Articles Posted in Gender Identity/Expression Discrimination

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.

In April 2016, a federal appellate court issued a ruling that had the potential to support New York gender identity employment discrimination claims under federal law. G.G. ex rel. Grimm v. Gloucester Cty. School Bd., 822 F.3d 709 (4th Cir. 2016). The court held that the federal statute addressing sex discrimination in education applied to a claim of discrimination on the basis of gender identity. Employment laws in New York City and other jurisdictions expressly prohibit gender identity and gender expression discrimination, but federal employment law does not mention it. The U.S. Supreme Court granted certiorari in the case last August. Earlier this year, it vacated the appellate court’s ruling and remanded the case, noting that the lower court’s decision relied on a federal administrative interpretation of the law that had since been revoked. The Supreme Court may still hear the case, but only after the appellate court reviews it again.

Under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., it is unlawful for employers to discriminate on the basis of sex and other factors. Several federal courts, at both the district and the appellate levels, have ruled that Title VII’s sex discrimination provisions apply to gender identity and gender expression claims. This is also the position of the Equal Employment Opportunity Commission (EEOC), based on its own rulings. The U.S. Supreme Court, however, has not ruled on this question.

The statute at issue in G.G. is Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. Much like Title VII, Title IX’s provisions on sex discrimination make no specific mention of gender identity or gender expression. The G.G. case focused on a regulation requiring schools to provide “comparable facilities,” including restrooms, to students of different sexes. 34 C.F.R. § 106.33. In a 2015 opinion letter, the U.S. Department of Education (DOE) interpreted this rule to mean that schools must allow transgender students to use the restroom that matches their gender identity. The U.S. Department of Justice began enforcing this requirement in the same year, and the two departments issued a joint guidance document in 2016.

Gender identity and gender expression are protected categories under New York City’s employment discrimination statute. Federal law does not expressly address this type of discrimination, and the Supreme Court has not ruled on the issue. Several federal courts have taken steps toward recognizing this as a federal claim, and the Equal Employment Opportunity Commission (EEOC) has recognized it as a valid claim in its own rulings. Recent changes in Washington, however, have raised concerns about the EEOC. After the EEOC appealed the dismissal of a gender identity discrimination lawsuit to the Sixth Circuit, the complainant filed a motion to intervene on her own behalf in early 2017. She cited concern “that the EEOC may no longer adequately represent her interests going forward.” EEOC v. R.G. & G.R. Harris Funeral Homes, No. 16-2424, motion to intervene (6th Cir., Jan. 26, 2017). The court granted the motion in March.

The U.S. Supreme Court has held that Title VII of the Civil Rights Act of 1964 prohibits discrimination that derives from an employee or job applicant failing to conform to common stereotypes about how people of their particular sex or gender should look or act, also known as “sex stereotyping.” Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Several federal courts and the EEOC have cited Price Waterhouse in ruling that gender identity and gender expression discrimination constitute unlawful sex stereotyping under Title VII. See, e.g., Macy v. Holder, App. No. 0120120821, dec. (EEOC, Apr. 20, 2012).

The complainant in R.G. & G.R. Harris, a transgender woman, alleged discrimination on the basis of gender identity and expression. The complainant informed the defendant of her intention to transition from male to female after several years of employment there. Although she reportedly stated that she would abide by the dress code for female employees, the defendant fired her several weeks later. The EEOC filed suit the following year.

The rights of transgender people have been the subject of multiple victories and setbacks in the past few years. With regard to protections against employment discrimination, New York City law expressly includes gender identity and gender expression as protected categories, as do laws in many other cities and states. At the federal level, however, Title VII of the Civil Rights Act of 1964 does not specifically mention gender identity or gender expression. Many advocates for transgender rights argue that certain judicial interpretations of Title VII’s prohibition on sex discrimination apply its protections to both sexual orientation and gender identity and expression. This argument has had some success at the federal appellate level with regard to sexual orientation. The Equal Employment Opportunity Commission (EEOC) has adopted this view for both types of discrimination. At least one case currently pending in a Circuit Court of Appeals is making a similar argument about the applicability of Title VII to gender identity and gender expression.

