The “not-so-top” ten
December 31st, 2011 | Lisa Milam-Perez | 1 Comment
The Supreme Court turned up its nose at state bans on class-action waivers in arbitration agreements, and then felled a mighty class action discrimination suit against an even mightier employer. And the NLRB “went rogue,” in the eyes of management attorneys and Congressional Republicans. These Big News Stories have surely earned their standing on all of the year-in-review and “top ten” lists, and the extensive coverage that Employment Law Daily afforded them.
But for my last glance at the passing year, I looked back at some of the smaller stories that were crowded out—the trends, the tragedies, the downright truculence—that make labor and employment law the compelling human interest story that it is, year in and year out. Here, some “not-so-top,” not-quite ten stories that gave 2011 its flavor:
1. Guess the next employer who pays out unemployment benefits!
Announcing that he was beefing up “secret shopper” visits in an effort to catch cashiers behaving badly, the owner of a chain of Iowa convenience stores sponsored a “Guess the Next Cashier Who Will Be Fired!” contest, inviting employees to place their bets on which of their coworkers was next to be shown the height-chart adorned door. “To win our game, write on a piece of paper the name of the next cashier you believe will be fired. Seal it in an envelope and give it to the manager. If the name in your envelope has the right answer, you will win $10 CASH. Only one winner per firing unless there are multiple right answers with the exact same name, date, and time. Once we fire the person, we will open all the envelopes, award the prize, and start the contest again. And no fair picking Mike Miller from (the Rockingham Road store. He was fired at around 11:30 a.m. today for wearing a hat and talking on his cell phone. Good luck!!!!!!!!!!”
“This guy was the boss from hell” who “treated pretty much all of us like dirt,” one reluctant contestant told USA Today. She and her store manager (and a few other employees) quit when they realized the memo wasn’t a joke. “It was very degrading,” she said. An Iowa law judge agreed, calling the contest “egregious and deplorable.” Although the boss insisted the employee had quit voluntarily, the law judge concluded that the owner had created a hostile work environment that made work conditions intolerable, justifying the employee’s departure and an award of unemployment benefits. (No word, though, on how poor Mike Miller fared.)
2. A War on Thanksgiving?
Another unfortunate retail worker is still on the job, but found his hours cut sharply after he created an internet dust-up in protest of Target’s decision to make employees work on Thanksgiving to prepare for a midnight “Black Friday” opening. As the day-after-Thanksgiving mall rush has become an increasingly critical (and competitive) sales event, retail workers’ Thanksgiving celebrations (and “food coma” recovery time) have been cut ever shorter. This year, some workers pushed back. The employee’s initial online petition generated more than 37,000 signatures and more than 50 copycat petitions that, in all, drew 200,000 names in support.
3. That employee handbook might have saved him… if it were bound in Kevlar
A Walgreens pharmacist in Michigan was fired after he pulled a gun on two armed robbers who burst into the store and took an employee at gunpoint in a 4:30 am robbery attempt during the night shift. One of the gunmen leaped over the pharmacy counter, raised his weapon and attempted to shoot the pharmacist, who had been trying to call 911. When the pharmacist pulled out his own handgun and fired several shots, the robbers immediately fled the store. Five days later, Walgreens fired the pharmacist (who had secured a license to carry after a previous robbery at the store) for violating the company’s “non-escalation” policy, of which he was unaware. According to the pharmacist, he had repeatedly asked management to address security issues at the store, but those requests fell on deaf ears. His wrongful discharge lawsuit surely won’t.
4. Is the Choklit Shoppe off-limits too?
It’s a story that would make Mr. Weatherby blush. Archie Comic Publications Inc. filed a sexual harassment action against the company’s female co-CEO, who took over her share of the reins following the death of her husband, an heir to one of the Archie Comics creators. The employer sought a permanent injunction barring Nancy Silberkleit from entering its corporate offices, alleging that she made repeated threats to employees and used obscenities with abandon in the workplace. According to the complaint, Silberkleit barged into a corporate meeting, pointed to each of the four men in the room, shouted “PENIS” at each of them in sequence, then stormed out. She also made comments like she had to “adjust my [insert slang for testicles] because they are irritating me” and on one occasion instructed a new employee to “stand up and pull down your pants,” the complaint alleged. (An investigation carried out by an outside HR consultant elicited affidavits from nine employees attesting to the co-CEO’s inappropriate conduct and concluded with a recommendation that she be terminated immediately.)
