By Lorene D. Park, J.D.
If recent cases are an indication, HR professionals and others tasked with conducting internal investigations of employee complaints or suspected misconduct are failing to follow some basic advice readily available from employment law experts on how and when to conduct a proper investigation. For example, the Society for Human Resource Management published a “How-to” on investigations, identifying common mistakes such as ignoring complaints, losing objectivity, and failing to be thorough. The EEOC also offers guidance for employers facing discrimination or harassment complaints; summarizing what makes an effective investigation, what questions to ask, how to assess credibility, and what corrective actions might be taken. These suggestions likely could have helped the employers in the following cases, many of which can serve as cautionary tales on what not to do.
Don’t ignore, minimize, or discourage complaints—investigate them. Several recent cases involved employers that not only failed to investigate discrimination and harassment complaints but openly dissuaded further complaints. For example, a leased employee survived a motion to dismiss her intentional infliction of emotional distress claim, which was based on allegations that when she told her supervisor about sexual harassment, including being told she was “f*ckable” and invited for a lunch time “quickie,” the supervisor told her to “ignore it and smile” (McCourt v. Gatski Commercial Real Estate Services). A retaliatory harassment claim by a female corrections officer survived summary judgment based in part on evidence that a supervisor responded to her sexual harassment complaints by telling her to keep her mouth shut and that he did not have time to be a babysitter (Sanchez v. State of California).
Minimizing or ignoring discrimination or harassment complaints also hinders any defense in a subsequent lawsuit. In one case, an HR manager minimized racial harassment complaints by an African-American employee by calling the alleged harasser a “good guy” and telling the employee (who was threatened) that “you are going to be fine” (Gillum v. Safeway, Inc.). And an employer in another case now faces punitive damages over a Title VII hostile work environment claim by a female administrative assistant, whose repeated complaints about coworkers making sexual comments and putting porn on her computer prompted no investigation or remedial action. Her complaints were simply ignored (Scuffle v. Wheaton & Sons, Inc.).
Conduct a thorough investigation. Some employers do not ignore complaints but fail to take the ensuing investigation seriously. For example, a finding of employer liability for a hostile work environment was supported in an Illinois case where the HR director took no notes while investigating an employee’s complaints that photographs of sexual bathroom graffiti depicting her image were being passed around the workplace and the HR director refused to look at the photographs. Moreover, the employee’s supervisor blew off her concerns over Facebook posts of the pictures (Meng v. Aramark Corp.).
In some cases, there has been no complaint but an employer suspects employee misconduct. Again, being thorough in the investigation is imperative. For example, a JPMorgan branch manager who was fired soon after taking FMLA leave survived summary judgment on her FMLA claim based in part on evidence that, in investigating allegations of fraud against her, JPMorgan’s investigator did not follow-up on significant evidence suggesting that her ex-brother-in-law was being untruthful (in the midst of a messy divorce) in claiming the employee opened an unauthorized account in his name (Walker v. JPMorgan Chase Bank, N.A.). In another case, evidence that a convenience store employer did not sufficiently investigate or make particularized findings before blaming one co-manager for the theft of lottery tickets from an unsecured cabinet (when the other co-manager was actually the last one on duty) suggested the plaintiff’s discharge was really based on race discrimination (Bondwe v. MAPCO Express, Inc.).
Avoid biased investigators, biased investigations. Surprisingly, some employers have allowed individuals with an obvious source of bias to conduct an investigation. For example, it is not a good idea to let a supervisor investigate possible misconduct by an employee if the employee has previously accused the supervisor of impropriety. Indeed, one court recently held that allowing an accused harasser to investigate a radiology employee’s purported HIPAA violations supported her Title VII hostile work environment claim (Douglas v. Aiken Regional Medical Center).
