Navigating New Legal Developments on Same-Sex Marriage, Transgender Rights, and Pregnancy Discrimination: What Employers Need to Know

Thursday, September 17, 2015

Moderator

Daniel H. Handman Partner, Hirschfeld Kraemer San Francisco, CA dhandman@HKemploymentlaw.com

Speakers

2

Jennifer S. Divine Miller Nash Graham & Dunn Seattle, WA jennifer.divine@millernash.com Michael S. Glassman Dinsmore & Shohl Cincinnati, OH michael.glassman@dinsmore.com

Speakers

3

Ashley S. Kelly Arnall Golden Gregory Atlanta, GA ashley.kelly@agg.com Erin Kuzz Sherrard Kuzz Toronto, Ontario ekuzz@sherrardkuzz.com

Speakers

4

Shelby S. Skeabeck Shawe & Rosenthal Baltimore, MD skeabeck@shawe.com Parker E. Thoeni Shawe & Rosenthal Baltimore, MD pet@shawe.com

Speakers

5

The Transitioning Legal Landscape of Transgender Rights

in the Workplace

Shelby Skeabeck Parker E. Thoeni

Shawe & Rosenthal 6

• Title VII enforced by the Equal Employment Opportunity Commission (EEOC) ‒ It shall be an unlawful employment practice for

an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s…sex.

Federal Law – Title VII

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• Gender Identity is not listed as a protected category under Title VII.

• So we need to know more about what constitutes discrimination based on sex.

• Price Waterhouse v. Hopkins (Supreme Court 1989) ‒ Establishes claim for “sex stereotyping” ‒ Uses term “gender” in context of

discrimination based on sex under Title VII

Federal Law – Title VII

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• Schroer v. Billington (D.D.C. 2006) ‒ Protection against sex stereotyping is different from

protecting men, whether effeminate or not, who seek to present themselves as women, or women, whether masculine or not, who present themselves as men. o A sex stereotyping claim must arise from the

employee’s appearance or conduct and the employer’s stereotypical perceptions.

o Such a claim is not stated here where the complaint alleges the non-selection was the result of the plaintiff’s disclosure of her gender dysphoria.

Federal Law – Title VII

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• Schroer v. Billington (D.D.C. 2006) – cont’d ‒ Schroer is not seeking acceptance as a man with

feminine traits. She seeks to express her female identity, not as an effeminate male, but as a woman.

‒ Discrimination against transsexuals because they are transsexuals is literally discrimination because of sex.

Federal Law – Title VII

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• EEOC’s Strategic Enforcement Plan for FY2013-2016 includes LGBT initiatives.

• EEOC interprets Title VII prohibition against sex discrimination as providing protection to lesbian, gay, bisexual, and transgender people.

EEOC Position

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• Macy v. Dept. of Justice (Federal Sector 2012) – When an employer discriminates against

someone because the person is transgender, the employer has engaged in disparate treatment related to the sex of the victim.

• Lusardi v. Dept. of Army (Federal Sector 2015)

EEOC Position

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• Diagnostic and Statistical Manual of Mental Disorders (DSM) ‒ DSM IV - Gender Identity Disorder ‒ DSM 5 - Gender Dysphoria o Replaces the diagnostic name “gender identity

disorder” with “gender dysphoria” o Gender nonconformity is not in itself a mental

disorder o Critical element of gender dysphoria is the presence

of clinically significant distress associated with the condition

Federal Law – ADA: Medical Diagnosis

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• Under this chapter, the term "disability" shall not include transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders

Federal Law – ADA: Exclusions

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• Under certain conditions, entitles employees to leave for serious health conditions

• Does not specifically address gender identity • Process requests for leave related to

treatment for gender identity conditions the same as all other FMLA requests

Federal Law – FMLA

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• OFCCP is the federal agency within the DOL that enforces equal employment opportunity laws and regulations for federal contractors.

• Executive Order 13672 ‒ Amended Executive Order 11246 to prohibit

federal contractors and subcontractors from discriminating on the basis of sexual orientation or gender identity.