Archie Comics filed a motion seeking an emergency order barring Silberkleit from working at the corporate offices or having any contact with the company’s employees or vendors. It also sought to enjoin her from attending Comic-Con, the industry’s annual trade show and geek center of the universe. A New York court refused to bar her from the premises, noting such a remedy was not available under the terms of her employment contract. But it did enjoin Silberkleit from “harassing, yelling at or abusing anyone at the Archie Comic Publications’ offices” or communicating with any employees other than the company’s other co-CEO. Undaunted, Silberkleit was threatened with contempt earlier this week for violating the court’s order when she showed up at the office with a former pro football player on her arm as a bodyguard and began yelling at employees. For her part, the defendant says the lawsuit is nothing but a “corporate power grab” and the allegations of harassment “rank hearsay.”
5. The devil was in the decal.
A north Georgia factory worker claimed he was fired for not wearing a symbol that he said represents the devil, alleging the employer violated his religious rights when he was forced to wear a sticker bearing the number 666. “The people that accept the mark, they’re going to burn in hell,” said Billy Hyatt, a devout Christian. “There’s no way that I’m going to put that on my body.”
Employees were required to wear stickers denoting the number of days the company had gone accident-free. With day 666 approaching, Hyatt asked to be excused from wearing the sticker. He even requested a vacation day so that he wouldn’t be on-site when coworkers wore the number. (To his credit, he didn’t think to feign a slip-and-fall to reset the count to “0.”) When the day came and he refused to wear the number, the boss told him his beliefs were “ridiculous,” that it was just a sticker, and that he was to wear it or face suspension. “Well it’s not just a sticker,” said Hyatt. “666 is the mark of the beast.” He was fired soon after, and then filed an EEOC complaint. Hyatt’s federal suit is currently pending.
In a similar case, an employee who refused to provide his social security number during a mandatory drug test was unable to establish that providing the required information would have violated a bona fide religious belief. The employee did not state at the time why he refused to provide his social security number. And vague references to “mark of the beast” were not enough to put a reasonable person on notice that he had a strongly held religious belief preventing him from using the number. (The fact that he put his social security number on his initial job application without protest, and also used it to obtain his driver’s license, didn’t help his case.)
6. Don’t forget “Sexual harassment-suit Saturday?”
At least you could credit his organizational skills. The company owner who was named as a defendant in a sexual harassment suit filed in a Utah federal court made out a weekly office schedule that entailed a dress code, including: “Mini-skirt Monday (no panties allowed),” “Tube-top Tuesday,” “Wet t-shirt Wednesday,” “No bra Thursday,” and “Bikini top Friday.” It gets worse.
7. Grief uncontained by the cubicle.
The heartbreaking facts that unfolded in this case posed a dilemma that could keep even the most seasoned HR veteran up tossing in bed at night. A grieving mother whose boss asked her to finally remove her dead daughter’s photos and ballet slippers from her work cubicle, and allegedly told the employee to act as though her daughter “did not exist,” had no claim against the supervisor or her employer, Ortho-McNeil Pharmaceutical, a New Jersey appeals court held.
The employee, who worked as an administrative assistant in the company’s marketing department, was understandably bereft after her only child, a teenage daughter, ballet dancer, and pre-med hopeful, was diagnosed with leukemia and died two years later. She hung the photos and ballet slippers at work to honor the girl’s memory. But after a year-and-a-half, her coworkers grew increasingly uncomfortable with the employee’s ongoing need to talk about her daughter and her death. They began to avoid her, and then complained to human resources.
The boss was assigned the unenviable task of counseling the grieving worker. He told her of her coworkers’ discomfort, asked that she remove the daughter’s items, and suggested, “If you have the need or urge to talk about her you can come into my office and speak of her behind closed doors.” In the employee’s eyes, she was being told to “no longer speak of her daughter because she is dead” and to “act as if her daughter did not exist.” She left work “crying and sobbing,” and never returned. The employee sued for discrimination, constructive discharge, and intentional infliction of emotional distress. But even though a jury could find that the supervisor was “insensitive” or “negligent of plaintiff’s vulnerability in her continuing bereavement,” the appeals court found, his behavior was not “atrocious and utterly intolerable in a civilized community.”
