Articles Posted in Gender Identity/Expression Discrimination

Gender identity and gender expression discrimination violate New York City’s antidiscrimination law, but the question of whether federal law applies to this type of discrimination remains unsettled nationwide. Some federal courts have ruled that gender identity discrimination is a form of sex discrimination, which is prohibited by Title VII of the Civil Rights Act of 1964. Other courts have concluded that Title VII does not apply since it does not mention “gender identity discrimination” by name. In the midst of this uncertainty, a series of lawsuits is challenging the White House’s policy banning transgender individuals from serving in the U.S. military. These lawsuits rely on constitutional arguments, such as violations of the Equal Protection Clause of the Fourteenth Amendment, instead of Title VII or similar statutes. None of these cases have reached a conclusion, but at least two courts recently ruled that the government must produce information about the “deliberative process” that led to the policy. Karnoski, et al v. Trump, et al, No. 2:17-cv-01297, order (W.D. Wash., Jul. 27, 2018); Stone, et al v. Trump, et al, No. 1:17-cv-02459, mem. op. (D. Md., Aug. 14, 2018). If you believe you have been discriminated against due to your gender identity or expression at work, reach out to a New York employment attorney to discuss the facts of your situation.

The current dispute involves a directive from the White House, issued in July 2017 via the social media platform Twitter, to prohibit transgender individuals from serving in the U.S. military. This reportedly took the Department of Defense, among many others, by surprise. Numerous lawsuits were filed within weeks of the announcement. The Karnoski and Stone lawsuits referenced above were filed in August 2017. They sought preliminary injunctions against the enforcement of the new policy, which courts granted in both cases. Causes of action included alleged violations of the Due Process Clause of the Fifth Amendment, the Equal Protection Clause, and the Free Speech Clause of the First Amendment.

As the lawsuits proceeded to discovery, the plaintiffs requested information about how the White House developed the policy. They specifically cited a tweet from the President asserting that he had “consult[ed] with my Generals and military experts” prior to announcing the policy. The White House sought to withhold information responsive to these requests under the “deliberative process privilege,” a common law principle that is often cited in response to requests under the Freedom of Information Act. See 5 U.S.C. § 552(b)(5). The Department of Justice describes the privilege as necessary to enable “candid discussion needed for optimum decisionmaking inside government agencies,” but it also acknowledges that the government’s stated policy is to provide as much information to the public as possible.
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Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex and other factors. Court decisions have expanded Title VII’s definition of sex discrimination to include sexual harassment. Some of these decisions are now leading courts around the country to expand Title VII protection to discrimination on the basis of sexual orientation and gender identity. New York City discrimination law, unlike federal law, expressly includes both of these as protected categories. Two Supreme Court decisions on sexual harassment have played a significant role in decisions relating to sexual orientation and gender identity discrimination. One decision, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), held that discrimination based on “sex stereotyping” violates Title VII. This year marks the 20th anniversary of the other decision, Oncale v. Sundowner Offshore Services, Inc. (“Oncale II”), 523 U.S. 75 (1998), which held that same-sex sexual harassment is also covered by Title VII.The Supreme Court received the Oncale case from the Fifth Circuit Court of Appeals, which had ruled that Title VII does not apply to harassment between members of the same sex. Oncale v. Sundowner Offshore Services, Inc. (“Oncale I”), 83 F. 3d 118 (5th Cir. 1996). The Fifth Circuit held that it was bound by its own prior decision in Garcia v. Elf Atochem North America, 28 F.3d 446 (5th Cir. 1994). It noted, however, that other courts had reached different conclusions. A concurring opinion from a Second Circuit justice, for example, stated that “harassment is harassment regardless of whether it is caused by a member of the same or opposite sex.” Oncale I at 120 n. 3, quoting Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 148 (2d Cir.1993) (Van Graafeiland, C.J., concurring).

The plaintiff in Oncale was part of an eight-man crew on an oil platform in the Gulf of Mexico. At least three members of the crew, including “the crane operator, and…the driller, [who] had supervisory authority,…forcibly subjected [him] to sex-related, humiliating actions…in the presence of the rest of the crew.” Oncale II at 77. He eventually sued for sexual harassment under Title VII.

A unanimous Supreme Court ruled in the plaintiff’s favor. Writing for the court, Justice Scalia stated that there was no “categorical rule excluding same-sex harassment claims from the coverage of Title VII.” Id. at 79. He distinguished the case from claims involving alleged sexual orientation discrimination, finding that “harassing conduct need not be motivated by sexual desire to support an inference of [sex] discrimination.”

