Wyatt Employment Law Report

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Second Circuit Recognizes Sexual Orientation Discrimination as Subset of Sex Discrimination under Title VII

By Courtney Samford

The U.S. Court of Appeals for the Second Circuit recently held that Title VII prohibits discrimination on the basis of sexual orientation in Zarda v. Altitude Express, No. 15-3775 (2d Cir. 2018).  With this decision, the Second Circuit joins the Seventh Circuit as the second court to recognize sexual orientation as a protected class under federal law.

Donald Zarda was a skydiving instructor who claimed that he was terminated from his position after he told a client that he was gay.  He sued his former employer and its owner, alleging that Title VII and New York law prohibit discrimination based on sexual orientation.  The lower court granted partial summary judgment in favor of the employer on the ground that Title VII does not protect gay and lesbian employees.  Zarda died in a skydiving accident prior to trial, so Continue reading

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EEOC Weighs In On Bathroom Issue for Transgender Employees

By Michelle Wyrick

Following recent news reports about Target’s bathroom controversy and North Carolina’s bathroom law, the U.S. Equal Employment Opportunity Commission (“EEOC”) has issued a Fact Sheet outlining its views on bathroom access rights for transgender employees under Title VII of the Civil Rights Act.  You can view the Fact Sheet here.

According to the EEOC, Title VII’s prohibition on sex discrimination also prohibits discrimination based on gender identity and sexual orientation.  Consequently, denying a transgender employee access to a common restroom corresponding to the employee’s gender identity constitutes sex discrimination.  An employer cannot require an employee to provide proof of surgery or any other medical procedure in order to use a particular restroom.  Nor can an employer avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom (although an employer can make a single-user restroom available to all employees who choose to use it).  The hostility or discomfort of other employees cannot overcome the right of a transgender employee to use the restroom corresponding with his or her gender identity.  Moreover, contrary state law is no defense.  Sorry, North Carolina.

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EEOC Files First Title VII Suits Alleging Discrimination Based on Sexual Orientation

By Michelle High

discriminationOn Tuesday, March 1, 2016, the Equal Employment Opportunity Commission (“EEOC”) filed two sex discrimination lawsuits in federal court that are premised upon the Commission’s position that sexual orientation discrimination is a violation of Title VII of the Civil Rights Act of 1964.

The first lawsuit filed by the EEOC was filed in the United States District Court for the Western District of Pennsylvania against Scott Medical Health Center.  In the suit, the EEOC alleges that a gay male employee was subjected to harassment because of his sexual orientation and/or because he did not conform to the employer’s gender-based expectations, preferences, or stereotypes. The employee’s immediate supervisor knew that Continue reading

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EEOC Finds That Discrimination Based on Sexual Orientation is Prohibited by Title VII

By Courtney Ross Samford

On July 16, 2015, the EEOC announced that sexual orientation is included within Title VII’s prohibition against sex discrimination in Complainant v. Foxx, 2015 WL 4397641 (EEOC July 16, 2015).  Foxx worked as an air traffic control specialist in Miami, Florida.  He claimed that he was discriminated against in violation of Title VII when he was not selected for a permanent promotion based on his sexual orientation.  Foxx alleged that one of his supervisors said, “We don’t need to hear about that gay stuff” in response to a story about his male partner, and referred to his relationship as a “distraction in the radar room” on numerous occasions.  The EEOC found that the complaint properly stated a claim of sex discrimination because “sexual orientation is inherently a ‘sex-based consideration.’”

In the decision, the EEOC further opined that “[s]exual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”  As such, “[a]n employee could show that the sexual orientation discrimination he or she experienced was sex discrimination because it involved treatment that would not have occurred but for the individual’s sex; because it was based on the sex of the person(s) the individual associates with; and/or because it was premised on the fundamental sex stereotype, norm, or expectation that individuals should be attracted only to those of the opposite sex.”  This expands the EEOC’s previous interpretation that Title VII only encompassed discrimination based on an employee’s failure to conform to gender stereotypes.

While the EEOC’s decision is momentous for the LGBT community, it is not binding on state or federal courts.  Even if courts choose not to adopt the EEOC’s expansive definition of sex discrimination, employers should re-evaluate their current policies to avoid compliance issues with the EEOC.

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Are Transgender Individuals Protected By Title VII?

By Michelle D. Wyrick

The short answer is yes, for federal employees, and possibly, for others.  In Macy v. Eric Holder, Agency No. ATF-2011-00751, 2012 WL 1435995, the EEOC decided that a transgender applicant’s complaint of discrimination based on gender identity was cognizable under Title VII of the Civil Rights Act of 1964.  In Macy, a transgender applicant for a ballistics forensic technician position with the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) claimed that she was not hired because of her transgender status.  She alleged that she was initially offered the position pending completion of a background check but that after she informed the ATF of her transgender status, her offer of employment was rescinded.  Macy then filed a formal complaint with the ATF, alleging sex discrimination based on her gender identity and sex stereotyping.  The ATF refused to process her claim based on her gender identity under the EEOC regulations.  Macy appealed to the EEOC.  The EEOC found that Macy’s claim should have been processed because “claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition ….” 