8. Penn State—the whistleblower angle.
On occasion, the course of human events leaves employment lawyers trying in earnest to explain finer points of the law to an angry public. The Penn State scandal that unfolded this year was such an event. After assistant football coach Jerry Sandusky was arrested on abuse charges, some wondered why, given the firings of legendary head coach Joe Paterno and other members of the coaching staff, coach Mike McQueary was still on the payroll. After all, McQueary had witnessed the assailant sodomizing a 10-year-old boy in the football-building shower but remained silent. The explanation—that McQueary may be protected from discharge by state whistleblower laws—didn’t sit well for many. Some questioned how the witness could even be deemed a whistleblower on these facts. But at least one commenter argued it was irrelevant, that the law be damned: pay the damages, pay the fees, and fire him anyhow. Whatever the merits of the whistleblower theory in this case, the events that unfolded at Penn State are a compelling reminder that sometimes, compliance and liability concerns ought not to be the largest considerations at play.
9. Well, no one looks in the yellow pages these days.
Buy Now on GroupOn! Two-for-one mani-pedi’s! $10 for $20 worth of gourmet cupcakes! 60-percent reduced fee on severance negotiations! Just another novel business development tack for the social media age. And it’s hardly far-fetched: Both the South Carolina and North Carolina state bars have issued ethics opinions on the wisdom of offering legal services on daily deals sites, advising that to adopt such a promotion does not violate ethics rules. The logistics of doing so is a different matter, one that gets taken up by Virtual Law Practice blog and its readers. And the wisdom of this marketing strategy is another issue altogether, notes The Strategist.
Or there’s always the old-media approach. “Boss taking advantage of you?” The Los Angeles firm Solomon, Saltsman & Jamieson has placed 17 billboards on the city’s Westside asking this perennial ice-breaker. The billboard shows a man (presumably the boss) with a suggestive smirk towards a woman, who is tending to her work at a filing cabinet, bent over beside him. To inform workers of their rights “and legal recourse to stand up for themselves,” the firm created Mybossstinks.com, an information resource for aggrieved employees. In a press release announcing the billboards, the firm said it hopes the provocative ad also “prompts bosses to do the right thing so we don’t need to get involved.” But just in case they do, a link to the firm’s website is provided.
I eagerly anticipate what “not-so-top” ten stories the new year will bring. Happy 2012!
New Jersey announces initiative to raise awareness of veterans’ rights; Missouri applauds employers hiring veterans
December 29th, 2011 | Deborah Hammonds | Add a Comment
In an effort to ensure that veterans and active military personnel are aware of their rights under the state’s antidiscrimination law, New Jersey has launched a statewide initiative to promote awareness of their rights under the New Jersey Law Against Discrimination (NJLAD). The initiative is intended to help those who have served in the military and – upon returning to civilian life – encountered discrimination in the workplace and elsewhere.
“This is one way of giving back to those who have given so much,” said New Jersey Attorney General Paula T. Dow. “Many people understand that discrimination based on gender, race or religion is illegal. Through this initiative, we intend to spread the word that discrimination against someone simply because he or she is a member of the military and has answered the call to duty – or might end up answering that call to serve – is just as illegal.”
“Men and women in the military devote themselves to protecting us,” said New Jersey Division on Civil Rights Director Craig Sashihara. “The least we can do is ensure that they’re not treated unfairly in their civilian jobs, in their attempts to obtain housing for their families, or in their efforts to gain access to places of public accommodation. No one should be penalized for serving his or her country.”
Sashihara explained that one concern underlying the outreach effort is that discrimination against military personnel may go unreported due to a lack of awareness of the protections afforded by the law. For example, he noted, some military members may not realize that an employee cannot be fired, demoted or removed from promotional consideration simply because they are absent from work fulfilling their service obligations.
Working in conjunction with the American Legion of New Jersey and other stakeholders, the Division recently held the first of what will be a series of public forums for military veterans at the American Legion Post in Lawrenceville. In addition to the American Legion, other partners in the veterans’ outreach initiative include the New Jersey Department of Military and Veterans Affairs and the U.S. Equal Employment Opportunity Commission (EEOC), which can provide veterans with information and assistance pertaining to federal anti-discrimination law. For additional information, go to www.NJCivilRights.org.