New York City employment discrimination laws include express prohibitions against discrimination because of gender identity or gender expression. At the federal level, whether Title VII of the Civil Rights Act of 1964 contains similar protections depends on where the claim arises. Prior to 2017, the U.S. Department of Justice (DOJ) held that gender identity is covered by Title VII’s sex discrimination provisions. It filed suit in 2015 on behalf of a transgender woman alleging gender identity discrimination. United States v. Southeastern Okla. State Univ., No. 5:15-cv-00324, complaint (W.D. Okla., Mar. 30, 2015). The following year, officials from multiple states sued the federal government over certain policies on transgender rights. State of Texas, et al. v. United States, et al., No. 7:16-cv-00054, complaint (N.D. Tex., May 25, 2016). The two cases became intertwined as the issue of transgender rights gained attention in 2017.

Some courts have held that gender identity discrimination falls under Title VII’s prohibition on sex discrimination, finding it to be “because of sex,” as defined by the statute. They often cite a U.S. Supreme Court decision finding that “sex stereotyping” constitutes sex discrimination under Title VII. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Gender identity discrimination, the argument goes, is sex discrimination because an individual does not conform to stereotypes about a particular gender. Other courts have held that, absent express inclusion of gender identity as a protected category, using those or similar words, it is not covered by the statute.

The DOJ filed suit on behalf of a complainant who began working at an Oklahoma university in 2004, when she “presented as a man and went by a traditionally male name.” Southeastern, complaint at 4. She notified the university of her intent to transition to a female identity in 2007. She alleged that, once this process began, and after it was complete, her employer treated her differently, and she was ultimately denied tenure because of her gender identity. The court ruled in July 2015 that the complainant is part of a protected class because of “sex stereotyping based on a person’s gender non-conforming behavior.” Southeastern, mem. op. at 5 (Jul. 10, 2015). A jury entered a verdict in the complainant’s favor in late 2017 and awarded her $1.165 million in damages.
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New York City gender discrimination laws prohibit discrimination on the basis of gender identity and gender expression, but protections at the federal level for transgender and gender-nonconforming workers are far less certain. The United States Armed Forces, which are subject to their own separate set of laws, allowed overt discrimination on the basis of both sexual orientation and gender identity until quite recently. A memorandum issued by the White House in August 2017, however, bluntly directed the Department of Defense (DOD) and the Department of Homeland Security (DHS) to reinstitute the prior policy of excluding transgender individuals from military service. Lawsuits soon followed, and after two judges ruled in the plaintiffs’ favor against the ban on transgender soldiers, the Department of Justice (DOJ) stated that it would not appeal the decisions. The DOD later announced that transgender individuals could begin enlisting again on January 1, 2018.

In 1993, Congress enacted the “Don’t Ask Don’t Tell” (DADT) policy, previously found at 10 U.S.C. § 654. A servicemember could be removed from service under this policy if they engaged in or solicited “a homosexual act or acts”; if they stated that they were “a homosexual or bisexual, or words to that effect”; or if they “married or attempted to marry” someone of their “same biological sex.” 10 U.S.C. § 654(b). Congress repealed DADT in 2010. The DOD began the process of lifting restrictions on transgender servicemembers in July 2015, and it officially lifted the ban in June 2016.

A new administration moved into the White House in January 2017 and quickly began reversing policies enacted by the prior administration relating to gender identity and gender expression. The memorandum reversing the policy on transgender servicemembers, issued on August 25, 2017, asserted that the DOD had failed to conduct a sufficient review of potential negative effects. It directed the DOD and DHS to cease all activities relating to compliance with the revised policy—with specific mention of “sex-reassignment surgical procedures for military personnel”—and to return to the policy in effect prior to June 2016. The memorandum would have been controversial on its own terms, but the president’s use of Twitter to announce the ban added to the controversy.

New York City has one of the most robust anti-discrimination laws in the country. Indeed, in New York City, employers cannot discriminate based on a number of factors, including an applicant’s gender, sexual orientation, or partnership status. Despite the vigorous protections, employers continue to discriminate, especially against transgender individuals. In fact, the U.S. government openly discriminated against transgender individuals until very recently.Back in June of last year, President Trump announced his intention to ban transgender individuals from serving in the nation’s armed services. Since the announcement of that upcoming regulation, courts across the country have seen numerous lawsuits filed in an attempt to preclude the Trump administration from putting the regulations into effect.

Several of those lawsuits resulted in federal judges ordering that the policy not go into effect, based on the fact that it likely violates the Equal Protection Clause of the United States Constitution. According to a recent news report, the Trump administration has decided not to appeal the rulings, and it has begun to allow transgender individuals to enlist as of January 1, 2018.