The EEOC’s decision is noteworthy for a few reasons.  First, it is the first ruling from the EEOC that specifically extends Title VII protection to claims based on transgender status.  Second, although the decision applies only to federal employers, the EEOC’s interpretation may be used to extend the reach of Title VII to non-federal employers as well.  Although some courts have previously concluded that “a label, such as ‘transsexual’ is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity,” Smith v. City of Salem, 378 F.3d 566, 574-75 (6th Cir. 2004), other courts have disagreed, finding that “discrimination against a transsexual based on the person’s status as a transsexual is not discrimination because of sex under Title VII.”  Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1221 (10th Cir. 2007).  The EEOC’s decision in Macy may be used to influence even those courts that have interpreted Title VII to protect transgender individuals under a theory of sex stereotyping to construe Title VII more broadly.  As the EEOC opined, “evidence of gender stereotyping is simply one means of proving sex discrimination.”  According to the EEOC’s decision in Macy, “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on … sex,’ and such discrimination therefore violates Title VII.”

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Supreme Court Issues Its Long-Awaited Class Action Decision in Dukes v. Wal-Mart Stores, Inc.

By George J. Miller

On June 20, 2011, in addressing what Justice Antonin Scaliacalled, “one of the most expansive class actions ever,” the U.S. Supreme Court issued its much anticipated decision in Wal-Mart Stores, Inc. v. Dukes. The Court held that the lower federal courts had improperly certified the case–filed by just three current or former female Wal-Mart employees in California–as a nationwide class action of some 1.5 million women. 

The three female plaintiffs alleged that the company discriminated against them on the basis of their sex by denying them equal pay or promotions, in violation of Title VII of the Civil Rights Act of 1964.  Each of the three made different allegations about how their male managers had treated them, such as being demoted or being yelled at.  However, they alleged that the discrimination to which they were subjected was common to all of Wal-Mart’s female employees, and they sought to have the case certified as a class action on behalf of, “‘[a]ll women employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have been or may be subjected to Wal-Mart’s challenged pay and management track promotions policies and practices.” 

The plaintiffs did not allege that Wal-Mart has an express corporate policy against the advancement of women.  Rather, they claimed that their local managers’ discretion over pay and promotions was exercised disproportionately in favor of men, leading to an unlawful disparate impact on female employees.  According to the Court, the plaintiffs’ main theory of the case was that “a strong and uniform ‘corporate culture’ permits bias against women to infect, perhaps subconsciously, the discretionary decision making of each one of Wal-Mart’s thousands of managers—thereby making every woman at the company the victim of one common discriminatory practice.”

The plaintiffs sought injunctive and declaratory relief, punitive damages, and back pay. 

According to the Court, “[t]he crux of this case is commonality—the rule requiring a plaintiff to show that ‘there are questions of law or fact common to the class.'”  “Commonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury.'”  The Court ultimately concluded that “[b]ecause [the plaintiffs] provide no convincing proof of a companywide discriminatory pay and promotion policy, we have concluded that they have not established the existence of any common question.” 

In something of an endorsement for de-centralized human resources management, Justice Scaliawrote: “The only corporate policy that the plaintiffs’ evidence convincingly establishes is Wal-Mart’s ‘policy’ of allowing discretion by local supervisors over employment matters.  On its face, of course, that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices. It is also a very common and presumptively reasonable way of doing business—one that we have said “should itself raise no inference of discriminatory conduct.”

This part of the Court’s opinion was rendered by a vote of 5 to 4, with Justices Kennedy, Thomas and Alito, and Chief Justice Roberts, joining Justice Scalia in the majority, and Justices Ginsburg, Sotomayor, Kagan, and Breyer in the minority.  Justice Ginsburg wrote a dissenting opinion. 

However, in another part of the opinion, the Court was unanimous in holding that the plaintiffs’ claims for back pay could not be certified under Rule 23(b)(2) of the Federal Rules of Civil Procedure–which provides for certification when non-monetary injunctive or declaratory relief is appropriate respecting the class as a whole–because claims for back pay are necessarily individual in nature, and in this case they were not merely incidental to the request for injunctive and declaratory relief.  The Court said that it is important for, “plaintiffs with individual  monetary claims to decide for themselves whether to tie their fates to the class representatives or go it alone,” and that, “Wal-Mart is entitled to individualized determinations of each employee’s eligibility for backpay.” 

For these reason, the Court held that such claims for back pay must be brought under Rule 23(b)(3), which provides greater procedural protections for parties, including, importantly, the right of class members to receive notice of the action and to opt out of the action.

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Supreme Court to Review Major Class Action Case

By Edwin  S. Hopson

On December 6, 2010, the U.S. Supreme Court announced that it had granted certiorari in the Dukes v. Wal-Mart case pending in California.  The Dukes case, according to published reports, is the largest Rule 23 class ever certified in the employment law arena. The plaintiffs successfully sought in the district court certification of a nationwide class involving claims of sex discrimination.  The U.S. Court of Appeals for the Ninth Circuit had affirmed the district court’s action but it appears the U.S. Supreme Court will have the last word.