Presented by Maria Hart at the 2015 Parsons Behle & Latimer Employment Law Seminar in Boise, Idaho.

1. Parsons Behle & Latimer IDAHO EMPLOYMENT LAW SEMINAR
LGBT RIGHTS IN THE WORKPLACE:
A CHANGING ENVIRONMENT
Maria O. Hart
mhart@parsonsbehle.com
WEDNESDAY, OCTOBER 21, 2015 | BOISE CENTRE
parsonsbehle.com

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Utah Code 34A-5-101 et seq.

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Sexual Orientation: Defined as an
individual’s actual or perceived orientation
as heterosexual, homosexual or bisexual.
Gender Identity: Defined by reference to
the Diagnostic and Statistical Manual (DSM-
5) which refers to individuals who see and
feel themselves to be a different gender than
their assigned gender.
Key Definitions

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 In a poll conducted in December of 2014, 67% of Idahoans stated
their belief that it “Should be illegal to discriminate in housing,
employment, and business based on sexual orientation and gender
identity”. (Poll conducted by Dan Jones & Associates for Idaho
Politics Weekly)
 21 states and 125 cities and counties already have ordinances such
as this.
 A number of cities in Idaho have passed municipal non-
discrimination ordinances. Sandpoint was the first in 2011, now
joined by Boise, Coeur d’Alene, Idaho Falls, Ketchum, Moscow,
Lewiston, Victor, Driggs, Hailey and Pocatello.
Current Status of Discrimination
Law in Idaho

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 97 of the Fortune 100 largest companies have policies banning
discrimination on the basis of sexual orientation.
 Many Idaho companies such as St. Luke’s Health System, Micron
Technology, Simplot Co., Hewlett-Packard and Idaho Power have
also adopted such policies for their employees.
 Add the Words
Current Status of Discrimination
Law in Idaho

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 No generally applicable federal law expressly
prohibits LGBT discrimination in the workplace.
 Title VII prohibits discrimination on the basis of
“sex.”
 Until about 10 years ago, almost nobody thought
LGBT discrimination fell under Title VII’s sex
discrimination prohibition.
 So, what happened?
Federal Framework

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 Price Waterhouse v. Hopkins
U.S. Supreme Court, 1989
• First “sex stereotyping” discussion
 Macy v. Holder (2012)
• EEOC held for the first time that discrimination
based on gender identity is unlawful sex
discrimination under Title VII.
 Hall v. BNSF Ry. Co., 2014 U.S. Dist. LEXIS 132878, 1
(W.D. Wash. Sept. 22, 2014)
Legal Framework

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 Shortly after Macy, EEOC published its 2013-2016
Strategic Enforcement Plan (SEP)
 The SEP will be “addressing emerging and developing
issues,” including “coverage of lesbian, gay, bisexual
and transgender individuals under Title VII’s sex
discrimination provisions, as they may apply.”
 The SEP makes clear the EEOC intends to make sexual
orientation and gender identity discrimination a priority in
its enforcement efforts, though acknowledges that even
after Macy the reach of Title VII remains uncertain,
especially regarding sexual orientation.
EEOC Developments

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 EEOC began accepting/investigating charges by private
sector employees alleging LGBT discrimination under
Title VII in January 2013.
– January through September 2013
• 643 charges alleging sexual orientation discrimination
• 147 charges alleging gender identity discrimination
– Fiscal Year 2014
• 918 charges alleging sexual orientation discrimination
• 202 charges alleging gender identity discrimination
– First half of 2015
• 505 charges alleging sexual orientation discrimination
• 112 charges alleging gender identity discrimination
EEOC Developments

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 Three transgender lawsuits in the last year:
– EEOC v. Harris Funeral Home (E.D. Mich., filed Sept. 25, 2014)
• Company fired funeral director/embalmer two weeks after she told company
she was transitioning from male to female.
• Survived Motion to Dismiss in April 2015.
– EEOC v. Lakeland Eye Clinic (M.D. Fla., filed Sept. 25, 2014)
• Company fired employee after she began transitioning from male to female
• Settled for $150,000 in April 2015.
– EEOC v. Deluxe Financial Services (D. Minn., filed June 4, 2015)
• Challenging company’s alleged policy of forbidding transgender female
employee from using restroom consistent with her gender identity, and for
using “hurtful epithets and intentionally using the wrong gender pronouns to
refer to her.”
EEOC Developments

