Talia Y Guerriero Esq Nora J Broker Esq

Talia Y. Guerriero, Esq. Nora J. Broker, Esq.

Use respect, privacy, & good terminology

Gender Identity/Expression v. Sexual Orientation Cisgender person Transgender person (not “a transgender”) Non-binary, Gender non-conforming (GNC) and “They” and “Zie” pronouns Sex Assigned at Birth/Deadname Transition/Affirmed Name Intersex

Use respect, privacy, & good terminology Enforce strong anti-discrimination policy

Use respect, privacy, & good terminology Enforce strong anti-discrimination policy Guidance on transition in workplace

Use respect, privacy, & good terminology Enforce strong anti-discrimination policy Guidance on transition in workplace Examine & change policies: ID, uniform, health insurance, gendered language, bandanas, payroll

Use respect, privacy, & good terminology Enforce strong anti-discrimination policy Guidance on transition in workplace Examine & change policies: ID, uniform, health insurance, gendered language, bandanas, payroll Don’t put burden on the person!

Use respect, privacy, & good terminology Enforce strong anti-discrimination policy Guidance on transition in workplace Examine & change policies: ID, uniform, health insurance, gendered language, bandanas, payroll Don’t put burden on the person! Bathroom assessment, signage, & policy

Use respect, privacy, & good terminology Enforce strong anti-discrimination policy Guidance on transition in workplace Examine & change policies: ID, uniform, health insurance, gendered language, bandanas, payroll Don’t put burden on the person! Bathroom assessment, signage, & policy Groups or associations? Supportive symbols?

§. 6% of adults in US, or 1. 4 million individuals, identify as transgender – Williams Institute (2016)

2015 US Transgender Survey § Work – mistreatment, firing, denied promotion (30%) § 19% fired or denied promotion or job b/c of gender identity § 15% verbally harassed, physically attacked, and/or sexually assaulted at work § 23% other mistreatment - told to use wrong restroom, present as cisgender, shared confidential information

2015 US Transgender Survey § Poverty – 29% compared to 12% general population § Attempted Suicide– 40% compared to 4. 6% gen pop § Race – disparities increased for people of color § Family – violence (10%); kicked out of home (8%) § Schools - verbally harassed (54%), physically attacked (24%), and sexually assaulted (13%)

Title VII - Federal Equal Protection. Federal ORS 659 A. 030 - State Disability-related Non-Retaliation

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 42 U. S. CODE § 2000 E-2 § 15 or more employees § Illegal to: § refuse to hire or terminate; § discriminate against in compensation; § discriminate in terms, conditions, or privileges of employment; § segregate or classify employees in a way that deprives opportunity § On the basis of SEX

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 42 U. S. CODE § 2000 E-2 Protects against: § Intentional discrimination § Hostile work environment § “Disparate impact”

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 42 U. S. CODE § 2000 E-2 § Debates in case law about whether sex includes “gender” and gender stereotypes § Debates about whether it can be sex discrimination if both “male” and “female” employees are being treated the same, regardless of transgender status

§ § Holloway v. Arthur Andersen & Co. , 566 F. 2 d 659, 662 -63 (9 th Cir. 1977) § [Overruled by Schwenk v. Hartford, 204 F. 3 d 1187, 1201– 02 (9 th Cir. 2000)? ] Sommers v. Budget Mktg. , Inc. , 667 F. 2 d 748, 750 (8 th Cir. 1982) Ulane v. Eastern Airlines, 742 F. 2 d 1081, 1085 (7 th Cir. 1984) Doe v. U. S. Postal Service, 1985 U. S. Dist. LEXIS 18959, 1985 WL 9446, *2 (D. D. C. 1985)

§ Doe v. Boyertown Area School District, 893 § EEOC v. Harris Funeral Homes, 884 F. 3 d 560 § § F. 3 d 179 (3 rd Cir. July 26, 2018) (Title IX) (6 th Cir. March 8, 2018) (Title VII) Whitaker v. Kenosha Unified School District, 858 F. 3 d 1034 (7 th Cir. May 30, 2017) (Title IX and Equal Protection) Glenn v. Brumby, 663 F. 3 d 1312 (11 th Cir. Dec. 6, 2011) (Equal Protection)

§ § § Vickers v. Fairfield Medical Center, 453 F. 3 d 757, 763 (6 th Cir. 2006). De. Santis v. Pac. Tel. & Tel. Co. , Inc. , 608 F. 2 d 327, 329– 30 (9 th Cir. 1979) Medina v. Income Support Div. , 413 F. 3 d 1131, 1135 (10 th Cir. 2005) (reverse sexual orientation discrimination)

§ § Hively v. Ivy Tech Community College of Indiana, No. 15 -1720, 2017 WL 1230393 (7 th Cir. Apr. 4, 2017) EEOC v. Scott Med. Health Ctr. , P. C. , No. 16225, 2016 WL 6569233 at *5 (W. D. Pa. Nov. 4, 2016) Zarda v. Altitude Express, Inc. , 883 F. 3 d 100 (2 d Cir. Feb. 26, 2018) Ter. Veer v. Billington, 34 F. Supp. 3 d 100, 116 (D. D. C. 2014)