New York Gender Expression Discrimination

As noted above, under the New York City Human Rights Commission, it is against the law to discriminate against an individual based on their expressed gender.

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The terms “gender identity” and “gender expression,” in the context of New York City gender identity discrimination law, encompass a spectrum of factors related to gender and self-image. New York City has included these factors in its employment discrimination law since 2002. A federal court did not find in favor of a gender identity discrimination claim until 2008. The landmark decision in Schroer v. Billington, 577 F.Supp.2d 293 (D.D.C. 2008), is worth revisiting.

“Gender identity” refers to a person’s sense of their own gender, whether or not it matches their biological sex. “Gender expression” consists of how a person presents their gender, such as through their name, clothing, and behavior. A transgender person is someone who identifies as a different gender than the biological sex assigned to them at birth, and who might express themselves in accordance with that gender identity. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex and other factors. 42 U.S.C. § 2000e-2(a)(1). A U.S. Supreme Court ruling recognizing “sex stereotyping” as a form of sex discrimination under Title VII, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), has led some courts and administrative agencies to extend Title VII protections to gender identity and gender expression claims.

The plaintiff in Schroer was a transgender woman who transitioned to a female gender identity and expression as an adult. Prior to her transition, she served in the U.S. Armed Forces for 25 years, retiring in January 2004 with the rank of colonel. She held a very high-level security clearance at the time of her retirement, due to her anti-terrorism work with the U.S. Special Operations Command.

The past year has brought considerable uncertainty in many aspects of employment discrimination law, as the new administration in the White House rolls back measures enacted by the previous administration. Protections against gender identity discrimination under federal statutes like Title VII of the Civil Rights Act of 1964 have received particular attention. The statute prohibits employment discrimination on the basis of sex and other factors. New York City employment discrimination law expressly includes gender identity and expression. At the federal level, however, the protection is based largely on inferences from the statutory text. The Equal Employment Opportunity Commission (EEOC) has ruled that Title VII’s prohibition on sex discrimination encompasses discrimination based on gender identity and gender expression, but the Department of Justice (DOJ) now takes the opposite position. A memorandum issued by the Attorney General (AG) in October 2017 overrules a 2014 memorandum from the previous occupant of that office.

Title VII prohibits a range of discriminatory acts by employers against an employee “because of such individual’s…sex.” 42 U.S.C. § 2000e-2(a)(1). The EEOC has concluded that this includes “gender discrimination, and not just discrimination on the basis of biological sex.” Macy v. Holder, Appeal No. 0120120821, decision (EEOC, Apr. 20, 2012). The agency found that Title VII allows claims for “discrimination based on gender identity, change of sex, and/or transgender status.” Id. Laws at the state and municipal levels around the country include express provisions addressing these factors, often encompassed by the terms “gender,” “gender identity,” and “gender expression.” See, e.g., N.Y.C. Admin. Code § 8-102(23).

In December 2014, the DOJ issued a memorandum addressing gender identity claims under Title VII. The memorandum does not quite endorse the view that Title VII sex discrimination includes gender identity and expression. Instead, it states that the DOJ will not argue against allowing such claims under Title VII. The overall effect was probably about the same, if not as satisfying as a full endorsement. The memorandum discusses how past court rulings support the inclusion of gender identity and expression, noting the U.S. Supreme Court’s ruling on a claim of discrimination by “sex stereotyping” in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). After a federal court in Washington, D.C. ruled in favor of a worker’s gender identity discrimination claim, Schroer v. Billington, 577 F.Supp.2d 293 (D.D.C. 2008), several federal agencies began recognizing gender identity discrimination as sex discrimination.

Employment discrimination based on gender identity or gender expression remains an uncertain legal matter in many parts of the country, with many seemingly contradictory interpretations of existing law. Federal law does not expressly recognize gender identity and gender expression as protected categories, but the Equal Employment Opportunity Commission (EEOC) has interpreted the prohibitions on sex discrimination in Title VII of the Civil Rights Act of 1964 to include gender identity and expression. The Department of Justice (DOJ), on the other hand, has recently changed its position to the view that Title VII does not apply to these categories. New York gender identity discrimination law protects transgender workers from discrimination at the state level, as well as in many municipalities. A lawsuit filed earlier this year by a transgender woman in a Michigan state court appears to be seeking to apply the EEOC’s position to state law, arguing that sex discrimination inherently includes gender identity and expression. Reed v. McDonald’s Corp., et al., No. 17-007889-CD, complaint (Mich. Cir. Ct., Wayne Cty., May 25, 2017).