Sometimes the way an investigation is conducted suggests bias, even if the investigators themselves show none. For example, a federal court in Oklahoma found evidence that an employee’s demotion was due to race discrimination based on the fact that African-American employees were required to turn over their computers during an independent forensic expert’s investigation into violations of a computer use policy (viewing porn at work) while some white employees did not have to turn theirs over (Crabbe v. American Fidelity Assurance Co.).
Timing of an investigation can also suggest ill motive. For example, an employee who was only investigated for possible time card fraud shortly after she took FMLA leave survived summary judgment on her retaliation claim in part due to the timing of the investigation. There was also a tell-tale email from an attorney for whom she worked, in which he queried “Do we have enough now to take action? Please?” The email was sent during the investigation and, at a minimum, showed a desire to take disciplinary action (Hartman v. The Dow Chemical Co.).
Hear all sides to a story. As these cases also suggest, the point of a proper investigation is to seek the truth, not to justify a decision or assumption that has already been made and certainly not to justify discrimination or retaliation. Thus, it is extremely important to give an employee suspected of misconduct a chance to tell his or her side of the story. Failure to do so can be evidence of unlawful intent. For example, the Sixth Circuit found questionable a bank’s motivation for firing an African-American employee who was assumed to be the aggressor in a workplace altercation. Significantly, the investigator did not allow him to tell his side of the story and even ignored evidence that the coworker started the incident (Wheat v. Fifth Third Bank).
Make sure your response is effective. If complained-of conduct continues after an investigation and corrective action, courts are likely to find the employer’s response inadequate. For example, although one company had an anti-harassment policy, investigated an employee’s complaints, and reprimanded a supervisor who asked her about sex toys and said women have the upper hand in business because they can use their sexuality (among other sexist remarks), a jury could find its response insufficient to rely on the Faragher/Ellerth defense because the inappropriate remarks continued (Macaddino v. Inland American Retail Management, LLC).
Responses should be consistent. Make sure, once an internal investigation is complete, that any discipline or other response is consistent with company policy and with the response to similar infractions in the past. Also make sure to treat similarly situated coworkers similarly. Disparate discipline is often at issue in litigation, as are allegations that the punishment didn’t fit the crime. For example, in the MAPCO case, there were two co-managers on duty the day lottery tickets were stolen but only the African-American employee was fired, and that was considered evidence of discrimination. Conversely, in another case, an employer investigated and found that all assistant managers at a theater violated the nonfraternization policy. Two females who were fired claimed discrimination because no male employees were fired. However, the investigation disclosed that they had committed more serious violations, which justified their terminations, and their claims failed as a matter of law (Serrano v. Cinemark USA, Inc.).
Other issues. While many recent cases highlight the ways in which investigatory missteps hurt an employer’s chances of successfully defending discrimination, harassment, or retaliation suits, other cases also raise important considerations with respect to internal investigations:
- Genetic information. An employer violated GINA during an investigation into who was defecating in a warehouse by having DNA from employee cheek swabs compared to the DNA of fecal samples (Lowe v. Atlas Logistics Group Retail Services (Atlanta), LLC).
- FCRA compliance. Although an investigation into employee misconduct normally does not fall under the Fair Credit Reporting Act, an employee had evidence that the investigation that uncovered his criminal background and led to his discharge arose from the employer’s desire to avoid his anticipated discrimination suit rather than to uncover misconduct. The FCRA claim therefore survived summary judgment (Mattiaccio v. DHA Group, Inc.).
- Weingarten rights. An employee who is represented by a union has the right to request and have a union representative present at an investigatory interview that he/she reasonably believes may result in disciplinary action. In one recent case, an NLRB panel found that an employer unlawfully threatened a union steward with discipline for using notes while representing an employee during an interview (Howard Industries Inc.).
- Privilege. Documents created in an investigation by an employer’s attorney may be privileged depending on the facts. For example, a bank sued for discrimination by a former employee did not have to turn over information about another employee’s exit interview and a related investigation by the employer’s attorney but did have to supply the names of the individuals interviewed. The attorney attested that she conducted the interviews, created documents, and provided legal advice on liability and protective measures. Though there were reasons for the investigation that were not in anticipation of litigation, it was not “wholly independent of litigation” so the work-product privilege applied, as did the attorney-client privilege (Richmond v. Mission Bank).
