It all began with Ann Hopkins. The idea that an employer’s discriminatory concept of how a person of a particular gender should act, appear and be perceived by others was cemented into the law in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). There, the U.S. Supreme Court ruled that the failure to make Ms. Hopkins partner because she was not feminine enough led to the accounting firm being liable for sex discrimination.
That same logic applies today when the Equal Employment Opportunity Commission announced on March 1 that it had filed suit against two private employers for gender discrimination. According to the EEOC press release, in its suit against Scott Medical Health Center, a gay male employee was subjected to harassment because of his sexual orientation. The agency said that the employee’s manager repeatedly referred to him using various anti-gay epithets and made other highly offensive comments about his sexuality and sex life. When the employee complained to the clinic director, the director responded that the manager was “just doing his job,” and refused to take any action to stop the harassment, according to the suit. After enduring weeks of such comments by his manager, the employee quit rather than endure further harassment.
In its suit against IFCO Systems, EEOC charged that a lesbian employee was harassed by her supervisor because of her sexual orientation. Her supervisor made numerous comments to her regarding her sexual orientation and appearance, such as “I want to turn you back into a woman,” and “You would look good in a dress,” according to the suit. At one point, the supervisor blew a kiss at her and circled his tongue at her in a suggestive manner, EEOC alleged. The employee complained to management and called the employee hotline about the harassment. IFCO fired the female employee just a few days later in retaliation for making the complaints, EEOC charged.
These cases follow on the heels of numerous EEOC administrative decisions where the agency has used the Hopkins logic to declare that sexual harassment and gender discrimination protections apply in the sexual orientation context. These cases build on the same-sex sexual harassment decision in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), in which a male oil-rig worker claimed that he was repeatedly subjected to sexual harassment by his male co-workers with the acquiescence of his employer. The Supreme Court held that Title VII’s protection against workplace discrimination “because of … sex” applied to harassment in the workplace between members of the same sex.
“With the filing of these two suits, EEOC is continuing to solidify its commitment to ensuring that individuals are not discriminated against in workplaces because of their sexual orientation,” said EEOC General Counsel David Lopez. “While some federal courts have begun to recognize this right under Title VII, it is critical that all courts do so.”
In Indiana, the following political subdivisions already have protections for the LGBT workforce: Marion and Monroe counties, along with the cities of Bloomington, Evansville, Indianapolis, New Albany, South Bend, West Lafayette, and Carmel prohibit employment discrimination on the basis of sexual orientation and gender identity.
The counties of Lake and Tippecanoe and the cities of Fort Wayne, Lafayette, Michigan City and Terre Haute prohibit employment discrimination on the basis of sexual orientation only.
In light of these developments, what should wise employment counsel advise clients to do?
• Review existing policies and make sure that lesbian, gay, bisexual and transgender categories are listed as protected and that the workplace does not condone discrimination against anyone on that basis in hiring, promotion, firing or any other terms or conditions of employment.
• Train managers that these protections exist and that references to an individual’s appearance or personal preferences are fraught with danger.
• Communicate with employees who have advised the workplace of their status to make sure that discrimination or retaliation has not occurred.
• Develop a protocol to assist employees who are undergoing a gender transition.
• Make sure your dress codes are gender neutral and apply them consistently.
• Review the Occupational Safety and Health Administration’s recent publication, “A Guide to Restroom Access for Transgender Workers,” which provides that all employees, including transgender employees, should have access to restrooms which correspond with their gender identity.
• Above all, treat all employees with respect. Understand that an employee who is harassed and called an anti-gay or sexist slur may possess an actionable claim regardless of the employee’s actual gender identity. This kind of harassment could cost your client plenty.•
Mark Waterfill is a partner at Benesch and focuses his practice on employment law and civil litigation. The opinions expressed are those of the author.