Most of you probably know that the US Supreme Court heard oral arguments in October on three consolidated cases regarding the rights of homosexual and transgender employees in the workplace. Those cases are Gerald Lynn Bostock v. Clayton County, Georgia; Altitude Express v. Melissa Zarda; and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission. Specifically, the Court must decide whether Title VII of the Civil Rights Act of 1964’s prohibitions against sex discrimination include discrimination based on gender identity and sexual orientation. The Court is expected to hand down a ruling in June 2020. Not everyone is waiting until June to resolve their situations, though. In this week’s post I am going to talk about 2 cases involving transgender employees alleging sex discrimination based on gender identity.
The first case is Milo v. Cybercore Technologies, LLC, No. 18-cv-03145 (D. Md. Jan. 13, 2020). Here’s what went down:
On or about December 2, 2012, CyberCore hired Megan Milo to be a Senior Software Engineer in a facility in Annapolis Junction, Maryland. She began working at CyberCore a few months before she publicly transitioning, at which point her co-workers were told, going forward, to refer to her as “she” and “her” and to treat her with dignity and respect. According to Ms. Milo, that did not happen. Instead, she alleges having been deliberately misgendered, given a hard time about clothing choices, and put on a Performance Improvement Plan, because a co-worker complained he was “walking on eggshells” around her. She was then given the choice of taking a layoff or being fired because of her “bad attitude.” CyberCore then terminated her and then replaced her with a non-transgender (cisgender) employee.
Milo sued filed suit in the US District Court in the District of Maryland, alleging that she was subjected to a hostile work environment, a discriminatory termination and retaliation, in violation of Title VII. Neither party asked for a stay pending the US Supreme Court ruling, even though the court noted that such a ruling could ultimately affect the case’s viability. CyberCore moved to dismiss, arguing that Title VII doesn’t protect against discrimination based on gender identity, and that Ms. Milo did not plead facts sufficient to support her claims. The court dismissed the hostile work environment claim, without prejudice, having agreed with CyberCore that Ms. Milo pleaded insufficient facts in support. However, the court allowed the other 2 claims to go forward, reasoning that her termination “plausibly resulted from her attempts to ‘stick up for herself’ in the face of discriminatory treatment by her coworkers.” and that there was evidence she was “terminated in retaliation for her continued complaints to management and to her co-workers about discrimination.”
Let’s have a look at the second case and I will tie them together with some takeaways. The case is (Claire et. al v. Florida et. al, No. 20-cv-00020 (N.D. Fla. Jan. 13, 2020)). Here’s what went down:
Two transgender women employed by the State of Florida alleged that the state’s medical plans, –solicited, chosen and implemented by the State–allegedly denied coverage for necessary gender-affirming care for gender dysphoria, including hormone replacement therapy, and surgical procedures. The employees allege that denial of such coverage is a “categorical exclusion that precludes transgender state employees from having their gender-affirming medical needs subjected to the same medical necessity analysis to which all other state plan members’ medical needs are subjected.” They filed suit on January 13, 2020, alleging sex discrimination on the basis of gender non-conformity and gender affirmation under Title VII.
OK, let’s get to the takeaways. Here are some:
- This is a repeat. Even with a US Supreme Court decision expected in less than 5 months, employees are not waiting, and the issue is not taking a break. That means, from a practical standpoint, you probably can’t either. Even if the Supreme Court decides that Title VII’s prohibitions do not extend to sexual orientation and gender identity, at best you would have an example of “Just because you can, doesn’t mean you should”. Even in the face of such a decision, you would probably still face lawsuits.
- The second case includes at least one count of discrimination based on failure to conform to gender stereotypes, which the US Supreme Court ruled to be prohibited under Title VII in Hopkins v. Price Waterhouse in 1989. Regardless of how the Supreme Court rules in June, this will still be a viable option for LGBTQ employees.
- The behavior complained of in the first case probably also qualifies as bullying. While bullying in and of itself is not illegal under federal law or in all states, bullying, when it goes unchecked, can escalate to violence and other employee relations problems that you will still have to deal with as an employer–and why would you want them?
- In other words, here is what I am recommending to you: Don’t wait around for the US Supreme Court. Whether or not the behavior is prohibited under Title VII such behavior is still discrimination against an employee for reasons unrelated to work, so stop tolerating it, and yes, treat it the way you would treat any discrimination allegations. Take the allegations seriously, investigate thoroughly and promptly, and if you find the allegations to be true, then discipline the same way you would discipline anyone else you found to have engaged in discrimination or harassment of members of protected classes.
- Alternatively, if you don’t want to listen to my recommendations, prepare for the distinct possibility of litigation. Discrimination based on sexual orientation and gender identity is already illegal in at least 20 states. If the US Supreme Court doesn’t rule it illegal, expect that number to rise, and either way, expect that employees who have been treated poorly to fight back. Wouldn’t you?
I hope I’ve made my point. See you next week.
Watch the latest video clip in my series, “Ask the Employer’s Lawyer:Do I Have a Right to Know if a Job Applicant is Pregnant?” at https://youtu.be/t2wRFvmkLKE.
Watch my television interview on Stop My Crisis with Vivian Gaspar.
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