Articles Posted in Gender Identity Discrimination

Lev Craig

The U.S. District Court for the Eastern District of Pennsylvania recently refused to dismiss Kate Lynn Blatt’s gender and disability discrimination claims in Blatt v. Cabela’s Retail, Inc. Blatt, a transgender woman, brought suit against her former employer under Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA), alleging that Cabela’s had discriminated against her based on her gender identity and her diagnosis of gender dysphoria.

Being transgender does not necessarily involve a diagnosis of gender dysphoria. Whereas a transgender person is someone whose gender identity differs from the sex that they were assigned at birth, gender dysphoria is a condition recognized by the American Psychological Association (APA), characterized by a “marked difference between [an individual’s] expressed/experienced gender and the gender others would assign [them],” which is present for at least six months and “causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.”

By Edgar M. Rivera

On May 24, 2017, the Eighth Circuit Court of Appeals affirmed the district court’s dismissal of plaintiff Brittany Tovar’s sex discrimination claim under Title VII of the Civil Rights Act of 1964 (Title VII). The court held that Defendant Essentia Health’s denial of insurance coverage for Ms. Tovar’s son’s transition-related medical procedures did not state a claim for sex discrimination under Title VII, since Ms. Tovar did not suffer discrimination based on her own sex and therefore lacked statutory standing.

Ms. Tovar, a nurse practitioner, worked for Essentia Health from 2010 to 2016. During her employment at Essentia Health, she was enrolled in an employer-provided health insurance plan that also covered her teenage child, who is a transgender boy, meaning that he was designated female at birth but identifies as male. In 2014, doctors diagnosed Ms. Tovar’s son with gender dysphoria and recommended various treatments, including medications and gender reassignment surgery, for which Ms. Tovar sought coverage under her employer’s insurance plan.

Lev Craig

On Wednesday, President Trump rescinded protections implemented by the Obama administration which had, among other things, allowed transgender students to use the school restrooms and facilities corresponding with their gender identities.

Title IX of the Civil Rights Act of 1964 (Title IX) prohibits discrimination on the basis of sex in federally funded education programs, but does not explicitly protect transgender individuals. Last May, the Obama administration issued guidance regarding transgender students to all public schools in the U.S. in a joint letter from the Departments of Justice and Education. The guidance stated that both departments interpret Title IX’s prohibition against sex discrimination as encompassing “discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status” and that the departments “treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.” Effectively, the guidance required schools to treat transgender students the same as non-transgender students of the same gender for Title IX purposes—for example, schools could not subject transgender girls to different rules and policies than non-transgender girls—and prohibited schools from discriminating against students on the basis of transgender status.

Lev Craig

Last week, in Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc., the federal district court for the Eastern District of Michigan ruled on summary judgment that a funeral home’s termination of a transgender employee did not violate Title VII because the employer was entitled to a religious accommodation under the Religious Freedom Restoration Act (“RFRA”).

In October 2007, Aimee Stephens, started working at R.G. & G.R. Harris Funeral Homes, Inc. (the “Funeral Home”) as a funeral director and embalmer. On July 31, 2013, Ms. Stephens wrote a letter to the Funeral Home, in which she came out as transgender. In this letter, Ms. Stephens informed the Funeral Home that, as part of her transition from male to female, she planned to wear women’s clothing to work in accordance with the Funeral Home’s gendered dress code, which mandates that male employees wear a suit and tie and that female employees wear a skirt suit.

By Lev Craig

On April 13, we wrote about North Carolina’s Public Facilities Privacy & Security Act, more commonly known as “HB 2,” in a blog titled “North Carolina Passes a Controversial Law That Overturns City Anti–LGBT Discrimination Laws.” HB 2 establishes that public schools and public agencies are required to segregate restrooms by biological sex, defined by the statute as the sex listed on an individual’s birth certificate. Consequently, HB 2 effectively denies many transgender people the right to use the bathroom consistent with their gender identity, as a transgender person’s gender presentation is likely to differ from the sex indicated by their birth certificate. The National Transgender Discrimination Survey, the most comprehensive and large-scale survey of transgender Americans to date, found that only 24% of respondents had been able to update their birth certificate to reflect their gender identity.

On March 23, HB 2 was passed in a special session of the North Carolina General Assembly (the first called by the state’s legislature in 35 years), where the bill was introduced, debated, and voted upon over the course of just 12 hours. On May 9, the United States filed suit against the state of North Carolina, Governor Pat McCrory, the North Carolina Department of Public Safety, and the University of North Carolina and its Board of Governors, alleging that the bathroom regulation provision of HB 2 violates Title VII, Title IX, and the Violence Against Women Reauthorization Act of 2013.