‒ Went into effect on April 8, 2015

OFFCP: Following EEOC

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• States that include gender identity in the list of protected categories:

State and Local Laws

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Practical Tips for Accommodating Transgender

Employees

Jennifer S. Divine Miller Nash Graham & Dunn

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• Name/pronoun changes • Bathrooms/locker rooms • Coworker/customer attitudes

Practical Tips – Key Issues

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• Proactive planning • Check compliance with local laws • Don’t make assumptions • Communicate with transgender employee(s)

Practical Tips – Themes

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• Personnel records – Work within legal restrictions – Adjust internal records/systems as much as

possible • Timing of announcement/communication • Train coworkers to use new name/pronouns

– Supervisors and top management lead by example

– Use of PGP (preferred gender pronoun)

Name/Pronoun Changes

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• OSHA Best Practices Guide to Restroom Access for Transgender Workers – June 1, 2015 – https://www.osha.gov/Publications/OSHA3795.pdf – Guidance only, not legal mandate – Developed in cooperation with National Center

for Transgender Equality

“All employees, including transgender employees, should have access to restrooms that correspond to

their gender identity.”

Bathrooms

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• OSHA Sanitation Standard (29 CFR 1910.141) – Safe healthy workplace requires employers to

provide all employees with sanitary toilets. o Prompt access and no unreasonable restrictions o Includes transgender employees

– OSHA best practices core principle o Employees should be allowed to choose facilities

that correspond with their gender identity o Each transgender employee decides the most

appropriate and safest option for him- or herself

Bathrooms – OSHA Guidance

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• Additional options for employee choice – Single-occupancy gender-neutral (unisex) facilities – Multiple-occupant, gender-neutral restroom with

lockable single occupant stalls

• Options should be safe, convenient and respectful – No medical or legal documentation required – No restriction to segregated facilities

• Workplace violence issues – Employer duty to protect employees from threats of

physical violence, harassment or intimidation

Bathrooms – OSHA Best Practices

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• Federal mandates – OFCCP Executive Order 11246 o Federal contractors must allow transgender employees

to use restrooms and other facilities consistent with their gender identity.

– EEOC position

• State-specific regulations or agency guidance - Colorado - Iowa - Delaware - Vermont - District of Columbia - Washington

Bathrooms – Legal Requirements

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• Don’t make assumptions • Talk with your transgender employee(s)

– Trainings or individual employee discussions? – Respect privacy

• Deal promptly with complaints – No religious exemption for hostile work

environment harassment claims. – Anticipate potential problems; plan responses o Respectful private discussion whenever possible

Handling Co-Workers and Customers

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• Review policies for potential updates – Dress code/appearance standards – Non-discrimination/anti-harassment/diversity – Bathroom/Locker rooms

• Manager/supervisor training – Include transgender issues in regular EEO trainings – Recognition of requests/complaints

• Insurance issues – know your benefits

Proactive Planning

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• Web-based resources – http://www.hrc.org/resources/entry/workplace-gender-

transition-guidelines – http://transgenderlawcenter.org/issues/employment – http://www.glaad.org/transgender/resources

• Identify local groups/trainers before they are needed.

• Communicate with transgender employees – they are your best resource.

Community Resources

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Transgender Protection in Canada

Erin Kuzz

Sherrard Kuzz

29

Explicit Transgender Human Rights Protection Implicit Transgender Human Rights Protection

Jurisdictions • Saskatchewan* • Manitoba* • Ontario • Nova Scotia • Prince Edward Island • Newfoundland and Labrador • Northwest Territories*

• Alberta (Human Rights Code) • British Columbia • Quebec • New Brunswick • Yukon • Nunavut • Canada (Federal)

Prohibited ground

• *Gender Identity: Person’s intrinsic sense of self; and/or

• Gender Expression: Extrinsic attributes

• Sex • Sexual Orientation • Gender • Disability

Effect of implicit/ explicit protection

• No need for litigation to establish that claimant’s discrimination claim covered by other express protected ground

• Unclear what prohibited ground of discrimination is appropriate

Transgender Protection in Canada

30 * Jurisdictions explicitly list only gender identity, not gender identity and gender expression

• Current workplace issues may include: – Gender transition policy – Gendered spaces (washrooms/change rooms) – Administrative record-keeping – Dress codes – Discrimination/harassment o Behaviour of other employees

Workplace Considerations

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• Medical documentation – Do not request medical documentation to

“prove” a gender identity concern o Employee’s consistent assertion of self-

identification should be sole measure of gender o Does not mean medical documentation will

never be required

Accommodation

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• Time off – Not all people who transition will have surgery o This would be a situation where medical

documentation may be requested.

• The transition process – Defer to the transgendered employee – Employee’s preferences constrained by the

limits of undue hardship – Education is critical

Accommodation

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Vanderputten v Seydaco Packaging Corp. – Employer refused to allow transgendered employee to

use the women’s change room; failed to intervene when she reported harassment from supervisors and co-workers; terminated employee, citing insubordination.

