The U.S. Fifth Circuit Court of Appeals has restored a jury’s finding from March 2011 that Boh Bros. Construction Co. illegally subjected an ironworker to severe or pervasive harassment based on gender stereotypes. The U.S. Equal Employment Opportunity Commission (EEOC) filed the suit against Boh Bros. (EEOC v. Boh Bros. Construction Co., Civil Action No. 09-6460) in U.S. District Court for the Eastern District of Louisiana, charging that a superintendent, Chuck Wolfe, harassed Kerry Woods with verbal abuse, taunting gestures of a sexual nature, and exposing himself. The harassment took place on the I-10 Twin Span project over Lake Pontchartrain between Slidell and New Orleans, La. The EEOC presented evidence at trial that Woods’s supervisor harassed him because he thought he was feminine and did not conform to the supervisor’s gender stereotypes of a typical “rough ironworker.” In April 2012, a three-judge panel of the Fifth Circuit Court of Appeals (case number 11-30770) reversed the jury verdict, finding that the evidence did not establish that Boh Bros. had harassed Woods “because of sex,” which is the standard under Title VII of the Civil Rights Act of 1964. The EEOC asked the full en banc Fifth Circuit in September of 2012 to rehear the case.
Although numerous Courts of Appeals had decided that a gender stereotype theory may be used to prove illegal same-sex harassment, based on the U.S. Supreme Court decision in Price Waterhouse v. Hopkins, the Fifth Circuit had never directly addressed the issue before. The 10-judge majority of the en banc Fifth Circuit held for the first time that harassment is “because of sex” if it is based on lack of conformity with gender stereotypes. The Fifth Circuit also held that the issue is whether the harasser considered the victim to deviate from gender stereotypes, and not whether the victim fails in fact to conform to those stereotypes. So, the court ruled, what mattered was that Wolfe saw Woods as unmanly — not whether Woods was actually “feminine” in some objective sense.
EEOC v. Boh Bros. Construction Co.
BOH BROS. REHEARING VICTORY Press release.
The American Civil Liberties Union filed a complaint with the U.S. Department of Education against a Florida technical school, saying the school violated Title IX of the Civil Rights Act when it forbade a transgender woman nursing student to use the sex-specific bathrooms used by female students.
Alex Wilson v. Pinellas Technical Education Center Complaint.
Prior Blog Posts.
House Bill 300 would amend the Pennsylvania Human Relations Act to ban discrimination in employment, housing and public accommodation based on “sexual orientation” and “gender identity or expression.” The term “gender identity or expression” means actual or perceived gender identity, appearance, behavior, expression or physical characteristics whether or not associated with an individual’s assigned sex at birth.
A Colorado federal district court dismissed a transgender woman’s claim that she was fired specifically her failure to conform to her employer’s preferred gender stereotypes
Danielle Rice (“Plaintiff”) is a transgender woman who claims that she was discharged from her job as a Senior Manager at Deloitte Consulting, LLP’s [“Deloitte”] because of her status as a qualified individual with a disability and because of her sex, specifically her failure to conform to Defendant’s preferred gender stereotypes.
Plaintiff was born in 1954 as a biological male. In 1985, she married and had three children. In 1991, she divorced and began transitioning her gender identity from male to female. In November 1994, Plaintiff had sex reassignment surgery. She has identified herself as female for over 20 years.
Continue reading “Rice v. Deloitte Consulting LLP (USA)”
Massachusetts is consider a raft of bills related to gender identity, including:
H.B. 154, relating to the protection of the mental and physical health of minors from sexual orientation and/or gender identity change effort.
H.B. 547, relating to Department of Elder Affairs prevention and elimination of discrimination based on sexual orientation and gender identity and expression.
H.B. 1479, relating to the use of the term gender identity in the General Laws.
H.B. 1589 relating to gender identity and access to public accommodations.
S.B. 643 relating to equal access to public places regardless of gender identity.
The Phoenix City Council is considering a bill to prohibits discrimination based on gender identity in housing, employment and public accommodations.
Phoenix City Council.
Two men – Rich Madeleno and Jamie Raskin – are the lead sponsors of the Fairness for All Marylanders Act of 2013, which would codify sex stereotypes that harm women and girls into law by adding gender identity and expression to existing state law that prohibits discrimination in housing, employment and public accommodations.
Bill Proponents’ Description
I want to turn at this juncture in my guest blogging to some recent developments (some of which were briefly discussed previously on Workplace Prof Blog here) in the EEOC’s position on anti-LGBT discrimination.
Last year, the EEOC issued a decision which is arguably one of the most important developments in transgender equality in recent years. In the decision, Macy v. Holder, the EEOC found in a precedential opinion that “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on…sex,’ and such discrimination therefore violates Title VII.” Thus, under Macy, the EEOC’s official position is that anti-transgender discrimination is per se sex discrimination. Continue reading “The EEOC on Transgender Employees and Sex Discrimination”
The Kirkwood City Council voted unanimously to amend its anti-discrimination ordinance to include prohibitions against discrimination for sexual orientation and gender identity.
HB 238 would ban employment discrimination based on “gender identity or expression,” defined as “having or being perceived as having a gender-related identity, appearance, expression, or behavior, whether or not that identity, appearance, expression, or behavior is different from that commonly associated with the person’s actual or perceived sex.” The bill defines neither gender nor sex.