L ^_.

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MODERN OFFICE

www.BusinesSfest.coni

MAY 21, 2012

A Transition in the Law

New Prohibitions Against Gender-identity Discrimination
By KARINA L SCHRENGOHST, Esq.

n May 1,1989, the U.S. Supreme Court held

that discriminating gainst individuals based
on non-confonnity with gender stereotypes
is a form of gender (sex) discrimination prohibited
by Title VU of the Civil Rights Act of 1964. (See Price
Waterhouse v. Hopkins, 490 U.S. 228). Since then,
discrimination based on transgender status or gender
identity has been a developing area of the law.
Some state legislatures have recognized gender
identity as a protected class under state anti-discrimination laws. Federal courts are increasingly finding
that laws prohibiting gender discrimination apply
to transgender individuals. And recently, the Equal
Employment Opportunity Commission (EEOC), the
administrative agency responsible for enforcing Title
VII (which applies to employers with at least 15
employees), held that discrimination based on transgender status is gender discrimination prohibited by
TiteVII.
Gender identity will soon be a protected class
under Massachusetts anti-discrimination law. On
Nov. 23, 2011, Gov. Deval Patrick signed "An Act
Relative to Gender Identity" (also known as the
Transgender Equal Rights Bill), which will go into
effect this July 1. This law prohibits private employers with six or more employees from discriminating
against applicants and employees on the basis of gender identity. Gender identity is defined as "a person's
gender-related identity, appearance, or behavior,
whether or not that gender-related identity, appearance, or behavior is different from that traditionally

WEBSITE DESIGN . GRAPHIC DESIGN

413.788.0654 WWW.DIFDESIGN.COM

associated with the person's physiology or assigned

of her rights under the Equal Protection Clause of the
sex at birth."
14th Amendment of the U.S. Constitution. Glenn was
When the law takes effect in July, Massachusetts
fired from her job because she was transitioning from
will become the 16th state in the nation, along with
male to female.
the District of Columbia, to prohibit discrimination
Furthermore, on April 20, 2012, the EEOC for
based on gender identity. Similar legislation is pendthe first time held that intentional discrimination
ing in more than a
dozen other states.
In addition, federal courts have
Recently, the Equal Employment Opportunity
recognized that discrimination based on
Commission (EEOC), the administrative agency
transgender status or
responsible for enforcing Title VII (which applies
gender identity is a
form of unlawful
to employers with at least 15 employees), held
gender discriminathat discrimination based on transgender status
tion. For example,
in a recent case, on
is gender discrimination prohibited by Title VII.
Dec. 6, 2011, the
n t h Circuit Court
of Appeals held that
the termination of an
employee, who was bom a biological male but identiagainst a transgender individual because that perfied as a female, based on her non-conformity with
son is transgender is gender discrimination prohibgender stereotypes, was imlawful gender discrimiited by Title VII. (See Macy v. Holder, Appeal No.
nation. (See Glenn v. Brumby, 663 F.3d 1312, 11th
0120120821). Mia Macy, a transgender woman, filed
Circuit).
a complaint gainst the Bureau of Alcohol, Tobacco,
Vandiver Elizabeth Glenn, a transgender woman,
Firearms, and Explosives (ATF) alleging employment
filed a complaint against her ex-employer, the
discrimination in violation of Title VII. After a teleGeorgia General Assembly's Office of Legislative
Counsel, alleging gender discrimination in violation
Continued on page 67

design

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MAY21,2012

Gender

Minimum Wage

Continued from page 26

Continued from page 34

phone interview with the director of the

Wabiut Creek crime laboratory, Macy was
informed that she would he hired if she
passed the hackgroimd check. However,
shortly after the ATF learned that Macy
was transitioning from male to female, it
informed her that funding had heen cut
and the position she applied for was no
longer available. Macy later learned that
the ATF hired someone else for the position.
The EEOC stated that gender discrimination occurs when "an employer discriminates against an employee because
the individual has expressed his or her
gender in a non-stereotypical fashion,
because the employer is uncomfortable
with the fact that the person has transitioned or is in the process of transitioning
from one gender to another, or because
the employer simply does not like that
the person is identifying as a transgender
person." This decision allows individuals
to file charges of employment discrimination based on transgender status or
gender identity with the EEOC.
Importantly, the language in the
EEOC decision did not restrict its finding to the specific facts of the case, but
broadly concluded that discrimination
based on transgender status is gender
discrimination prohibited by Title VII.
Although the EEOC decision involved
a government employee, it is likely that
courts will consider the same analysis for
claims involving employees in the private
sector.
This means that employers must not
make decisions regarding hiring, promotion, termination, and other terms and
conditions of employment based on an
applicant's or an employee's non-conformity with gender stereotypes, transgender status, or gender identity. And to
reduce the risk of litigation, employers
should review and update their equalemployment-opportunity, discrimination, harassment, and retaliation policies
to reflect this change in the law.
Employee handbooks and employee
trainings should include discrimination
based on transgender status and gender
identity as a form of gender discrimination that is unlawful and that will not be
tolerated in the workplace. In addition,
employers should train their managers on how to respond when employees
approach them regarding transitioning.
Finally, because this is a developing
area of die law, employers should consult with their employment-law counsel
when issues arise in the workplace concerning gender identity.

that the bill has strong support from the

AFL-CIO, and he expects that support for
the bul from other legislators would take
a couple of years to bud. So employers
can certainly expect that, whether firom
the state Legislatiure or from Congress,
there may be future attempts to increase
the minimum wage.

Karina L Schrengohst, Esq. specializes

exciusiveiy in management-side labor
and employment law at Royal LLP, a
woman-owned, boutique, managementside labor and employment law firm;
(413) 586-2288; kschrengoh5t@royalllp.
com

More Wage-and-hour News

The U.S. Department of Labor has
announced that tiat its investigations into

67

the restaurant industry in Massachusetts

have uncovered $1,307,808 in back wages
owed by a number of Massachusetts restaurants to 478 employees. The DOL is
currently calculating what level of penalty might also be assessed against these
restaurants, which had multiple wageand-hour violations, including paying
their wait staff a flat rate, failing to pay
or properly calculate overtime, making
niegal deductions from employees' paychecks, and failing to keep proper records
of their employees' wages.
The department has developed a
smartphone application to help employees independently track the hours they
work and determine the wages they are
owed. The app, which is available in

English and Spanish, helps users track

their regular work hours, break time, and
any overtime hours.
This aimouncement from the DOL
underscores the fact that the federal government is serious about investigating
wage-and-hour violations wherever they
might occur.
Susan G. Fentin is a partner in the law
firm Skoler, Abbott & Pre55er, P.C., which
practice5 only labor and employment law
and represents the interests of employers exclusively; (413) 737-4753; 5fentin@
5koler-abbott.com

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