- Spoliation of evidence. Destruction of notes, documents, tapes, or other evidence related to an internal investigation can lead to sanctions for spoliation of evidence, depending on the circumstances. One employer was let off the hook, though, because notes that were shredded had been incorporated into an investigation summary so an employee could not show prejudice and was not entitled to sanctions (Hill v. Phillips 66 Co.).
Outside investigations by regulatory agencies. Also worth noting are several recent cases in which courts issued injunctions or provided other remedies when employers failed to cooperate with, and in some cases interfered with, investigations by regulatory agencies. For example:
- A federal court in California issued an injunction after an employer interfered with the DOL’s investigation into misclassification of cab and limo drivers as independent contractors. Drivers were told not to speak to investigators and to say they were independent contractors (Perez v. Abbas).
- Interference and retaliation were at the forefront of a case in which a federal court issued an injunction against an employer based on evidence that it suspended, fired, and sued an employee because she spoke to the media and complained to OSHA about workplace exposure to chemicals linked to breathing problems. The employer was enjoined from: terminating, suing, or otherwise retaliating against employees for exercising OSH Act rights; telling employees not to speak to DOL representatives; and otherwise obstructing an ongoing DOL investigation (Perez v. Lear Corporation Eeds and Interiors).
- Enforcing an administrative subpoena by the EEOC, a court in Wisconsin noted that the agency still had the authority to investigate possible discrimination even if the claimant who filed the EEOC charge had her individual suit dismissed or reached a settlement with the employer. The agency serves not only the individual’s interests, but the public’s interests, explained the court (EEOC v. Union Pacific Railroad Co.).
- The Fifth Circuit affirmed a DOL Administrative Review Board’s award of $30,000 in damages under SOX’s antiretaliation provision after an employer identified an employee as the whistleblower who reported questionable accounting practices to the SEC, leading to an investigation. The court held that the disclosure, followed by coworker ostracism, was a materially adverse action (Halliburton Co. v. Administrative Review Board (en banc review denied, with several judges dissenting).
Good investigations provide good defenses. When done right, an employer’s investigation into potential misconduct can provide a defense to lawsuits over any remedial measures taken. Thorough investigations and effective responses to harassment and discrimination complaints by employees can provide a basis for the Faragher/Ellerth defense. And proper investigations into misconduct can also allow an employer to rely on the “honest belief” rule, in which even erroneous conclusions (as to an employee’s fault or guilt) will not lead to liability because the employer honestly believed, based on the investigation, that the employee committed the infraction that led to whatever discipline the employee claimed was unlawful. With that in mind, employers should make sure that any HR professional or other employee who undertakes an investigation is aware of the issues identified above. At a minimum:
- Provide effective means for employees to lodge complaints and make sure they know how to do so.
- Take all complaints seriously and have an unbiased investigator conduct a thorough investigation, hearing all sides of the story. Reach a justifiable conclusion.
- Take remedial measures as appropriate, ensuring that the measures are consistent with policy, past practice, and as between individuals who have committed similar infractions. Avoid disparate discipline or discipline that is excessive.
- Follow-up to make sure the remedial measures were effective.
While a reasonable accommodation may take many forms, it must be effective, explained the Second Circuit in observing that, at the same time, employers are not required to provide a perfect accommodation or the very accommodation most strongly preferred by the employee. Accordingly, despite crediting a deaf employee’s assertion that he could not simultaneously watch an American Sign Language interpreter and his employer’s intranet video because it was too “tiring and confusing to switch back and forth between the interpreter and the screen,” the appeals court found this disadvantage did not render his employer’s accommodation of interpretive services ineffective.