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 Additional cases worth noting:
– Lusardi McHugh (decision dated April 1 2015)
• Federal sector Army case.
• EEOC held that a male-to-female transgender woman faced unlawful sex
discrimination under Title VII when her supervisors told her to use a unisex
restroom because use of women’s room was making coworkers
uncomfortable and continue to refer to her using her former male name and
male pronouns.
– Baldwin v. Fox (decision dated July 15, 2015)
• Federal sector, Department of Transportation, case.
• EEOC held for the first time that discrimination based on sexual orientation is
per se unlawful sex discrimination under Title VII.
EEOC Developments

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 Executive Order 13672 (2014)
– Applies to certain federal contractors/subcontractors
– Amends Executive Order 11246 by adding sexual orientation and
gender identity to the list of protected categories.
– Applies to contracts entered into or modified on or after April 8,
2015.
– Requires the following:
• Employers must take affirmative action to ensure that applicants are employed
and employees are treated without regard to their sexual orientation or gender
identity.
• Employers must include sexual orientation and gender identity as protected
categories in the Equal Opportunity Clause in federal contracts, subcontracts,
and purchase orders.
Other Federal
Administrative Actions

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• Employers must update all solicitation/advertisements for employment to state
that the company considers all applicants without regard to sexual
orientation/gender identity.
• Employers must post updated notices in the workplace stating that sexual
orientation and gender identity are protected categories in employment.
 OSHA: “A Guide to Restroom Access for Transgender
Workers” (June 1, 2015)
– Transgender employees should be allowed to use the restroom
that corresponds to their gender identity.
– Suggested options:
• Single-occupancy gender-neutral (unisex) facilities
• Multiple-occupant, gender-neutral facilities with lockable single stalls
• Do not require documentation of gender identity
Other Federal
Administrative Actions

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 www.dol.gov/ofccp/LGBT
 www.dol.gov/ofccp/LGBT/LGBT_resources.html
Department of Labor Resources

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 What You Should Know About EEOC and the
Enforcement Protections for LGBT Workers
http://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm
 Fact Sheet on Recent EEOC Litigation-Related
Developments Regarding Coverage of LGBT-
Related Discrimination Under Title VII
http://www.eeoc.gov/eeoc/litigation/selected/lgbt_facts.cfm
 List of Federal Sector Cases Involving
Transgender Individuals; List of Federal Sector
Cases Involving Lesbian, Gay, or Bisexual
Individuals
http://www.eeoc.gov/eeoc/federal/reports/lgbt_cases.cfm
EEOC Resources

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 Section 1557 of the ACA, 42 U.S.C. § 18116, prohibits
discrimination on the basis of sex (among other bases)
in health programs or activities of covered entities.
 Interpreted by HHS Office of Civil Rights in a July 12,
2012 letter to include claims of discrimination based on
gender identity or failure to conform to gender stereo-
types.
 HHS planned to issue a proposed rule in April 2015,
but did not release the rule until September 3, 2015.
Affordable Healthcare Act

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 Pursuant to the ACA’s provision guaranteeing availability of
coverage, Centers for Medicare & Medicaid Services
(CMS) issued regulations providing that health insurers
participating in the group or individual markets cannot use
“marketing practices or benefit designs” that discriminate
on the basis of sexual orientation or genre identity.
– A CMS FAQ sheet clarifies that this means same-sex
spouses must be offered coverage on the same terms and
conditions as opposite-sex spouses.
– https://www.cms.gov/CCIIO/Resources/Regulations-and-
Guidance/Downloads/frequently-asked-questions-on-
coverage-of-same-sex-spouses.pdf
Affordable Healthcare Act (cont.)

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 The Department of Labor issued guidance changing the
“state of residence” rule to a “place of celebration” rule
for the definition of spouse under the FMLA regulations.
 The Final Rule changes the regulatory definition of
spouse in 29 CFR §§ 825.102 and 825.122(b) to look to
the law of the place in which the marriage was entered
into, as opposed to the law of the state in which the
employee resides.
 A place of celebration rule allows all legally married
couples, whether opposite-sex or same-sex, or married
under common law, to have consistent federal family
leave rights regardless of where they live.
FMLA

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 This definitional change means that eligible employees,
regardless of where they live, will be able to take FMLA
leave to:
– care for their lawfully married same-sex spouse with a
serious health condition.
– take qualifying exigency leave due to their lawfully married
same-sex spouse’s covered military service.
– take military caregiver leave for their lawfully married
same-sex spouse.
FMLA (cont.)