Lev Craig

Last week, U.S. District Court Judge Carlton Reeves’ ruling in Barber v. Bryant enjoined a new Mississippi state law – House Bill 1523, or the “Religious Liberty Accommodations Act” (“HB 1523”) – that would have gone into effect on July 1, 2016.  The court struck down HB 1523 on the grounds that it violated both the Establishment Clause and the Equal Protection Clause.

HB 1523 authorized discrimination by businesses and public employees who asserted one of three “sincerely held religious beliefs or moral convictions”: namely, the beliefs that marriage should be “the union of one man and one woman,” that sexual relations should only occur within a heterosexual marriage, and that a person’s gender is defined by their “anatomy and genetics at the time of birth.”

Yarelyn Mena  and Edgar M. Rivera, Esq.

On March 23, 2016, North Carolina Governor Pat McCrory signed in to law the Public Facilities Privacy of Security Act (or H.B. 2), which bans transgender people from using the public bathroom that corresponds to their gender identity, overturns Charlotte, North Carolina’s anti-LGBT discrimination law, prevents other localities from passing anti-discrimination laws, and prevents cities from raising their minimum wages higher than that of the state. H.B. 2 was passed days before Transgender Day of Visibility, a day that recognizes the accomplishments of the transgender community. Although there were many recent victories for the LGBT community, H.B. 2 is an important reminder that there is still a lot of work to be done before LGBT individuals have the same rights everyone enjoys.

On February 22, 2016, the city of Charlotte, North Carolina passed a law prohibiting discrimination against gay, lesbian, bisexual and transgender people in the workplace. The most controversial part of the law was that it would allow transgendered people to use the bathroom that corresponds with their gender identity. Opponents of the bill nicknamed it the “bathroom bill” and argue that it made bathrooms unsafe for women and children. University of North Carolina at Greensboro, Payton McGarry, a transgender student, is one of the Plaintiff’s in a lawsuit challenging H.B. 2, who has been assaulted and ridiculed for using the bathroom that comports with his gender identity at his university, experiences which will only grow worse with H.B. 2 in place. H.B. 2 abrogated that law.

Lucie Rivière and Edgar M. Rivera, Esq.

In January 2013, the U.S. Equal Employment Opportunity Commission (“EEOC”), the federal agency tasked to enforce the Title VII of the Civil Rights Act of 1964 (“Title VII”), adopted its Strategic Enforcement Plan (“SEP”) for the 2013-2016 time period, in which it identified the importance of addressing emerging and developing issues as one of its six national priorities. Specifically, EEOC wants to expend the protection of lesbian, gay, bisexual and transgender individual under Title VII.

On March 1, 2016, the EEOC filed two lawsuits asserting sexual orientation discrimination claims under Title VII. In U.S. Equal Employment Opportunity Commission v. Scott Medical Health Center, P.C., Case No. 2:16-cv-00225-CB (W.D. Pa. Mar. 1, 2016), the EEOC alleges that a gay male employee was subjected to harassment because of his sexual orientation. In U.S. Equal Employment Opportunity Commission v. Pallet Companies d/b/a IFCO Systems, NA, Inc., Case No. 1:16-cv-00595-RDB (D. Md. Mar. 1, 2016), the EEOC alleges that a supervisor harassed a lesbian employee because of her sexual orientation. In both cases, the EEOC argues that the defendants conduct occurred in violation of Title VII.

Lucie Rivière and Edgar M. Rivera, Esq.

On Wednesday, March 2, 2016, The Harman Firm, LLP published the first part of its three-part article titled Microaggressions. The second part, which follows below, discusses practical examples of microaggressions and their impact on those subjected to them.

Microaggressions are hidden messages that are sent: (i) verbally (“You speak good English” to Latino or Asian coworker, suggesting that Latino and Asian Americans, because of their ethnicity, are foreigners and not ‘real Americans,’ regardless of their birth place); (ii) nonverbally (clutching one’s purse more tightly when a black man passes on the sidewalk, conveying the belief that Black people are prone to crime and are “up to no good”) and; (iii) environmentally (using American Indian mascots during football games, suggesting that American Indians are savages or otherwise outsiders and demeaning their culture and traditions).

Lucie Rivière and Edgar M. Rivera, Esq.

This blog is the first section of a three-part article discussing microaggressions and their effect in the workplace. This first section covers the development of the term “microaggression” and the different types of microaggressions that exist. The second section covers practical examples of microaggressions and their impact on those subjected to them. The third section covers the application of microaggression to employment discrimination law.

As more brazen forms of workplace discrimination slowly become less common, employees may experience more discrimination through microaggressions. Chester Pierce, M.D. of Harvard University, who developed the concept of microaggressions in the 1970s, describes microaggressions as “brief and commonplace daily verbal, behavioral, or environmental indignities, whether intentional or unintentional, that communicate hostile, derogatory, or negative racial slights and insults toward people of color.”