existing EO 11478 to ensure that federal employees, who were already protected on the basis of sexual orientation, are now formally protected from discrimination based on gender identity as well.

Law progressing along with change in attitudes. No doubt, had Jenner revealed her gender identity immediately after the Decathlon triumph, she would have faced far more negativity than she is experiencing today. Jenner’s gender identity reveal has been met with a generally positive reception that would have been inconceivable to many, if not most, of those viewing the Wheaties boxes back in the mid-to-late 70s. Roughly four hours after she launched her Twitter account, she became the fastest Twitter user ever to reach one million followers, beating the five-hour record set by President Obama only two weeks earlier (May 18). Later that day, ESPN announced that Jenner is slated to receive its Arthur Ashe Courage Award at the televised ESPYs ceremony next month (July 15, 2015).

A few days after the Sawyer interview aired, General Mills voiced its support for Jenner, and the company reiterated this sentiment in a June 2, 2015 ABC news report, which quotes a GM spokesperson as saying: “Bruce Jenner has been a respected member of Team Wheaties, and Caitlyn Jenner will continue to be.” There are even calls to put Jenner back on the Wheaties box as she appears today.

Still, Jenner’s gender identity expression has met a measure of resistance, with some refusing to refer to Jenner by female pronouns or by her newly disclosed name. In a similar vein, legal protections for workers in the United States against discrimination based on gender identity and sexual orientation are not currently comprehensive.

Patchwork coverage of legal protections. When Jenner appeared on Wheaties boxes in the 1970s, courts were just beginning to flesh out and otherwise interpret the protections against sex discrimination in the workplace afforded by Title VII of the 1964 Civil Rights Act, which covers all but the smallest of private employers. It wasn’t until 1989 that the U.S. Supreme Court ruled, in Price Waterhouse v Hopkins (49 EPD ¶38,936), that discrimination based on gender stereotyping (i.e. failing to act and appear according to expectations defined by gender) could constitute a violation of Title VII.

In its landmark April 20, 2012 ruling in Macy v Holder (CCH Employment Practices Guide ¶6881), the EEOC – citing the court precedents of Price Waterhouse and its progeny which held that Title VII’s prohibition against discrimination based on “sex” extends to claims for sex stereotyping, as well any other claim asserting that gender was taken into account – ruled that transgender workers are protected under Title VII even though Title VII does not expressly cover gender identity. With the amendments made by EO 13672, both EO 11246 and EO 11478, unlike Title VII, now expressly cover sexual orientation and gender identity, but as noted earlier, those protections only extend to government employees and employees of covered federal contractors. In an April 16, 2015 OFCCP directive addressing the processing of sexual orientation and gender identity discrimination complaints, the OFCCP notes that the “EEOC and private litigants continue to develop sex discrimination theory” under Title VII. To date, there has been no U.S. Supreme Court ruling addressing the EEOC’s interpretation, set forth in Macy, of Title VII as to the extent of coverage afforded to transgender workers by the sex stereotyping theory.

When signing EO 13672 in July 2014, President Obama noted that “18 states have already banned workplace discrimination based on sexual orientation and gender identity. And over 200 cities and localities have done the same.” However, there is no federal law that expressly prohibits private employers who are not covered federal contractors or subcontractors from discriminating against workers on the basis of sexual orientation or gender identity. Various incarnations of the Employment Non-Discrimination Act (ENDA), a bill that would bar employment discrimination based on actual or perceived sexual orientation or gender identity, have been pending in Congress for the past four decades to no avail. Thus, in a majority of states, workers may still be legally fired, or subject to other adverse employment actions, based on their gender identity or sexual orientation.

Further, state laws on bathroom access for transgender workers vary. The OSHA guide details state laws which support the principle that employees should be allowed to use the restrooms that correspond to their gender identity.  In contrast, laws are currently pending in some states that would require individuals to use the bathroom facilities that correspond to the sex listed on their birth certificates.

Images mark milestones. Like many of the other Wheaties boxes featuring famous athletes, Jenner’s Wheaties box images became iconic. The Vanity Fair images of Jenner, as arguably the most high-profile transgender reveal to date, will likely become iconic as well (if that isn’t already the case). Both mark milestones not only in the life of one person, but in our culture and law as well. How the increasing awareness of transgender individuals in the public sphere, and corresponding shift in attitudes, will impact laws governing the workplace remains to be seen. In any event, Jenner’s legacy will now be one of not only a monumental triumph in the athletic field, but also of a key public figure in the development of our culture’s view of transgender individuals.