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New Horizons in Employment Discrimination — Changing Definitions and Expanding Liability

Changes in EEOC regulations and interpretations, and some recent court decisions, have expanded the scope of conduct that can be considered actionable discrimination.  This webinar will examine new developments pertinent to multi-racial workforces and expanding concepts of gender identity, as well as the potential impact of a U.S. Supreme Court decision on high-profile cases challenging affirmative action. 

Presented by J. Larry Stine & Paul Oliver.

j larry stine paul oliver

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Webinar Transcription

J. Larry Stine (00:00):
Hello everybody. It's noon and this is Larry Stine and Paul Oliver. And we're here to talk about new definitions and employment law. We're gonna be going back on some very controversial issues, sex pronouns, bathrooms, some other issues. And you'll find from time to time that Paul and I will disagree on some things. Well, he and I have been partners for 26 years. This would not be the first time and nor the last. But the interesting thing is, while we will disagree sometimes it's interesting that even if we disagree, oftentimes we're pretty much in lockstep as to what you should do when you're handling these issues. So we have two points going on, what you do when you're trying to handle it, and an HR situation when it first comes on. And then what happens if something happens, you've not been able to deal with it, now you're in employment litigation, and we're now trying to defend you, or we want you to understand both sides of the law. So we're gonna start off with Paul going to give you some of the understandings of what the law is and where we are, and then we'll go back and forth and ask some of the conversations about that. So, Paul, why don't you start it off

Paul Oliver (01:13):
The case. That was the seminal case dealing with the issues. The main issue that we will talk about in this matter is is the case of Boston versus Clayton County, which was decided in 2020. It was based on Title vii a statute that's been in place since 1964. And it did not create new law and interpreted what the law is now. By doing that, it expanded our understanding of how to apply that law. The particular section of Title seven that was involved in that case is says that it shall be an unlawful employment practice for an employer 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. That statute's been in place since 1964.

Paul Oliver (02:35):
In Bosek, we were presented with a case of whether or not it was discrimination under that section to discriminate against a transgender person and a and a homosexual. Prior to that case, there'd been a number of cases that sort of, that that might be the case. But I think most people felt that discrimination was whether there's differential treatment between a man and a woman. This case indicated that it's a little bit more than that. Alright, it is any discrimination because of sex and that broadened, I believe. But that term really meant, lemme tell you a little bit about the Bosek case because it is important that you understand it in order to understand the principles that we're gonna be talking about. Bostick was was decided in the Court of appeals, but it was a amalgam of three different cases.

Paul Oliver (03:38):
In the 11th circuit involved a case that's called Joe Bostick, and it was from Clayton County. They had fired this person because he had become a co he was an accounting employee, but that he had started participating in a gay recreational softball league. Some big wigs, which pulled co Clayton County found out about it, started making a disparaging remarks found in the county, decided that he was he was, he was, had conduct unbecoming a county employee and fired him. Now, clearly he hadn't done anything other than participated in a softball league and a gay softball league, but he was a homosexual. And that was the reason he was fired. That pretty uncon uncontroversial issue with guarding facts. Second Circuit had a different case and they had found that an employee had been fired. The, the employer had found out recently that the person was gay and they fired, had been a long-term employee, and they fired him fired.

Paul Oliver (04:48):
And the second Circuit said, that's discrimination. So you've got a conflict in the circuits. And then the sixth Circuit, we had a female who had been hired as a female. But during her six or seven year tenure, she changed and then presented herself as a male and indicated to her employer, from now on I'm gonna present as a male. And she was fired. Again, the conduct, there was no conduct involved. It was the employee's status as either a homosexual or a transgender person that caused it. In each case, the 11th Circuit combined these cases and made its determination to explain the court's reasoning. I'm gonna take a minute and let you hear the court's own argument about why it's ru ruling the way it did. And one part that in their argument, the court said, this statute works to protect individuals of both sexes from discrimination and so closes and does so equally.

Paul Oliver (06:05):
So an employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man bob, for being insufficiently masculine, may treat men and women as groups more or less equally. But in both cases, the employee fires an individual in part because of sex. Instead of avoiding Title seven exposure, the employee doubles it, treating a man and a woman the same, but in each case, he's discriminating against each because of sex. That's the an example that the court gave. The ruling was as follows. And the court realized it was a, a momentous interpretation that it was given. And it said actually that the statute's message for our cases is equally simple and momentous. An individual's homosexuality or transgender status is not relevant to employment decisions. That's how they started out their explanation. That's because it is impossible to discriminate against a person for being homosexual or transgender without discriminating, discriminating against that individual based on sex.

Paul Oliver (07:27):
And that I want on to explain, consider, for example, the employee employer with two employees, both of whom are attracted to men. The two individuals are to the employer's mind materially identical in all respects, except that one is a man and the other is a woman. If the employee fires the male employee for no reason other than gotta bring those glasses on, <laugh>, okay? The fact other than the fact that he is attracted to men, the employer discriminates against him for traits or actions it tolerates in its female colleague. Put differently. The employer intentionally singles out an employee to fire based in part on the employee's sex and the affected employee sex is a but for cause of his discharge. Or take an employer who fires a transgender person who is a, who who was identified as a male at birth, but who now identifies as a female, if the employer retains and otherwise identical employee who was identified as female at birth.

Paul Oliver (08:48):
The employee intentionally penalizes a person identified as male at birth for traits or actions that it tolerates an employee identified as female at birth. Again, the individual employee sex plays an unmistakable and impermissible role in the discharge decision. So these are the principles that the court base this decision on. Now, I'll take one other minute to explain that The court then limited its decision cuz this is based on the section that I read to you, title vii. This is specific sections. There are other sections that deal with sex discrimination in federal law. And what the court said to people who thought this was sweeping was this, what are these consequences? Anyway, the employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And under Title VII itself, they say sex segregated bathrooms, locker rooms and dress codes will prove unsustainable after our exci our decision today.