Missouri employers applauded for hiring veterans. Last week Missouri Governor Jay Nixon awarded the Flag of Freedom award to two employers who hired military veterans under the Show-Me Heroes program in the past year. The Show-Me Heroes program is designed to connect military veterans with job opportunities when they return home from service. Employers participating in the program sign a pledge to ramp up efforts to reach out to, recruit and interview veterans for job openings at their businesses.
On December 22, Governor Nixon presented the Flag of Freedom award to Pacific, Missouri-based Graphic Packaging, which hired three military veterans in the past year under the program, and St. Charles, Missouri-based Zoltek Companies, Inc, which hired four military veterans in the past year under the program. Applauding the companies’ efforts, the Governor stated that he was proud to give the Flag of Freedom award to businesses that made hiring veterans a priority.
Employers who participate in the Show-Me Heroes program are listed prominently in an online database that highlights veteran-friendly employers across Missouri. The database includes contact information for the businesses and links to their websites. Employers receive a special certificate, signed by the Governor, and a decal to display at their location. The website also includes resources for job-seeking veterans, including links to employment openings in state government and a link to Missouri Career Source, a statewide one-stop-shop for Missourians looking for work.
To date, 1,702 Missouri employers have taken the Show-Me Heroes pledge and 989 veterans have been hired. “Show-Me Heroes is a great way to acknowledge the sacrifices made by the men and women of our armed services and help our veterans transition back to civilian life when they return home. Especially during this holiday season, I encourage more Missouri employers to join the ranks of those who have hired a veteran through the Show-Me Heroes program,” Governor Nixon said.
More information about the Show-Me Heroes program can be found on the state’s website, www.MO.gov.
Employers pay the price while the legal profession struggles to keep pace with employees’ improper use of advancing technologies
December 28th, 2011 | Lorene Park | Add a Comment
The widespread use of the Internet has given employees a powerful tool to vent unhappiness with their employers and to potentially harm business operations by disseminating confidential information. Breaches of confidentiality, cybersmear, and other attacks on employers through the use of mass emails, chat rooms, Twitter, Facebook, and other social media, have become much more common. While the legal profession struggles to keep up, employers face costly litigation. As evidenced by several recent cases, employers have used a variety of approaches in response to Internet and email attacks by employees, with varying success.
For example, in Veolia Trans Servs, Inc v Evanson (November 28, 2011, Wake, N) a former employee sent anonymous emails criticizing her former employer to current employees, the city council, and media organizations. The employer filed suit against John Doe defendants alleging tortious interference, defamation, conversion, and other state law claims. Through early discovery, it was disclosed by Yahoo! Inc. that the former employee owned one of the IP addresses from which the emails were sent and she was served with a subpoena that requested inspection and copying of her computer hard drives, email files and other devices. In response, she deleted emails and her browsing history and then destroyed her hard drive. Given the deliberate nature of her actions, and the risk of substantial prejudice to the company if it had to litigate without the destroyed evidence, the court granted default judgment against her and in favor of the employer as a remedy.
In other cases, employees have been terminated for posting disparaging remarks on Facebook pages. Some of these terminations have resulted in legal actions against the employer. For example, a public employee recently alleged that her Facebook post addressed a matter of public concern and the termination violated her First Amendment right to free speech (Mattingly v Milligan, November 1, 2011, Holmes, J). In the private employment context, there have been concerns that such terminations violated the NLRA. In three advice memos (TAW, Inc; Copiah Bank; Intermountain) recently released by the NLRB, the General Counsel’s Division of Advice recommended dismissing charges against employers alleged to have unlawfully fired employees over Facebook posts. In each case, the General Counsel found no evidence that the posts were protected, concerted activity. Other statutory claims have also been asserted. In one case, an employee who complained on her Facebook page that Morgan Chase did not pay her overtime alleged that the banking giant unlawfully retaliated against her in violation of the FLSA when it fired her (Morse v JP Morgan Chase & Co, June 23, 2011, Whittemore, J). The court rejected her claim, finding that her Facebook post was not a “complaint” within the meaning of the FLSA.