The software engineer, who was provided with a number of accommodations during his long-tenure with the company, frequently asked for captioning of particular intranet videos or transcripts of audio files. His employer maintained an intranet site where over 46,000 video files and 35,000 audio files were posted, with thousands of files continuously being uploaded. The content of the library included official management messages, educational and training resources, and employee-generated posts.
Confusing and tiring. In response to his requests, IBM provided transcripts of specific video or audio files rather than on-screen captions, and these were generally made available within five days of his request. He also had access to ASL interpreters who provided real-time translation services, either on-site or remotely, for intranet content as well as for live meetings. Although the employee used interpreters when he attended live meetings, he disliked using them for videos because he found it “confusing and tiring” to look back and forth between the video and the interpreter.
Alleging that his employer discriminated against him because of his disability by refusing to provide the accommodation he demanded—that, at the time they are posted, all intranet videos be captioned and all audio files have transcripts—the employee sued, asserting claims under the ADA and state law. In granting his employer’s motion for summary judgment, the district court found that the company reasonably accommodated the employee by providing ASL interpreters. It also rejected his claim that IBM failed to engage in an interactive process, reasoning that such a claim cannot be maintained if the employer provided reasonable accommodation.
Accommodations. On appeal, the employee argued that while he had access to ASL interpreters, received transcripts upon request, and could view certain videos with captioning, the transcripts were inadequate because they were occasionally subject to delays and the captioning appeared on only a few of the company’s videos. Acknowledging that there might be fact disputes as to the timeliness and adequacy of the transcripts and captioning, the appeals court observed that it was undisputed the ASL interpreters were available to the employee whenever he wished to view a video or access an audio file. Further, the files were translated in real-time and the interpreters were available both on-site and remotely.
Effectiveness of interpreters. While the employee conceded that he regularly used interpreters for work meetings and found their services effective, he argued that interpreters were “not as effective” as captioning. But, explained the court, the law requires an effective accommodation, not the one that is most effective for each employee. As to his contention that it was too confusing and tiring to divide his visual attention between an interpreter and the video screen, while the court conceded the need to split visual focus was a disadvantage that likely tired or annoyed him, in this case, it found that the disadvantage did not render his employer’s accommodations ineffective.
Because a person who is deaf necessarily receives auditory information from the other senses, such as sight, it can be expected that many accommodations of deafness will tax visual attention to some degree, said the court, in finding that an “accommodation for deafness therefore cannot be rendered ineffective by the need to divide visual attention, without more.”
As support for its holding, the court pointed out that the term “reasonable accommodation” is defined by regulation (29 C.F.R. Sec. 1630.2(o)(2)(ii)) to include “the provision of qualified readers or interpreters.” While per se rules are unreliable in the disability context, and thus ASL interpretive services may not always constitute a reasonable accommodation, according to regulation, interpreters are a common form of reasonable accommodation, the court stated.
In addition, the employee conceded that ASL interpreters were effective for live business meetings. Finding no evidence that live meetings were somehow less visually demanding or that the employee had to shift his eyes a shorter distance, the court pointed out that at meetings, just as with videos, the employee needed to watch the interpreter while simultaneously looking elsewhere to observe the facial expressions and gestures of the speaker, identify who was speaking, and follow any visual aids.
Pointing out that the employee was fluent in ASL, and that there was no evidence that the interpreters were unqualified or that the use of interpreters was somehow inconsistent with his position as a software engineer, the court concluded that his sole objection—he had to look back and forth between an interpreter and his screen—did not, without more, make that accommodation unreasonable. Accordingly, the court affirmed the grant of summary judgment as to this claim.
Employer takeaways. The reasonable accommodation requirement is a means by which barriers to the equal employment opportunity of an individual with a disability are removed or alleviated. These barriers may, for example, be physical or structural obstacles that inhibit access of an individual with a disability to job sites, facilities or equipment; rigid work schedules that permit no flexibility as to when work is performed or when breaks may be taken; or inflexible job procedures that unduly limit the modes of communication that are used on the job, or the way in which particular tasks are accomplished.