The New York State Human Rights Law prohibits employment discrimination on the basis of “sex,” while the New York City Human Rights Law covers discrimination based on “gender.” N.Y. Exec. L. § 296(1)(a), N.Y.C. Admin. Code § 8-107(1)(a). Both statutes define these terms to include gender identity, including when that identity does not match the gender assigned to an individual at birth, and gender expression. 9 CRR-NY 466.13(c), N.Y.C. Admin. Code § 8-102(23).

Federal employment discrimination law does not expressly include gender identity or gender expression in its definition of “sex.” The EEOC, however, has interpreted Title VII as applying to discrimination based on transgender status, citing court opinions regarding stereotypes about sex and gender. See, e.g., Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821 (Apr. 20, 2012). This interpretation of Title VII now conflicts with the DOJ’s view of the statute. Attorney General Eric Holder issued a memorandum in December 2014 directing U.S. Attorneys and DOJ agency heads to apply a similar reading of Title VII to the EEOC. This interpretation was revoked in a memo issued on October 4, 2017.

Gender identity and gender expression are not specifically identified as protected categories in federal anti-discrimination law. New York City’s employment anti-discrimination statute includes both gender identity and gender expression, making it one of the most extensive such laws in the country. Despite a variety of recent setbacks at the federal level, caselaw has been gradually developing in a direction that offers some hope for the view that gender identity and gender expression are already protected by federal prohibitions on sex discrimination. A U.S. Supreme Court decision finding that Title VII of the Civil Rights Act of 1964 prohibits “sex stereotyping” could provide a basis for claims based on gender identity and expression. A New York gender discrimination case filed in a Manhattan federal court seeks confirmation of an arbitration award finding sex discrimination, based in part on sex stereotyping. Berger v. Kargo Global, Inc., No. 1:17-cv-04288, petition (S.D.N.Y., Jun. 8, 2017).Title VII states that it is “an unlawful employment practice” to discriminate against an employee or job applicant “because of…sex” or other factors. 42 U.S.C. § 2000e-2(a). The definition of “because of sex” has expanded over the years, through both legislation and court decisions, to include more specific acts like sexual harassment and pregnancy discrimination. See, e.g. id. at § 2000e(k). The Supreme Court has also held that sex discrimination under Title VII includes discrimination on the basis of stereotypes about how members of a particular gender should, or should not, behave. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

Justice Brennan, writing for the majority in Price Waterhouse, offered the example of “[a]n employer who objects to aggressiveness in women” but who “require[s] this trait” in employees. Id. at 251. This would put female employees “in an intolerable and impermissible Catch-22,” since they would risk losing their job no matter what they do. Id. Subsequent court decisions have indicated that unlawful sex stereotyping can involve both female employees deemed insufficiently feminine and male employees deemed insufficiently masculine. This analysis could also apply to transgender and gender-nonconforming employees, although no clear legal precedent currently exists.

The defendant in Berger, an advertising company, hired the plaintiff in August 2012 as Vice President of Sales for the Midwest region. According to the arbitrator’s decision, she excelled in this position, and she alleged that she was individually responsible for about half of the company’s increase in annual revenue from about $5 million to $135 million in four years. Despite this track record, the defendant terminated the plaintiff and, claiming that the termination was for cause, denied her benefits to which she would have been entitled under her employment contract.

New York City employment statutes continue to lead much of the country in the scope of protection provided for workers, particularly in areas like gender identity and gender expression. Employment laws and regulations at the federal level, however, seem to be moving in the opposite direction. Two events of the past few months affecting gender identity discrimination might offer an idea of the legal challenges ahead. The new administration in the White House has left in place an executive order (EO) issued by former President Obama dealing with sexual orientation and gender identity discrimination, but it has rescinded another EO that facilitated enforcement of that order. An unexpected announcement regarding transgender people serving in the military, meanwhile, has led to at least one lawsuit in Washington.

Federal Contracting

President Obama issued EO 13672 in July 2014. 79 Fed. Reg. 42971 (Jul. 23, 2014). The order amended existing prohibitions on various forms of employment discrimination by federal contractors, adding sexual orientation and gender identity as protected categories. Some provisions took effect immediately, while others took effect in 2015. Shortly after issuing that EO, the White House issued EO 13673, entitled “Fair Pay and Safe Workplaces,” which outlined procedures for ensuring compliance by federal contractors. 79 Fed. Reg. 45309 (Aug. 5, 2014); see also 81 Fed. Reg. 58807 (Aug. 26, 2016), 81 Fed. Reg. 58653 (Oct. 25, 2016). This EO required contractors to make disclosures regarding recent judgments or other adjudications under various statutes, as well as pending complaints.

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