Other cases demonstrate that laws are failing to keep pace with changing technologies. For example, in Obsidian Fin Group, LLC v Cox (November 30, 2011, Hernandez, M), a blogger who criticized a company was not entitled the protection of Oregon’s defamation laws that shield media outlets because the legislature had not yet expanded the list of publications or broadcasts to include Internet blogs. Although the blogger was not an employee, the same rationale would likely apply to an employee blogger. In another recent case, a former employee did not attack the employer, but did take his employer’s Twitter account (PhoneDog v Kravitz, November 8, 2011, James, M). The employee’s job was to provide commentary via a variety of media, including the employer’s website and Twitter account. When the employee left, he changed the Twitter account’s handle to his name and took his 17,000 followers with him. To the employer, all Twitter accounts used by its employees, including the passwords, were proprietary, confidential information. The court upheld the employer’s misappropriation and conversion claims, finding that the numerous thorny issues, including how to value the account for damages purposes and the impact of Twitter’s prohibition against purchasing and selling accounts, precluded any resolution on a motion to dismiss.
Because technology is rapidly advancing, and litigation is an expensive and often ineffective method for addressing breaches of confidentiality, cybersmear, and related issues, it is clear that prevention is the best approach for employers. Possible ways to minimize the risks posed by social media and other electronic communications include the following:
- Give employees alternative meaningful ways to air their grievances within the company so there is less of a need to “vent” elsewhere.
- Train managers and HR staff on the importance of open communication with employees but also on how to deal with social media issues.
- Implement clear computer and Internet use policies that, at a minimum, clearly communicate to employees that they do not have an expectation of privacy when accessing email or social media at work and prohibit employees from discussing the company’s confidential information online. However, be aware that policies banning the use of company images or disrespectful language could be considered a violation of the NLRA, so consider including a disclaimer stating that such policies do not apply to conduct protected by the NLRA.
- Use confidentiality and non-disclosure agreements. With respect to severance agreements, consider including a non-disparagement provision.
- Monitor employee computer use, including email access. Limit access to the company’s server or email system to current employees and disable old email accounts, particularly after an employee is terminated. Monitor the Internet for company-related posts or chat rooms.
- Develop strategies for responding to cybersmear. Identify the risks associated with different types of attacks and determine how to handle each. Employers may want to limit discipline or other responses due to NLRA Sec. 7 concerns and public relations issues. In some cases, the best response may be to do nothing.
- When developing policies and procedures for limiting and monitoring access to the company’s computers, email systems, or intranet, as well as files containing confidential information, include independent contractors. Although independent contractors may be given the same access as employees, they may not be subject to the same policies and procedures as employees.
Before taking any of these actions, employers would be well-advised to consult with both legal and technological experts, so that the approach taken is one tailored to the employer’s specific needs.
FMLA’s revised joint employer regulation not given retroactive effect; thus, revised regulation not applicable to pre-amendment conduct
December 27th, 2011 | Ron Miller | Add a Comment
On January 16, 2009, the current version of 29 CFR §825.111(a)(3) (2009) when into effect. Under the amended regulation, the worksite of a jointly employed worker is the primary employer’s office, unless he has physically worked for at least one year at a facility of the secondary employer, in which case the employee’s worksite is that location. The 1995 version of the regulation was more stringent, providing that “when an employee is jointly employed by two or more employers, the employee’s worksite is the primary employer’s office from which the employee is assigned or reports.” Still, under both sets of the regulations, the date upon which application of the 50/75 exclusion is determined is the date the employee provides notice of the need for leave.
Background. In a recent case, Newsome v Young Supply Co, December 15, 2011, an employee alleged that joint employers unlawfully refused to restore him to his original job as a truck driver following FMLA leave. The employers, a supply company and an employee leasing company, admitted their status as joint employers, but challenged the authority of §825.111(a)(3) (1995), establishing the employee leasing company’s facility as the employee’s worksite for purposes of determining whether the 50 employee/75 mile coverage exclusion applied.
