Case Update
FAPAC National Leadership Conference
Atlanta, GA
May 3, 2012
Jo Linda Johnson
Director, Federal Training & Outreach
US Equal Employment Opportunity Commission
Agenda
• Coverage under Title VII
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History of application of Title VII to LGBT employees
Schroer v Billington
Veretto v USPS
Macy v DOJ
• Additional Cases
– Ward v USPS (SJ in favor of CP)
– Sheehy v Navy (OWBPA)
– Kareem v State (contractor v federal employee?)
INTRODUCTION:
Discrimination Against
LGBT Employees
Discrimination against LGBT employees a
widespread problem
Up to 68% of LGBT people report experiencing
employment discrimination. Williams Institute, “Bias
in the Workplace: Consistent Evidence of Sexual
Orientation and Gender Identity Discrimination”
(2007).

Transgender employees report high rates of
discrimination and unemployment
In the first national survey of transgender
people:
• respondents experienced unemployment at
twice the rate of the general population.
• 50% of respondents were harassed at work.
• 26% reported losing a job due to being
transgender or gender non-conforming.
History of application of Title VII to
LGBT employees
History of application of
Title VII to LGBT employees
Language of Title VII does not explicitly include
sexual orientation or gender
identity/expression.
Title VII prohibits discrimination against an
employee “because of such individual's race,
color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e-2.
History of application of
Title VII to LGBT employees
• In the past, courts often rejected Title VII claims
by LGBT employees, interpreting Title VII to
apply strictly to biological sex, and holding that
Congress did not intend to protect LGBT people.
• However, the U.S. Supreme Court decided two
cases that recognized:
– Title VII is not just about biological sex, but also
about gender stereotypes; and
– Title VII covers same-sex harassment, even if
Congress didn’t explicitly contemplate that.
Price Waterhouse and Oncale
In two important employment cases, the U.S.
Supreme Court held that gender stereotyping
and same-sex harassment constitute prohibited
discrimination under Title VII.
– Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
– Oncale v. Sundown Offshore Oil Services, 523 U.S.
75 (1998)
Price Waterhouse v. Hopkins
Ann Hopkins was denied partnership
in an accounting firm. The employer
told her she should “walk more
femininely, talk more femininely,
dress more femininely, wear makeup, have her hair styled, and wear
jewelry.”
The Court said that Hopkins had an
actionable claim under Title VII.
Oncale v. Sundown Offshore Oil Services
• Male co-workers physically assaulted and
threatened to rape plaintiff, Joseph Oncale.
Supervisors did nothing.
• This was the first case in which the Supreme
Court recognized that Title VII prohibits
same-sex sexual harassment.
Oncale v. Sundown Offshore Oil Services
“We see no justification . . . for a categorical rule excluding
same-sex harassment claims from the coverage of Title VII.
. . . [M]ale-on-male sexual harassment in the workplace was
assuredly not the principal evil Congress was concerned with
when it enacted Title VII. But statutory prohibitions often go
beyond the principal evil to cover reasonably comparable
evils, and it is ultimately the provisions of our laws rather than
the principal concerns of our legislators by which we are
governed. Title VII prohibits “discriminat[ion] ... because of ...
sex” in the “terms” or “conditions” of employment. Our
holding that this includes sexual harassment must extend to
sexual harassment of any kind that meets the statutory
requirements.”
After Price Waterhouse and Oncale
Since Price Waterhouse and Oncale, courts have
held that Title VII protects transgender employees.
– Schwenk v. Hartford (9th Cir. 2000) (Title VII covers
transgender people)
– Smith v. City of Salem (6th Cir. 2004) (transgender
firefighter)
– Barnes v. City of Cincinnati (6th Cir. 2005) (transgender
police officer)
– Schroer v. Billington (D.D.C. 2008) (transgender
applicant for Library of Congress)
After Price Waterhouse and Oncale
Courts have held that LGB employees are
protected from same-sex sexual harassment and
gender stereotyping.