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 Eligible employees may also take FMLA leave to care for
their stepchild (child of employee’s same-sex spouse)
regardless of whether the in loco parentis requirement of
providing day-to-day care or financial support for the
child is met.
 Eligible employees may also take FMLA leave to care for
a stepparent who is a same-sex spouse of the
employee’s parent, regardless of whether the stepparent
ever stood in loco parentis to the employee.
FMLA (cont.)

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 Changes were to be effective March 27, 2015.
 Four states that do not recognize same-sex marriages
challenged the Department of Labor’s revised definition of
“spouse” which would require employers in all states to
extend FMLA leave for care of same-sex or common law
spouses as long as the marriage was legal in the state in
which it took place. Texas, Louisiana, Arkansas and
Nebraska filed suit in federal court seeking to block this
revised rule, arguing that compliance with the federal rule
results in violation of the state’s prohibition on recognition of
same-sex marriages.
…but…

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 On June 26, 2015, the U.S. Supreme Court
ruled that the equal protection and due process
clauses of the 14th Amendment require all states
to issue marriage licenses to same-sex couples
seeking to marry and to recognize same-sex
marriages lawfully performed in other states.
 Justice Kennedy’s opinion for the majority did
not state whether the decision should be applied
retroactively.
Obergefell v. Hodges

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 Retroactivity conundrum highlighted in two lawsuits initiated in
Federal courts over the past year that challenge employers' denials
of health benefits to the same-sex spouses of employees.
– Cote v. Wal-Mart Stores Inc., an employee sought repeatedly to have her same-
sex spouse added to her health insurance but was denied. While Wal-Mart did
extend benefits to same-sex spouses in the wake of the Windsor decision, the
employee and her spouse had accumulated significant medical bills prior to
Windsor. The employee is challenging Wal-Mart’s pre-Windsor denials and is
seeking class-action status for the suit.
– Considine v. Brookdale Senior Living, an employee’s request to have her same-
sex spouse added to her health plan was denied because Brookdale Senior
Living did not offer health insurance coverage to same-sex spouses. After
requesting briefs in mid-July on the impact of the Obergefell decision, the court
recently sent the parties to arbitration based on an arbitration clause in Ms.
Considine’s employment agreement.
Obergefell v. Hodges

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 More litigation, especially initiated by the EEOC.
 Employment Non-Discrimination Act (ENDA)?
– Would add sexual orientation and gender identity to Title VII’s protected
categories
– Introduced almost every year for the last 20 years.
• Passed by the Senate in 2013, stalled in the House
 Add the Words
What’s Next?

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1. Review and understand the new laws – city and
federal.
2. Revise harassment and retaliation policies to
include sexual orientation and gender identity
as prohibited bases for harassment and
retaliation.
3. Include a discussion about sexual orientation
and gender identity issues in your
discrimination and harassment training.
Best Practices

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4. Review your employee handbook, your job
applications, your recruiting and training
materials, and your website.
5. Review your dress/appearance codes to make
sure they are not inviting sexual orientation,
gender identity, or other sex discrimination
claims. Focus on professionalism and
legitimate business-related needs.
Best Practices

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6. When you learn that an employee is
undergoing a gender transition, have a
discussion with the employee regarding
whether, how, and when to announce the
employee’s transgender status; when/whether
the employee will be changing names, the
employee’s restroom preference, and any other
applicable issues.
Best Practices

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7. Use pronouns consistent with an employee’s
gender identity, and require supervisors and
coworkers to do the same. (Discuss this with
the employee to ascertain his/her wishes.)
8. If you learn that an employee is in the process
of gender transition and you are unsure
whether or how to discuss the situation with the
employee and/or other employees, consult with
legal counsel.
Best Practices

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9. Review and determine how your company is
going to handle the challenges and issues
involving use of the restroom/locker room.
10.Although total confidentiality is often impossible
when an employee undergoes a gender
transition, respect that employee’s right to
privacy to the greatest extent possible.
Best Practices

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11.Carefully consider how you will handle
administrative, personnel, and payroll records
for transgender employees.
12.Keep an eye on the EEOC, the U.S. Congress,
the Idaho Department of Labor, and the Idaho
Human Rights Commission for developments
regarding sexual orientation/gender identity
discrimination.
Best Practices

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 Maria O. Hart
208.562.4893
mhart@parsonsbehle.com
Thank You