In September 2008, the employee provided notice of his need for medical leave in order to undergo surgery. The defendants conceded that his medical condition constituted a “serious health condition” under the FMLA. At the completion of his medical leave, the defendants refused to reinstate him to his original position, or an equivalent job. Here, the joint employers alleged that the supply company, not the employee leasing company, should be regarded as the employee’s worksite. There was no question but that the leasing company employed 50 or more employees within 75 miles of its facility; however, it was equally clear that the supply company did not meet the 50/75 rule. Thus, the question was what constituted the employee’s “worksite.”
Worksite. In this instance, a federal district court in Michigan found no merit to the employers’ challenge to the application to them of the joint employer regulations under 29 CFR §825.111(a)(3) (1995). It declined to apply the amended version of the regulation, §825.111(a)(3) (2009), because it did not take effect until after the employee invoked his rights under the FMLA and commenced his leave. Further, the court declined to retroactively apply the amended version of the regulation to bar coverage of the employee’s claim.
Congress specifically delegated rule-making authority to the Secretary of Labor to “prescribe such regulations necessary to carry out” the FMLA, observed the court. The Secretary used full notice and comment rule-making procedures when promulgating the regulations implementing the FMLA. Pursuant to that authority, the Secretary promulgated §825.111(a)(3), which defines the “worksite” for an employee of “joint employers.”
In response to the employers’ argument that the current regulation should apply, the court observed that because the FMLA is a remedial statute, its coverage and protections must be construed broadly in favor of the employee. Moreover, the 50/75 “worksite” provision is an exclusion and, as such, must be construed “narrowly,” noted the court.
A federal district court in Michigan found no merit to the employers’ challenge to the application to them of the joint employer regulations under 29 CFR Sec. 825.111(a)(3) (1995). Further, it also declined to apply the amended version of the regulation, sec. 825.111(a)(3) (2009), because it did not take effect until after the employee invoked his rights under the FMLA and commenced his leave. Thus, the court declined to retroactively apply the amended version of the regulation to bar coverage of the employee’s claim.
Retroactive application. Further, the court declined to grant retroactive application to §825.111(a)(3) (2009) because such application of amendments to regulations is disfavored. Specific to the FMLA, Congress did not extend to the Secretary of Labor the authority to make regulations retroactive. Additionally, the 2009 amendments did not provide for retroactive effect. In this instance, the joint employers conceded that the employee provided notice of his need for leave in September 2008. Because that date was before the amended regulation took effect, the court ruled that the original version of §825.111(a)(3) (1995) must be applied, and the amended 2009 version cannot be given retroactive effect.
Employers wrestling with transgender-related issues can take a few tips from the Feds
December 22nd, 2011 | Pamela Wolf | Add a Comment
Employers are having a tough time trying to figure out how to respond to the many issues surrounding transgender individuals in the workplace – transgender customers, transgender employees, and employees who are offended by gender nonconformity. What should employers do when a transgender individual seeks to use a fitting room, restroom or locker room consistent with his or her gender identity? The answers are far from clear, but guidance intended for federal employers has much to offer.
Earlier this month, a media storm erupted when Macy’s fired a female employee who advised a transgender male-to-female customer that the customer could not use the women’s filling room, an apparent violation of the giant retailer’s corporate policies. The employee, who is a Christian, defended her actions on religious grounds, citing her right not to ignore what she characterized as the customer’s “true” gender or to condone homosexuality. She also apparently believed the customer might subject other patrons to discomfort or danger by using the women’s fitting room. After hiring a Christian law firm, the employee filed a complaint with the EEOC.
It will be interesting to watch the development of this battle between religious and gender discrimination. But in the meantime, many employers are wondering what to do should similar circumstances arise – and feeling damned if they do, and damned if they don’t.
Religious accommodation? Arguably, a reasonable first step might have been to change the employee’s duties in an attempt to accommodate her religious sensibilities – perhaps assigning her to cashier, rather than fitting room duties. Of course, that may not have prevented the employee from being religiously affronted each time a transgender patron walked through the fitting room door. To allow the employee’s religious convictions so much sway as to permit her to prevent transgender patrons from using the fitting room consistent with their gender identity would likely not only cause the employer more than an undue hardship, it may also have given rise to liability for discrimination against patrons – an issue Macy’s had apparently encountered previously.
Battles such as these are likely to continue as employers increasingly face the question of how to deal with individuals who do not conform to gender stereotypes. A recent federal appeals court decision sheds some light on the question. Although it does not involve the religious discrimination issue encountered in the Macy’s case, it does address in the context of justification for bias, a similar issue – transgender employees using a restroom consistent with their gender identity.