§ 2006 –argued that Title VII doesn’t include transgender status per se § 2011 – OPM issued guidance that its nondiscrimination policies covered transgender discrimination

§ 2012 – EEOC ruled gender identity discrimination is sex discrimination. Macy v. Holder, No. 0120120821 § 2014 – Holder Memo – will no longer argue Title VII doesn’t include gender identity per se

§ 2017 – Sessions Memo – withdrawing Holder Memo

OREGON REVISED STATUTES: 659 A. 030 § One or more employees § Illegal to: § refuse to hire or terminate; § discriminate against in compensation; § discriminate in terms, conditions, or privileges of employment § On the basis of sexual orientation § Sexual orientation includes actual or perceived gender identity under ORS 174. 100

OREGON REVISED STATUTES: 659 A. 030 Protects against: § Intentional discrimination § Hostile work environment § “Disparate impact”

OREGON REVISED STATUTES: 659 A. 030 Tanner v. Oregon Health Scis. Univ. , 157 Or. App. 502, 971 P. 2 d 435 (1998) § University's denial of insurance benefits to domestic partners of its homosexual employees amounted to discrimination “because of” their sexual orientation

OREGON REVISED STATUTES La Manna v. City of Cornelius, 276 Or. App. 149, 166, 366 P. 3 d 773, 783 (2016) Dawson v. Entek Int'l, 630 F. 3 d 928, 939 (9 th Cir. 2011)

HOSTILE WORK ENVIRONMENT § Sufficiently severe or pervasive § unreasonably interfering with work performance § creating an intimidating, hostile or offensive working environment § Shoes of a reasonable transgender person

HOSTILE WORK EConsider: NVIRONMENT § Failing to address co-worker harassing comments, misgendering, deadnaming; § Access to bathrooms; § Denial of reasonable requests like bandanas; § Failing to address name/ID issues;

HOSTILE WORK EConsider: NVIRONMENT § Violating privacy rights; § Heightened scrutiny; and § Disciplining employees for emotional responses to harassing conduct.

EQUAL PROTECTION CLAIM UNDER 42 U. S. C. A. § 1983 § State Actors Soho v. U. S. , 2008 WL 151831 (D. Or. 2008) refusing to issue a commercial driver's license because plaintiff “was a sex change” could support an equal protection claim

EQUAL PROTECTION CLAIM UNDER 42 U. S. C. A. § 1983 § State Actors Glenn v. Brumby, 663 F. 3 d 1312, 1320 (11 th Cir. 2011) “We conclude that a government agent violates the Equal Protection Clause's prohibition of sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-

DISABILITY ACCOMMODATIONS “Reasonable Accommodation” § - Modification or adjustment § - Might include time off § - Look to askjan. org for ideas

DISABILITY ACCOMMODATIONS “Interactive Process” § Employer must talk about limitations even if employee doesn’t mention the ADA or “disability”

NON-RETALIATION OR “WHISTLEBLOWER” PROTECTIONS § Title VII of the Civil Rights Act of 1964 § Americans with Disabilities Act (ADA) § Oregon Revised Statutes: 659 A § FMLA/OFLA

NON-RETALIATION OR “WHISTLEBLOWER” PROTECTIONS Protects against § Adverse Employment Actions: § Anything that might discourage a “reasonable” employee from making, reporting, or supporting a complaint

NON-RETALIATION OR “WHISTLEBLOWER” PROTECTIONS TWO KINDS OF ACTIVITY For USING or INVOKING legal rights For reporting or making a COMPLAINT about possible legal violations

NON-RETALIATION OR “WHISTLEBLOWER” PROTECTIONS Requires the report/complaint: § Made to or known by management; § Made in “good faith; ” § Contains information that employee believes is evidence of violation of law, rule, or regulation

NON-RETALIATION OR “WHISTLEBLOWER” PROTECTIONS Protects against: § Adverse Employment Actions

TIPS § Contingency Agreements § Deadlines § Social Media & Texts § Document, document, document!

TIPS, CONT. § Confidentiality provisions at work § Unemployment benefits § Personnel file request § Report! § Affiliation discrimination

HYPOTHETICALS

§ § § perceived to be too “macho” for a woman; “take a course at charm school” and “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry. ” Title VII reaches 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. ”

§ § all male oil rig; coworkers “forcibly subjected” the plaintiff to sex-related, humiliating actions, physical assault, rape threats, and name calling. Employer knew of conduct. Title VII prohibits same-sex sexual harassment, as long as the plaintiff is able to prove that the harassment occurred because of the victim’s sex.

§ Male plaintiff stated a Title VII claim where he was harassed “for walking and carrying his tray ‘like a woman’i. e. , for having feminine mannerisms”

Talia Y. Guerriero talia@oregonworkplacelaw. com 503 -459 -4010 Nora J. Broker brokern@bennetthartman. com 503 -546 -9624