Once a qualified individual with a disability has requested a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation through an informal, interactive, problem-solving technique involving both the employer and the qualified individual with a disability.
When a qualified individual with a disability has requested a reasonable accommodation to assist in the performance of a job, the employer should:
1. Analyze the particular job involved and determine its purpose and essential functions;
2. Consult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual’s disability and how those limitations could be overcome with a reasonable accommodation;
3. In consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position; and
4. Consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate for both parties.
In many instances, the appropriate reasonable accommodation may be so obvious to either or both the employer and the qualified individual with a disability that it may not be necessary to proceed in this step-by-step fashion.
There’s been a lot of conversation about pay inequity lately. Who knows exactly why? Is it real concern or a sly way of highlighting the two female candidates in next year’s presidential election? Is it just the latest “hot topic” for a media looking to fill a few minutes of a 24-hour news cycle? Whatever the reason, the issue appears to be taking off and while inequity can be based on an individual’s race, ethnicity or age, most people think of gender when talking about pay equity. And gender pay inequity is not a new issue. Various federal and state laws have existed for years as a means to prohibit and rectify pay discrimination on the basis of gender. Despite this, differences seem to remain.
While the Paycheck Fairness Act keeps bouncing around Washington D.C., some states have decided to tackle the issue themselves. In California, legislators are considering a bill which, according to its sponsors, would help eliminate gender-based pay inequity. Just last week, A.B. 1017, which would bar employers from asking job applicants about their salary history and from releasing the salary history of current and former employees, was referred to the state’s senate Committee on Labor and Industrial Relations.
According to the bill’s sponsor, Assembly Member Nora Campos, A.B. 1017 will:
- address pay inequity in two key ways so that women have more bargaining power when negotiating their salaries.
- address women’s pay inequity in the public sector by prohibiting employers from seeking job candidates’ salary histories.
- remove past salary history from the hiring determination, which will help ensure that employers will not be able to use a history of low pay as justification for continuing to underpay women.
Eliminating gender-based pay inequity. According to a legislative analysis, the bill is sponsored by the California Employment Lawyers Association and the American Association of University Women. They have argued that the sluggish progress of efforts to eliminate gender-based pay inequality is due, at least in part, to employers having been permitted to preserve historical inequities. Because changing jobs is often the best chance women have to increase their pay, lawmakers should make sure they are not penalized by prior salaries that may well have been discriminatory, according to the bill’s sponsors. Policies pegging current salary to prior pay by default ignore the reality that the prior salary earned by a male job applicant may be the product of sex discrimination, or may reflect the residual effects of the traditionally enhanced value attached to work usually performed by men.
Opposition. A coalition of employers, including the California Chamber of Commerce, opposes the measure. They assert that despite the assumption that employers have accurate wage information on what the current market is for all potential job positions, they often do not. By requesting salary information, employers are able to adjust any unrealistic expectations or salary ranges to match the current market rate for the advertised position. This has worked to the benefit of the applicant or employee, according to opponents. Moreover, current protections exist in law to address pay disparity—this bill would merely create additional avenues of litigation, opponents say.
California Fair Pay Act. Campos is a member of the California Legislative Women’s Caucus, which introduced the California Fair Pay Act – Senate Bill 358 – earlier this year. According to the caucus, SB 358 will California’s equal pay laws to ensure that women are paid equally for work that is comparable to their male colleagues and do not face retaliation if they discuss or ask about pay at work. SB 358 is currently before the senate Appropriations Committee.
By Lisa Milam-Perez, J.D.
I love conferences. I absolutely geek out at them. It’s like being back at school, but without the homework, and taking only the classes that you want to. Plus, you get to meet some nice people.