Transgender employee wins sex bias claim. Just two days before the media frenzy over the Macy’s situation, the Eleventh Circuit Court of Appeals rendered an opinion in favor of a transgender state government employee who was discharged due to her gender nonconformity. The appeals court held that discriminating against someone on the basis of her gender nonconformity constitutes sex-based discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution, ruling in favor of the male-to-female transgender employee on her claim that she was fired due to sex discrimination (Glenn v Brumby, December 6, 2011, Barkett, R).
When the employee was hired as an editor by the Georgia General Assembly’s Office of Legislative Council (OLC), she was presenting as a man. The head of the OLC, who was also the chief legal counsel for the OLC, was responsible for all personnel decisions.
In the year following her hire, the employee informed her direct supervisor that she was transgender and was in the process of becoming a woman. On the one occasion that the employee came to work presenting as a woman (on Halloween when OLC employees were permitted to come to work wearing costumes), the OLC head told her that her appearance was inappropriate and asked her to leave the office. The OLC head took no adverse employment action against her at the time, and in the following months she came to work presenting as a man.
The next year, she informed her supervisor that she was ready to proceed with her gender transition and would begin coming to work as woman. When the supervisor informed the OLC head, he told the supervisor that he was going fire the employee because of the gender transition and then did so.
The editor filed suit, alleging among others, a sex discrimination claim. A district court granted summary judgment in favor of the editor on this claim.
Gender stereotyping and equal protection. On appeal, citing the landmark case of Price Waterhouse v Hopkins, the Eleventh Circuit noted that the U.S. Supreme Court has held that discrimination on the basis of gender stereotype is sex-based discrimination. Applying the logic of that decision to the case at hand, the Eleventh Circuit reasoned that “[a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes.” Thus, there is congruence between discriminating against transgender and transsexual individuals, and discrimination on the basis of gender-based behavioral norms, the court concluded.
The First, Sixth, and Ninth Circuits, as well as many district courts, have also held that discrimination against a transgender individual because of her gender-nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender, the Eleventh Circuit stated. Moreover, supported by citations to Fourth, Seventh and Ninth Circuit decisions, the court here pointed out that all persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype. “Because these protections are afforded to everyone, they cannot be denied to a transgender individual,” the Eleventh Circuit wrote.
“Ever since the Supreme Court began to apply heightened [constitutional] scrutiny to sex-based classifications, its consistent purpose has been to eliminate discrimination on the basis of gender stereotypes,” the Eleventh Circuit noted. Accordingly, governmental acts based upon gender stereotypes must be subjected to heightened scrutiny (as are all other gender discrimination claims) because they embody the very stereotype the law condemns. “We conclude that a government agent violates the Equal Protection Clause’s prohibition of sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity,” the Eleventh Circuit wrote.
Termination. The court then turned to the issue of whether the editor was fired on the basis of her gender-nonconformity. The OLC head testified at his deposition that he fired the editor because he considered it “inappropriate” for her to appear at work dressed as a woman and that he found it “unsettling” and “unnatural” that she would appear wearing women’s clothing. He also testified that his decision to fire her was based on his perception of the editor as “a man dressed as a woman and made up as a woman,” and he admitted that his decision to fire her was based on “the sheer fact of the transition.” This testimony provided ample direct evidence to support the district court’s finding that the OLC head acted on the basis of the editor’s gender non-conformity.
Had this case been a Title VII case, the analysis would end at this point, the Eleventh Circuit said. However, because the editor’s claim was based on the Equal Protection Clause, the court was required under heightened scrutiny to consider whether the OLC head succeeded in showing that there was a “sufficiently important governmental interest” for his discriminatory conduct, the court explained, adding that this burden rested entirely on the state.
Restroom defense fails. The OLC head offered, on appeal, only one putative justification for the firing: his purported concern that failure to fire the editor could expose the state government to suits for invasion of privacy or sexual harassment. However, he presented insufficient evidence to show that he was actually motivated by concern over litigation regarding the editor’s restroom use, the Eleventh Circuit ruled. To support this justification, the OLC head pointed to a single statement in his deposition where he referred to a speculative concern about lawsuits arising if the editor used the women’s restroom. He asserted that, although there were single-occupancy restrooms available in the OLC office, the editor was not required to use these and may have used the multi-person restrooms located elsewhere in the Georgia Capitol Building.
