While I have previously posted on issues affecting LGBT workers, which you can access here, here, here and here, 2015 saw three cases involving the rights of LGBT employees that for one reason or another we did not address. Two of them involve Wal-Mart and issues regarding harassment of a transgender employee, and denial of health benefits to same sex couples, respectively. The third case is an EEOC decision from April, involving the U.S. Army and restroom access to a transgender employee. Let’s have a look at these important cases after the jump…
Now, in the past I have noted Wal-Mart’s kindness in providing us multiple examples as to what not to do–and hopefully saving the rest of you from taking the same hit it has. It looks like we have more opportunity for exactly that.
The first Wal-Mart case, Azzarano v Wal-Mart Stores, Inc, Case No.3722-15, was filed in the Superior Court of New Jersey, Camden County. Samantha Azzarano, a transgender woman, began working for Wal-Mart in 2012. Prior to changing her gender identity in 2013, she was male and her name was Robert Azzarano. Once she began transitioning, however, Ms. Azzarano alleges that she began experiencing “hostile interactions” with her manager, Sheena Wyckoff. For example, Ms. Wyckoff insisted on calling Ms. Azzarano Robert (her birth name), used phrases such as “he/she” and “f—ing tranny” to describe her, and began writing her up and subjecting her to “an inordinate amount of criticism”, while similarly situated non-transgendered employees allegedly did not receive such treatment. Wyckoff then fired Azzarano in June 2014. Ms. Azzarano is seeking job reinstatement and back pay. Item: this is not the first time a transgender Wal-Mart employee alleged discrimination–and it’s not the first New Jersey case. Back in 2000, after Wal-Mart failing to answer the complaint, a judge entered a $2m default judgment against it. Item #2: Wal-Mart updated its antidiscrimination policies in 2011 to provide protection to protect sexual orientation and gender identity. More on that in a bit.
In June, Jacqueline Cote sued Wal-Mart in Massachusetts on behalf of herself and all others similarly situated ( in legalese that’s a class action lawsuit) alleging that its years of denial of health benefits to her wife is sex discrimination in violation of Title VII of the Civil Rights Act of 1964 and a Massachusetts fair employment law. As you may know, Title VII does not specifically include protection against discrimination based on sexual orientation or gender identity. If you read my previous post from this time last year, (click here) you know that the EEOC takes the position that discrimination under Title VII “because of sex” does include discrimination based on someone’s sexual orientation or gender identity. Last year, before the US Supreme Court decided Obergefell v Hodges, (holding that bans against same-sex marriage are unconstitutional), Ms. Cote filed a discrimination charge with the EEOC. In January, the EEOC found such refusal to be in violation of Title VII. In response to, which overturned the Defense of Marriage Act (DOMA) defining marriage as a heterosexual union, Wal-Mart began in January 2014 offering benefits to same-sex spouses–Ms. Cote’s wife had already incurred over $150,000 in medical bills in her fight against ovarian cancer. Wal-Mart maintains that its coverage prior to 2014 was “consistent with the law”.
While the Obergefell v Hodges essentially legalized same-sex marriage it does not obligate employers to offer same-sex spouses coverage. Remember the Affordable Care Act does not require employers to offer medical coverage to spouses and therefore there is no federal requirement to offer spousal health coverage. The premise of Cote v Wal-Mart Stores, Inc is that if employers offer spousal coverage to heterosexual couples, refusing to offer it to same-sex couples violates Title VII and in this case, Massachusetts law.
Finally in Lusardi v McHugh EEOC Appeal No. 0120133395 April 1, 2015, a civilian employee alleged sex and gender identity discrimination by the US Army in violation of Title VII. Ms. Lusardi, a disabled veteran, was a Software Quality Assurance Specialist in the US Army Aviation and Missile Research, Development and Engineering Center (“AMRDEC”) in Alabama. When Ms. Lusardi transitioned from male to female in 2010 the Army required her to use a separate single-user restroom because “other employers might feel uncomfortable” sharing a common restroom with her. She was told that she could use the women’s restroom only after she had undergone “final surgery”. On a few occasions when the single-user restroom was out-of-order or being cleaned, Ms. Lusardi used the common women’s restroom and her employer counseled her. In addition, her supervisor repeatedly used male pronouns, such as “sir” and her old name in front of co-workers and others (including others who were not aware that she was a transgender woman), and made other derogatory comments. Ms. Lusardi filed her complaint with the US Army’s EEO Office. The Army dismissed the complaint. Ms. Lusardi appealed the Army’s determination to the EEOC. The EEOC found that the Army had subjected Ms. Lusardi to sex and gender identity discrimination and a hostile work environment in violation of Title VII and ordered the Army to immediately grant “equal and full access” to the women’s restroom, to investigate whether Lusardi might be entitled to compensatory damages and to provide training on gender identity, sex discrimination and retaliation to all civilian staff.
So let’s look at some key takeaways’:
- The EEOC is serious when it is says it will use Title VII to fight sexual orientation and gender discrimination.
- Azzarano and Cote show that state laws can be very effective in filling the gaps currently left by federal law. Therefore be sure that your policies and practices comply with the laws of every state in which you employ people.
- Azzarano and Cote also show it’s not enough just to have policies. If you don’t enforce them, monitor compliance, and provide periodic training, they will not protect you against discrimination claims.
- If you have provided health benefits to spouses up until now, you may be liable for sex discrimination if you refuse to provide the same benefits to same-sex couples as you do to heterosexual couples–even if the ACA does not require you to offer coverage to spouses. Beware of any type of disparate treatment against any class that is protected under state and local laws and that may be protected under federal laws.
- Here, of course is my standard admonition — consult with in-house counsel or competent outside employment counsel. (C’mon, admit it. You’d be disappointed if I stopped including this one now.)
Disclaimer: This post and all its contents are for educational/informational purposes only, are not intended as legal advice, do not create an attorney-client relationship, and are not intended to replace consultation with competent employment counsel in the state(s) in which you employ people
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