A few weeks ago, while attending the Minnesota CLE Upper Midwest Employment Law Institute, I broke bread with a finance attorney from North Dakota. He was only there for the CLE requirements, he confessed, but he was finding this employment stuff fascinating. Could this conservative gent (“Obama lies about everything,” he warned) and this unabashed liberal find common cause over the course of the half hour we’d spend together by dint of fate and banquet-style luncheon seating?
As it turns out, we agreed more than not—most passionately about the troubling rise in income inequality and the generally crappy state of wages these days for too many American workers. I thought of him yesterday, in fact, when I came upon the New York Times’ survey which found there was urgent concern about income inequality across the political spectrum. But we had a clear difference of opinion (albeit a civil, reasoned one) on this snowballing issue of criminal background checks.
My lunch mate argued that employers should be able to engage in unfettered due diligence in staffing their business—and to freely refrain from hiring criminals for safety’s sake and to avoid the liability risks. He was a mighty, if friendly foe. But I steeled myself and thought back to when, at this very conference three years earlier, the EEOC’s Chai Feldblum and Victoria Lipnic sat before an enormous crowd of skeptical HR types, defending the agency’s just-released update to its guidance on the use of criminal history in employment decisions.
I remembered the “due process” rationale behind the individualized assessment requirement (it had been quite a sticking point for employers): that applicants should be afforded notice and an opportunity to explain any adverse information in their records. I recalled the Commissioners urging attendees that, rather than reject out-of-hand those prospects with criminal convictions, they should consider the nature of the past offense, the particular position being filled, and the importance of taking into account the amount of time elapsed since an offense was committed, given evidence of its inverse correlation to recidivism rates.
But mostly, I remembered Lipnic—a Republican—speaking earnestly of the social implications. “I understand you may be looking at thousands of applicants, and you may have a system in place that is going to knock them out of the blocks right away. But if that’s the process we have, then people with criminal backgrounds will never be able to get a job,” Lipnic told the audience at the time. “Do we really expect that people who have been incarcerated should never have an employment opportunity again?”
Would that I was able to confer with my lunch mate with such eloquence; we might not have parted ways with a “pleasure to meet you” and an agreement to disagree.
The next day, I sat hoping that my North Dakota friend was somewhere in the audience listening to the EEOC’s Peggy Mastroianni during the morning plenary session. As she discussed the agency’s enforcement focus on discrimination in recruitment and hiring, she boasted that the 2012 guidance had “transformed the way employers look at criminal records.” According to one survey, she told attendees, 88 percent of employers are following the guidance, and 64 percent are conducting individualized assessments rather than issuing blanket restrictions on hiring applicants with criminal records.
“People are realizing that it’s very easy to get a criminal record in the United States. And we are becoming aware of the economic impact of mass incarceration. To have a huge segment of our population out of the workforce doesn’t make sense economically.” Did you hear that, Mr. North Dakota Finance Lawyer Man?
Meanwhile, Mastroianni added, “ban the box” has gone viral. The phrase refers to state laws prohibiting public employers from including, on job applications, checkboxes asking applicants if they have criminal records, along with voluntary policies exercising such restraint by private employers. Target, Walmart—even Koch Industries—have “banned the box.” Seventeen states have done so too, and more than 100 municipalities. (In six of those states and a number of cities, the measures cover private-sector employers too.)
The federal government could well be next. Last month, Sens. Sherrod Brown (D-Ohio) and Cory Booker (D-NJ), along with a sizeable number of their Democratic Senate colleagues, sent President Obama a letter urging him to ban the box for federal agencies and government contractors. Federal “ban the box” legislation has been introduced in the past to no avail. However, an executive order impacting federal contractors would reach a critical mass of the nation’s private employers. And it would no doubt further fuel this burgeoning movement.
Will I be sitting in a conference session about a newly enacted federal ban-the-box statute at the Minnesota CLE next year? Not likely, given Washington’s current political makeup. But federal policy, state law, employer practices, and indeed, public opinion on the issue are clearly changing. So at least if I run across my lunch mate next year, we may find even more upon which we can agree.
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.