There was no evidence that the restroom issue was an actual concern of the OLC head because there was nothing in the record to show he discussed this purported concern with anyone, and there was no evidence that the editor had used, or ever intended to use, the female restrooms in the capitol building while presenting as a woman. Also, there was no evidence of any complaints concerning the employee’s restroom use. Indeed, the Eleventh Circuit pointed out, the OLC head testified that he viewed the possibility of a lawsuit by a coworker if the editor were retained as unlikely.
Because the OLC head offered “no other reason that could qualify as a governmental purpose, much less an ‘important’ governmental purpose, and even less than that, a ‘sufficiently important governmental purpose,’” that was achieved by firing the editor due to gender nonconformity, the Eleventh Circuit affirmed the district court’s ruling in favor of the editor on her sex discrimination claim.
Guidance for employers. Employers clearly may not discriminate based upon nonconformity to gender stereotypes. The Glenn case, while providing a peek at the analysis courts may apply to the “restroom defense” in the context of a government justification for intentional bias against transgender employees, falls short of offering concrete guidance to employers. However, guidance for federal employers that was issued by the U.S. Office of Personnel Management (OPM) earlier this year may also prove helpful to private sector employers as well.
Noting that several issues commonly generate questions from managers and employees working with a transitioning employee, the OPM provided guidance on these issues, including use of restrooms and other sanitary facilities, to assist in “ensuring that transitioning employees are treated with dignity and respect.” The guidance includes the following statements:
• Sanitary and related facilities: The OSHA guidelines require agencies to make access to adequate sanitary facilities as free as possible for all employees in order to avoid serious health consequences. For a transitioning employee, this means that, once the employee has begun living and working full-time in the gender that reflects his or her gender identity, agencies should allow access to restrooms and (if provided to other employees) locker room facilities consistent with his or her gender identity.
• Confidentiality and privacy: An employee’s transition should be treated with as much sensitivity and confidentiality as any other employee’s significant life experiences, such as hospitalization or marital difficulties. Employees in transition usually want as little publicity about their transition as possible. They may be concerned about safety and employment issues if other people or employers become aware that they have transitioned. Medical information received about individual employees is protected under the Privacy Act (5 U.S.C. 552a).
• Dress and appearance: Employees who begin the “real life experience” stage are required under the WPATH Standards to live and work full-time in the target gender in all aspects of their life, including dressing at all times in the clothes of the target gender. Once an employee has informed management that he or she is transitioning, the employee will begin wearing the clothes associated with the gender to which he or she is transitioning. Agency dress codes should be applied to gender-transitioning employees in the same way they are applied to other employees of that gender. Dress codes should not be used to prevent transgender employees from living full-time in the role consistent with their gender identity.
• Names and pronouns: Managers, supervisors, and coworkers should use the name and pronouns appropriate to the employee’s new gender. Managers, supervisors, and coworkers should also take care to use the correct name and pronouns in employee records and in communications with others about the employee. Continued intentional misuse of the employee’s new name and pronouns, and reference to the employee’s former gender by managers, supervisors, or coworkers may undermine the employee’s therapeutic treatment, and is also contrary to the goal of treating transitioning employees with dignity and respect. Such misuse may also breach the employee’s privacy and create a risk of harm to the employee.
• Recordkeeping: Consistent with the Privacy Act, the records in the employee’s Official Personnel Folder (OPF) and other employee records (pay accounts, training records, benefits documents, etc.) should be changed to show the employee’s new name and gender, once the employee has begun working full-time in the gender role consistent with his or her gender identity.
• Insurance benefits: Employees in transition who already have federal insurance benefits must be allowed to continue their participation, and new employees must be allowed to elect participation in their new names and genders. If the transitioning employees are validly married at the time of the transition, the transition does not affect the validity of that marriage, and spousal coverage should be extended or continued even though the employee in transition has a new name and gender.
Wise employers will not wait for cases to work their way through the courts as more transgender-related issues arise before taking action – the OPM’s guidance may be a good place to start.