– Nichols v. Azteca Restaurant Enterprises (9th Cir.
2001) (harassment of restaurant employee based
on gender stereotypes)
– Rene v. MGM Grand Hotel (9th Cir. 2002) (sexual
harassment of gay male hotel employee)
– Prowel v. Wise Business Forms (3d Cir. 2009)
(gender stereotyping of gay male machine
operator)
Schroer v. Billington
Diane Schroer applied to the Library of Congress. The employer
“admitted that when she viewed the photographs of Schroer in
traditionally feminine attire, with a feminine hairstyle and
makeup, she saw a man in women's clothing,” and thought that
members of congress would not take her seriously.
The court held this was gender
stereotyping “whether the Library
withdrew its offer of employment
because it perceived Schroer to be an
insufficiently masculine man, an
insufficiently feminine woman, or an
inherently gender-nonconforming
transsexual.”
Schroer v. Billington,
577 F.Supp.2d 293 (D.D.C. 2008)
Schroer v. Billington
The court also held that discrimination based on gender
transition is sex discrimination, just as discriminating against
someone because they converted from one religion to another
is discrimination based on religion.
“Imagine that an employee is fired because she converts from
Christianity to Judaism. Imagine too that her employer testifies
that he harbors no bias toward either Christians or Jews but
only ‘converts.’ That would be a clear case of discrimination
‘because of religion.’ No court would take seriously the notion
that ‘converts’ are not covered by the statute. . . . But in cases
where the plaintiff has changed her sex . . . courts have …
carved such persons out … by concluding that ‘transsexuality’ is
unprotected by Title VII.”
Veretto v USPS
The Commission found that the Complainant's complaint of
discriminatory harassment based on sexual stereo-typing is
cognizable under Title VII, and may therefore be processed
under Part 1614 of EEOC’s federal sector EEO complaints
process.
Result:
• Claims of discrimination based on sexual orientation are
typically claims of bias based on failure to conform to typical
gender roles. Covered under Title VII’s sex discrimination
prohibition.
• Agencies should process such allegations as a claim of
discrimination based on sex under 29 C.F.R. Part 1614.
Macy v DOJ
The Commission found that the Complainant's complaint of
discrimination based on gender identity, change of sex, and/or
transgender status is cognizable under Title VII, and may
therefore be processed under Part 1614 of EEOC’s federal
sector EEO complaints process.
Result:
• Claims of discrimination based on transgender status or
gender identity are covered under Title VII’s sex
discrimination prohibition.
• Agencies must process an allegation of discrimination based
on transgender status or gender identity as a claim of
discrimination based on sex under 29 C.F.R. Part 1614.
Other issues
What about:
– bathroom issues? (Cruzan v. Special School Dist, No. 1,
294 F.3d 981 (8th Cir. 2002))
– Actual or presumed customer bias? (Schroer v.
Billington)
– intentional misuse of pronouns? (Tronetti v. TLC
HealthNet Lakeshore Hosp., 2003 WL 22757935
(W.D.N.Y.,2003))
Other Notable Recent Cases
Other Notable Recent Cases
• Ward v USPS, 0720070029
–Cp rec’d a conditional offer of employment from
agency to be an electrician in a ship yard. After a
hearing test, the offer was rescinded. Cp alleged
disability discrimination. AJ found in favor of cp on
SJ. AJ decision was affirmed, as agency failed to
show cp was a direct threat.
Other Notable Recent Cases
• Sheehy v Navy, 0520100403
– Settlement of claims voided as to ADEA claims (only), where
that agreement did not comply with OWBPA.
• Kareem v State, 0520110063
– Cp worked as a language instructor/curriculum developer
for the agency’s Foreign Service Institute. She filed a
complaint alleging harassment, but the agency dismissed
for failure to state a claim, finding that cp was a contractor
and not an employee. Case goes through the 12 factors
(see Ma v HHS, 01962390, May 29, 1998) and finds that cp
was de facto employee.