– Tribunal: employer discriminated against the employee based on her status as a transgendered employee. o Order: 8 months’ wages, plus $22k in general damages;

ordered to implement anti-discrimination policy and train

Case Study

34

Key Issues Facing Employers Regarding Same-Sex Marriage

and Employment

Michael S. Glassman Dinsmore & Shohl

35

The United States Supreme Court struck down Section 3 of the Defense of Marriage Act (“DOMA”), which had defined “marriage” as a legal union between one man and one woman as husband and wife, and “spouse” as a person of the opposite sex who was a husband or a wife.

United States v. Windsor, 570 U.S. 12 (June 26, 2013)

36

• The United States Supreme Court held that states may not deny same-sex couples the right to marry.

• Obergefell holding is broader that the holding in Windsor.

Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2584 (June 26, 2015)

37

• Windsor and Obergefell affect employers’ obligations under the Family and Medical Leave Act (“FMLA”).

• The FMLA allows eligible employees to take leave to care for a family member with a serious health condition. Family member includes an employee’s “spouse.”

• Prior to Windsor, the DOL regulations previously defined under the FMLA regulations as: “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.”

FMLA after Windsor and Obergefell

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Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under state law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either:

1) Was entered into in a State that recognizes such marriages; or 2) If entered into outside of any State, is valid in the place where

entered into and could have been entered into in at least one State.

FMLA Regulation 29 C.F.R. § 825.102

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• Statement from employee • Marriage Certificate • Other reasonable documentation • BE CONSISTENT WITH ALL EMPLOYEES

Proof of Familial Relationship

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Benefits after Windsor and Obergefell

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• Employee Retirement Income Security Act (ERISA)

• Internal Revenue Code • The terms, “spouse” and marriage,” as used in

these statutes include all legally married same-sex spouses, regardless of place of residency (looks at place of celebration)

Federal Regulation of Benefits Post Windsor and Obergefell

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• IRS Notice 2014-19 & IRS Revenue Ruling 2013-17 provide guidance on how qualified retirement plans should treat marriages of same-sex couples.

• Qualified employer-sponsored benefit plans MUST amend definition of “spouse” to include lawful same-sex marriages (also looks at place of celebration).

IRS Notices & Guidance

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• Employer-paid health benefits for same sex-spouses

• Qualified medical expenses for same sex spouse under FSAs, HRAs, and HSAs

• COBRA coverage for same-sex spouse or child of same-sex spouse

Other Types of Benefit Plans

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• ERISA governs many employee benefit plans

• ERISA does not require group health plan to provide health benefits to employees’ spouses (opposite sex or same sex).

• While ERISA will not require a plan to provide same-sex spousal benefits, even if the plan provides for opposite-sex spousal benefits, Title VII prohibition of sex discrimination may.

• However, based on EEOC’s position that Title VII prohibits discrimination in employment on the basis of sexual orientation and Obergefell, a health care plan that covers employees of spouses must cover all spouses, regardless of gender of individuals.

Summary of ERISA/Title VII Requirements

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• Should coverage for domestic partners be offered or continue to be offered?

Coverage of Domestic Partners

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• Bereavement • Leave policies • Evaluate handbooks and other policy manuals

Other Employment Policies

47

Same-Sex Marriage in Canada

Erin Kuzz

Sherrard Kuzz

48

• June 10, 2003 – Halpern v Attorney General of Canada – Ontario became the first jurisdiction in the

Americas to legalize same-sex marriage

• July 20, 2005 – Civil Marriage Act – Same-sex marriage legalized across Canada – Defines civil marriage as “the lawful union of

two persons to the exclusion of all others”

Same-Sex Marriage in Canada

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• Same entitlements as opposite-sex couples – Whether legally married or having common

law marriage status, unlawful to discriminate – Including provision of health or other

workplace benefits o Bereavement leave, family medical leave,

spousal benefits under collective agreements, etc.

