Fourth Annual Public Employment Law Seminar

1. Fourth AnnualPublic Employment Law Seminar Title VII – Gender November 7, 2013 Eugene H. Matthews 803-771-4400 gmatthews@richardsonplowden.com www.richardsonplowden.com

2. Title VII – Gender • 42 U.S.C. § 2000e-2(a) – Unlawful Employment Practices • It shall be an unlawful employment practice for an employer-- • (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin… www.richardsonplowden.com

3. Title VII – Gender Stereotypical Gender Traits FemaleMale Gentle & Empathetic Courageous Modest & HumbleStrong Willed Unselfish Ambitious Nurturing Independent SupportiveAssertive IntuitiveRational Thomas, R. Murray (2000). Recent Theories of Human Development. www.richardsonplowden.com

4. Title VII – Gender • “Gender Stereotyping” • Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). • Female partnership candidate was refused admission as partner. • Partner who was responsible for explaining to Hopkins the reasons for placing her candidacy on hold said, in order to improve her chances for partnership, Hopkins should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” • Evidence of gender discrimination? www.richardsonplowden.com

5. Title VII – Gender • “Gender Stereotyping” • Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). • “In the specific context of 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.” www.richardsonplowden.com

6. Title VII – Gender • “Gender Stereotyping” • McWilliams v. Fairfax Bd. of Supervisors, 72 F.3d 1191 (4th Cir. 1996). • Male mechanic worked in maintenance section • Co-workers known as the “Lube Boys” • Thought Plaintiff was less than manly, and treated him sadistically (sexual banter, physical assaults, etc.) • No evidence of homosexual interest in Plaintiff www.richardsonplowden.com

7. Title VII – Gender • “Gender Stereotyping” • McWilliams v. Fairfax Bd. of Supervisors, 72 F.3d 1191 (4th Cir. 1996). • Plaintiff brings sex harassment claim against employer • (1) that the conduct in question was unwelcome, (2) that the harassment was based on his sex, (3) that the harassment was sufficiently pervasive or severe to create an abusive working environment, and (4) that some basis exists for imputing liability to the employer • Actionable? www.richardsonplowden.com

8. Title VII – Gender • “Gender Stereotyping” • “[W]e do not believe that in common understanding the kind of shameful heterosexual-male-on-heterosexual-male conduct alleged here (nor comparable female-on-female conduct) is considered to be because of the [target's] ‘ sex.’ ” • “Perhaps “because of” the victim’s known or believed prudery, or shyness, or other form of vulnerability to sexually-focused speech or conduct. Perhaps ‘because of’ the perpetrators’ own sexual perversion, or obsession, or insecurity. Certainly, ‘because of’ their vulgarity and insensitivity and meanness of spirit. But not specifically ‘because of’ the victim's sex.” • Abrogated by Oncale v. Sundowner Offshore Services, Inc., 522 U.S. 75 (1998). www.richardsonplowden.com

9. Title VII – Gender • “Gender Stereotyping” • EEOC v. Boh Brothers Construction Co., 2013 WL 5420320 (5th Cir. Sept. 27, 2013). • Plaintiff was an Iron Worker on Chuck Wolfe’s work crew. • Wolfe subjected Plaintiff to “almost-daily verbal and physical harassment because Woods did not conform to Wolfe’s view of how a man should act.” • Problems started when Plaintiff stated that he used “Wet Ones” instead of toilet tissue – which Wolfe thought was “kind of gay” and “feminine.” • Neither was gay. www.richardsonplowden.com

10. Title VII – Gender • “Gender Stereotyping” • EEOC v. Boh Brothers Construction Co., 2013 WL 5420320 (5th Cir. Sept. 27, 2013). • Jury awarded $1,000 in back pay • Jury awarded $200,000 in mental anguish • Jury awarded $250,000 in punitive damages • Court reduced the award to the statutory cap to $300,000 • 5th Circuit panel reversed the ruling • Full 5th Circuit reinstated the ruling (but struck down the punitive damages) www.richardsonplowden.com

11. Title VII – Gender • “Gender Stereotyping” • EEOC v. Boh Brothers Construction Co., 2013 WL 5420320 (5th Cir. Sept. 27, 2013). • Wolfe admitted that severe harassment was due to his view that Plaintiff was not sufficiently masculine • Wolfe directed his behavior only to Plaintiff • Affirmative defense under Faragher-Ellerth – LOST because company never made employees aware of anti-harassment policy • HOWEVER – employer’s actions were clueless but “not maliciously or recklessly indifferent.” www.richardsonplowden.com

12. Title VII – Gender • “Gender Stereotyping” • What is not covered by discrimination based on “sex”? • “Prohibition of ‘sex’ discrimination applies only to discrimination on the basis of gender and should not be judicially extended to include sexual preference such as homosexuality.” • “… does not encompass discrimination based on transsexualism.” • “…transvestites are not covered by Title VII.” www.richardsonplowden.com

13. Title VII – Gender • “Gender Stereotyping” • Macy v. Holder, 2012 WL 143345 (EEOC April 20, 2012). • Man applies for job with BATF as civilian contractor in December 2010 • BATF said he could have the position, pending outcome of the background check • March 2011 – applicant discloses he is transitioning from male to female • April 2011 – applicant told that position would not be filled due to budget cuts • May 2011 – job allegedly filled with another applicant www.richardsonplowden.com

14. Title VII – Gender • “Gender Stereotyping” • Macy v. Holder, 2012 WL 143345 (EEOC April 20, 2012). • Complaint goes through federal administrative process, finally to full Commission • Commission rules that “claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition…” www.richardsonplowden.com

15. Title VII – Gender • “Gender Stereotyping” • Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011). • Claim under 42 U.S.C. § 1983, not Title VII • Employee of the Office of Legislative Counsel (OLC) of Georgia’s General Assembly tells supervisor that he is transgender and will start coming to work as a woman • Employee is fired – OLC Chief says that “Glenn’s intended gender transition was inappropriate, that it would be disruptive, that some people would view it as a moral issue, and that it would make Glenn’s coworkers uncomfortable.” www.richardsonplowden.com

16. Title VII – Gender • “Gender Stereotyping” • Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011). • Court grants summary judgment to Plaintiff • Fourteenth Amendment Equal Protection Claim – “Legislative classifications based on gender also call for a heightened standard of review…” • “discriminating against someone on the basis of his or her gender non-conformity constitutes sex-based discrimination under the Equal Protection Clause.” • “A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes.” www.richardsonplowden.com

17. Title VII – Gender • “Gender Stereotyping” • Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011). • 42 U.S.C. § 1983 EPC claim, not Title VII – discrimination can be justified if there is a “sufficiently important governmental interest” for the discriminatory conduct. • What was it? Brumby’s “purported concern that other women might object to Glenn's restroom use.” • However, Brumby presented insufficient evidence to show that he was actually motivated by concern over litigation regarding Glenn's restroom use – overwhelming evidence that other reasons motivated his decision to terminate. www.richardsonplowden.com