Jessica A. Palmer-Denig Trial Attorney EEOC-Minneapolis Area Office

It shall be an unlawful employment practice for an employer (1) 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 race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-2(a)

Title VII does not specifically identify transgender as a protected class and does not mention sexual harassment: how does it apply?

The EEOC and the Courts are not creating new protected categories, but are recognizing the scope of the existing protected category of “sex.”

Legal theories, case law developments, and recent activity in Minnesota

Price Waterhouse v. Hopkins

, 490 U.S. 228 (1989).

Hopkins alleged Price Waterhouse failed to promote her to partnership because she was aggressive and unfeminine. Evidence showed she was described as “macho,” needed a course at “charm school,” she was criticized for using profanity because it was “a lady using foul language.”

Hopkins was told to improve her chance of partnership she should: “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”

Supreme Court expressly recognizes sex stereotyping as a form of sex discrimination: “As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group…” “In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.”

Sommers v. Budget Marketing, Inc.

based on “transsexualism”).

, 667 F.2d 748 (8th Cir. 1982) (holds “sex” under Title VII does not include claims of discrimination BUT:

Sommers

pre-dates

Price Waterhouse

.

Lewis v. Heartland Inns of America, LLC

decisionmaker had boasted about the , 591 F.3d 1033 (8th Cir. 2010) (sufficient sex stereotyping evidence to survive summary judgment where Lewis was described as lacking the “Midwestern girl look,” and appearance of women staff members and that they should be “pretty,” and had advised a hotel manager not to hire an applicant deemed not pretty enough).

Hunter v. United Parcel Service, Inc.

, 697 F.3d 697 (2012) (without discussing

Sommers

holding that “[g]ender stereotyping can violate Title VII when it influences employment decisions,” but concluding Hunter failed to show UPS knew of transgender status).

,

Macy v. Holder

, EEOC DOC 0120120821, 2012 WL 1435995 (2012).

Decision by the EEOC in a matter involving a federal employee. Macy was selected for a position with ATF, but after informing them she was in the process of transitioning from male to female, she was told the position had been cut. She later learned it had not been cut, but instead was given to someone else.

EEOC holds that transgender discrimination is sex discrimination. Sex stereotyping is not a “claim,” but a theory under which transgender discrimination may be proven. “‘[S]ex stereotyping” is not itself an independent cause of action.” No need to show sex stereotyping – “if Complainant can prove the reason that she did not get the job at Walnut Creek is that the Director was willing to hire her when he thought she was a man, but was not willing to hire her once he found out that she was now a woman – she will have proven the Director discriminated against her on the basis of sex.”

Official position of the EEOC.

Persuasive precedent to use in litigation around the country.

Easier to bring claims of transgender/sex discrimination without needing to show sex stereotyping evidence.

EEOC Minneapolis Office Conciliation Agreement announced September 2013: RAPID CITY MARKET TO PAY $50,000 TO SETTLE EEOC FINDING OF DISCRIMINATION AGAINST TRANSGENDER EMPLOYEE

Well-Performing Employee Fired Because of Gender Identity, Agency Charged

Basic framework, recent EEOC litigation.

Sexual harassment is a form of sex discrimination. See Meritor Savings Bank, FSB v. Vinson , 477 U.S. 57 (1986) - A plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive working environment. - For sexual harassment to be actionable it must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.

The U.S. Supreme Court has recognized that a claim may be brought alleging same sex sexual harassment under Title VII. Oncale v. Sundowner Offshore Services, Inc.

, 523 U.S. 75 (1998).

On several occasions Oncale was forcibly subjected to sex-related, humiliating action in front of the rest of the crew, was physically assaulted in a sexual manner, and was threatened with rape. Complaints produced no results and Oncale quit his job, stating in his deposition that he left because: “I felt that if I didn’t leave my job, that I would be raped or forced to have sex.”

Title VII protects men as well as women.

Nothing in Title VII bars a claim of discrimination “because of … sex” merely because the plaintiff and defendant are of the same sex.

Our holding [that Title VII prohibits sexual harassment] “must extend to sexual harassment of any kind that meets the statutory requirements.”

1) 2) 3) Explicit or implicit proposals of sexual activity/credible evidence that harasser was homosexual General hostility to members of harasser’s sex Direct comparative evidence about how alleged harasser treated members of both sexes in a mixed sex workplace

Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimination because of sex.

Same general standards apply: conduct must be severe or pervasive and judged from the perspective of a reasonable person in the plaintiff’s position under the circumstances.

“The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive.”

Oncale’s routes are not the only ways to show same sex sexual harassment; examples are instructive. Shepherd v. Slater Steels Corp F.3d 998 (7th Cir. 1999); 397 F.3d 1063 (8th Cir. 2005); ., 168 Pedroza v. Cintas Corp ., Medina v. Income Support Div., N.M

., 413 F.3d 1131 (10th Cir. 2005).

Plaintiffs can pursue sex stereotyping route in these cases as well. Nichols v. Azteca Rest. Enters., Inc.

VII claim).

, 256 F.3d 864 (9th Cir. 2001) (male plaintiff harassed by male co-workers because they viewed him as effeminate established Title

EEOC brought suit on behalf of a steelworker , Woods, who was harassed by his crew superintendent, Wolfe.

Wolfe harassed Woods by: 1) 2) 3) calling Woods “faggot” and “princess”; approaching Woods from behind and simulating sexual intercourse; exposing himself to Woods.

Case does not fit Oncale examples: 1) 2) 3) No evidence harasser is homosexual; No evidence of animosity to all men in the workplace; and Not a mixed-gender workplace, all workers were male.

EEOC pursues sex stereotyping route alleging Wolfe harassed Woods due to gender nonconformance. Jury returns verdict in favor of EEOC: $450,000.

EEOC v. Boh Brothers Construction Company, LLC , 689 F.3d 458 (2012).

Reversal based on lack of evidence that Woods actually did not conform to stereotype: “The only charge asserted by Wolfe that Woods was other than masculine to which the EEOC has pointed us is his use of “Wet Ones” instead of toilet paper. Wolfe testified that he did not view Woods as feminine, and there is no evidence except the “Wet Ones” that he did, that that does not strike us as overtly feminine. . . . Accordingly, we hold that there is insufficent evidence that Wolfe ‘acted on the basis of gender’ in his treatment of Woods.”

EEOC asked for en banc review and the Fifth Circuit agreed in March 2013. EEOC v. Boh Brothers Construction Co., LLC , 712 F.3d 883 (2013).

EEOC’s argument: Jury could have found Wolfe knew conduct would be particularly humiliating to Woods as a man and that the conduct occurred as it did because Woods is a man . Jury could have reasonably concluded that Wolfe’s conduct – simulating anal intercourse, threatening to put his penis in Woods’ mouth, exposing himself to Woods, using anti-gay epithets and questioning Woods’ masculinity – would not have occurred had Woods been a woman. Proceedings are pending.

EEOC Minneapolis Area Office 330 2 nd Avenue South Suite 720 Minneapolis, MN 55401 Ph: (612) 335-4040 Toll Free: (800) 669-4000 Fax: (612) 335-4044 On the web: www.eeoc.gov