Justice William Brennan interpreted Title VII as a clear statement by Congress “that sex, race, religion, and national origin are not relevant to the selection, evaluation, or compensation of employees.” Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989). The plaintiff in that case claimed that she was denied partnership because she failed to conform to common stereotypes about how women should behave. The evidence included a statement by a partner advising her to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Id. at 235. The court held that this sort of “sex stereotyping” was an unlawful form of sex discrimination under Title VII.

Many advocates and judicial opinions have noted the resemblance of sexual orientation discrimination to the type of “sex stereotyping” addressed in Price Waterhouse. Gay and lesbian employees, the argument goes, do not fit the stereotype of whom individuals should love. Some courts have expressed sympathy for this argument, while also stating that their hands are tied without further action by Congress. See, e.g. Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 265 (3d Cir. 2001). Although it has yet to receive much judicial scrutiny, the applicability of the “sex stereotyping” argument to gender identity and expression is not hard to see.

Sexual harassment in the workplace violates city, state, and federal employment laws in New York City. Under all of these laws, sexual harassment is viewed as a type of sex discrimination. An underlying assumption in many, but certainly not all, cases is that the perpetrator is attracted to the complainant. Employment laws in New York City protect a worker in this sort of scenario, but what about when an adverse employment action is based on a lack of attraction, or other purported concerns about an employee’s appearance? To put that in blunter terms, can an employer fire an employee for being “ugly”?

No employment statute in New York expressly mentions appearance, but other categories might apply in some situations. The New York City Human Rights Law (NYCHRL) prohibits employment discrimination on the basis of sex, gender identity or gender expression, age, disability, and other factors. The New York State Human Rights Law (NYSHRL) provides many of the same protections. Title VII of the federal Civil Rights Act of 1964 lists fewer protected categories, but the U.S. Supreme Court has established fairly broad protections under the umbrella of sex discrimination. The Americans with Disabilities Act (ADA) of 1990 and the Age Discrimination in Employment Act (ADEA) of 1967 also address employment discrimination.

Addressing this issue from a legal standpoint is difficult, since it is largely subjective. Beauty, as they say, is in the eye of the beholder, and some employers have successfully argued that appearance standards are a bona fide occupational qualification exempting them from discrimination laws. This has occurred in cases of men applying at restaurants that only hire female servers and women fired for gaining too much weight. All of these cases arguably involve standards of attractiveness or lack thereof. Several courts have also held that firing a female employee for being too attractive—which borders on an argument that termination was necessary to avoid sexual harassment—is not unlawful sex discrimination. Still, termination for being “ugly” might violate existing laws in certain situations.

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New York City’s anti-discrimination statute protects workers against discrimination based on gender identity and gender expression, but these protections are far less certain in other jurisdictions and under federal laws. The Equal Employment Opportunity Commission (EEOC) has taken the position that the sex discrimination provisions of Title VII of the Civil Rights Act of 1964 cover gender identity discrimination, and some federal courts have also reached this conclusion. Other courts have specifically rejected this view. One federal district court took the unusual step of rejecting a gender identity discrimination claim on the basis of the federal “religious freedom” statute. EEOC v. R.G. & G.R. Harris Funeral Homes, No. 2:14-cv-13710, order (E.D. Mich., Aug. 18, 2016). While the case is likely to be reversed on appeal, it is important to understand the development of the law on this issue.

Title VII prohibits employment discrimination on the basis of various factors, including sex. 42 U.S.C. § 2000e-2(a). The Supreme Court has held that an employer engages in unlawful sex discrimination when it makes decisions based on “sex stereotyping,” which includes “evaluat[ing] employees by assuming or insisting that they matched the stereotype associated with their group.” Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989). This decision has influenced numerous cases dealing with gender identity discrimination.

The EEOC has generally taken the view that Title VII’s prohibition on sex discrimination includes gender identity. See Macy v. Holder, Appeal No. 0120120821, decision (EEOC, Apr. 20, 2012). The Sixth Circuit Court of Appeals, whose jurisdiction includes the court that decided R.G. & G.R. Harris Funeral Homes, has held that Price Waterhouse “eviscerated” narrower interpretations of “sex discrimination” under Title VII. Smith v. City of Salem, 378 F.3d 566, 573 (6th Cir. 2004); see also Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005).

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