Same-Sex Marriage in Canada

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Ontario (Human Rights Commission) v Heintz – Employer was religious organization operating a group

home for developmentally disabled – Required all employees to sign a "Lifestyle and

Morality Statement“ as part of their employment contract prohibiting, among other things, homosexual relationships

– Terminated support worker because she began a same-sex relationship

– Termination unlawful, not a bona fide occupational requirement

Case Study

51

Latest Developments in the Law Regarding Pregnancy

Discrimination

Ashley S. Kelly Arnall Golden Gregory

52

• Pregnancy Discrimination Act (extending protections of Title VII) : – Employer may not discriminate against an

employee on the basis of pregnancy, childbirth, or related medical conditions

– Women affected by pregnancy, childbirth, or related medical conditions shall be treated the same as other persons not so affected but similar in their ability or inability to work

Primary Sources of Law

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• Americans with Disabilities Act and ADAAA – Pregnancy is not a disability on its own – But, pregnant workers may have pregnancy-

related impairments that qualify as disabilities

• Family and Medical Leave Act • Executive Order 13152 • “Break Time for Nursing Mothers” law • Various state and local laws

Primary Sources of Law

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• In 2014, the EEOC issued an Enforcement Guidance on pregnancy discrimination

• Guidance not subject to notice and comment • Widely viewed as overstepping the current legal

precedents – Light duty – Accommodations for even healthy pregnancies

• Only garnered the support of 3 of 5 commissioners

Primary Sources of Law

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• Facts: – Young was UPS driver – Subject to lifting restriction while pregnant – UPS would accommodate lifting restrictions

for drivers who: o Became disabled on job o Lost DOT certifications o Suffered from an ADA disability

Young v. United Parcel Service, Inc. (U.S. March 2015)

56

• Facts (cont’d): – UPS refused to accommodate Young’s

pregnancy-related restriction – Forced to stay home without pay; lost medical

coverage

Young v. United Parcel Service, Inc. (U.S. March 2015)

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• Allegations: – Young was discriminated against based on her

pregnancy – If employer accommodates only a subset of workers with

disabling conditions, pregnant workers must receive the same accommodations, even if others do not

• Holding: – Young’s argument is overreaching; PDA not intended to

grant pregnant workers “most favored nation” status

Young v. United Parcel Service, Inc. (U.S. March 2015)

58

• Holding (cont’d): – Plaintiff can demonstrate pretext with evidence that the

employer’s policies impose a significant burden on pregnant workers and that legitimate nondiscriminatory reasons give rise to inference of discrimination.

– Plaintiff can show that a significant burden exists with evidence that the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers.

– Did not accept 2014 EEOC Guidance

Young v. United Parcel Service, Inc. (U.S. March 2015)

59

• Guidance reissued in June 2015 with revisions to comport with Young

• http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm

• Primary issues – Light duty – Leave – Reasonable accommodation for pregnancy-

related disabilities

• Includes numerous best practices

2015 EEOC Guidance

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• States with laws requiring some sort of reasonable accommodation to pregnant workers include: Alaska, California, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Louisiana, Maryland, Minnesota, Nebraska, New Jersey, North Dakota, Rhode Island, Texas, West Virginia

• Cities include New York City; Philadelphia; and Providence, Rhode Island

State and Local Laws

61

Pregnancy Discrimination in Canada

Erin Kuzz

Sherrard Kuzz

62

• Female employees entitled to take one year of pregnancy/parental leave – Unpaid, but most can collect E.I. benefits

• Employer must return employee to position she held before leave, or to a comparable position if it no longer exists (employment standards legislation) – “Her replacement is doing a better job” doesn’t mean

position no longer exists – Reprisal awards can mean reinstatement, damages, or

both

Pregnancy Discrimination

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• Illegal for an employer to discriminate against a female employee because she is pregnant, was pregnant, has had a baby, or may become pregnant

• Covered by all Canadian human rights legislation – Most ‘implicitly’ under sex

Pregnancy Discrimination

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Shinozaki v Hotlomi Spa – Highly offensive comments during an employee’s

pregnancy regarding appearance & physical attractiveness

– Employer reduced hours and loss of employment – Employer found to have discriminated on the basis of

sex o Ordered to pay $24,000 in damages and lost wages

o Ordered to post notices and provide staff training

Case Study

65

Please Contact our Speakers for More Information

66

Jennifer S. Divine Miller Nash Graham & Dunn Seattle, WA jennifer.divine@millernash.com Michael S. Glassman Dinsmore & Shohl Cincinnati, OH michael.glassman@dinsmore.com

Daniel H. Handman Hirschfeld Kraemer Santa Monica, CA dhandman@hkemploymentlaw.com Ashley S. Kelly Arnall Golden Gregory Atlanta, GA ashley.kelly@agg.com

Please Contact our Speakers for More Information

67

Erin Kuzz Sherrard Kuzz Toronto, Ontario ekuzz@sherrardkuzz.com Shelby S. Skeabeck Shawe & Rosenthal Baltimore, MD skeabeck@shawe.com

Parker E. Thoeni Shawe & Rosenthal Baltimore, MD pet@shawe.com

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