Paul Oliver (10:17):
But none of these other laws are before us. We have not had the benefit of adversarial testing about the meaning of their terms. And we do not pre-judge any such question today under Title seven two. We do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employee who fires someone simply for being homosexual, a transgender, has discharged or otherwise discriminated against, discriminated against that individual because of such individual sex. That's a great disclaimer. Cause they don't decide that. But as in most cases, once a de a court like the Supreme Court issues a decision and a rationale for that decision, the rationale that's reasonably d determined based on that follows that. So while the court did not rule on any of the things that it said it did, but it certainly has an impact on those things shortly after the decision was rendered.

J. Larry Stine (11:28):
Can I make a comment about that decision first? <Laugh>? I think he's gonna get with so much steam, I'm not gonna be able to slow on. Oh, okay. So, so there's a couple of things I wanna mention about that particular decision. First thing that shocked so many people, it was written by Justice Kama. The Trump appoint

Paul Oliver (11:45):
Or No, just Gorsuch. Gorsuch, sorry.

J. Larry Stine (11:47):
Got it backwards. Gorsuch gors. It was the Trump was interrupt looking

Paul Oliver (11:52):
Appointee. That's

J. Larry Stine (11:52):
Correct. And a lot of the people were shocked by, but one thing is he's an originalist and he held true. Yeah. He analyzed it. And one of the big arguments that the opponents had was surely the, in the legislative history, and they never intended to include homosexuals. But one of the interesting things about the legislative history that Paul and I know is the Southern, the Democratic southerners who were opposing the Civil Rights Act in 1964, decided they could throw in sex to slow down the app to keep it from being passed. And lo and behold, it got passed to their chagrin. So it was in there from the beginning. So the legislative history on the sex is a fascinating issue, but what the big argument was on the other side was look at the legislative history. It couldn't have been their intent. The very interesting thing is that you have an originalist who says, when you look to the text of the statute and the regs, you don't look at the legislative history.

J. Larry Stine (12:52):
Right? And so the Supreme Court basically says, we're not looking at the history of it, we're not looking at the intent. In 1964, we're looking at how the words apply and what the words mean and what the words mean. And when you start doing that, you begin to look at some other Supreme court decisions, right. That you alluded to. Right. That are helpful. Like the Fe Waterhouse, which was the one where it, it actually kind of refers to in the decision where Right. This woman did get partnership because she was not feminine enough. That's correct. And it wasn't because she was a woman, it was because she wasn't a feminine enough woman. That's right. So it was related to her sex, but it wasn't because she was a woman. But this was the way she acted. And they found that to be discrimination.

J. Larry Stine (13:39):
And then in oca from 1998, they found that homosexual harassment was a violation of type. So, so how, how in the world can you have a statute that prohibits homosexual harassment from 1998, but allow you to discriminate against them for other purposes? Just doesn't make a lot of Yeah. Sense to me. And believe me, we, since 1998, we have defended homosexual harassment cases so that it's, it, I think it was a surprise of a lot of people, but I think people who understood whether the Supreme Court had been with the feminine acting and the homosexual harassment, it wasn't as much of a shock. But I do think that might have something to do with the limitations that they put on it. And part of the problem that we're gonna discuss is there's one difference between ruling something that was a particular statute, right?

J. Larry Stine (14:35):
Versus ruling something as a constitutional principle under equal protection, which is where we are finding ourselves in litigation. This 2020 case, I think decisively decided under Title vii, that's it. And you, you guys need to understand that, but that's gonna apply to an awful lot of your employment situations. Right. But the other issues that we're gonna talk about today, like bathrooms, transgender pronouns, harassment, or of a fascinating issue, and they're not necessarily statutory driven, right, per se. And we still have to look at the case law that's been developed, the Supreme Court built on it.

Paul Oliver (15:23):
Well, this interpretation affects how the courts have determined whether or not there is a constitutional violation. Because under the equal protection analysis, you are often looking at suspect classes and you give a stronger interpretation if there's a suspect class involved. If the suspect class is sexual d discrim, for instance, who are classified and treated differently because of sex, and that includes homosexuals, that the equal protection analysis becomes easier. In that case,

J. Larry Stine (16:08):
Perhaps <laugh>, perhaps. And, and, and the courts are still struggling with it. And I think we'll see sometime, I don't know if in the near future, but the future, the Supreme Court's gonna have to address some of these implications that flow from the Bostic case from where we're going out. I didn't mean to interrupt you. No, no, you have not. But you were going on strong flow. If I didn't stop you, you were gonna go right fast. Okay. So you were getting ready to talk about something else and

Paul Oliver (16:39):
Well, shortly, shortly within six months of the issuance of that decision, of course president Biden in January of 2021 issued an executive order based on it. And, and basically it said it, it recognized that all persons should receive equal treatment on the law no matter what their gender identity or sexual orientation. And then he told the head of each agency soon as practicable. And in consultation with the general, the Attorney General review, all existing orders, regulations, guidance documents, policies, programs, or other agents to decisions that are or maybe inconsistent with the policy set forth in, in, in, in his decision, which is based on the Boston case. And based on that, the E O C issued an an interpretation. And the Department of Education issued a, a regulation or a, an interpretation. In both cases, they purported to explain what the agency's position was with respect to that to bostick and also to opine regarding bathrooms athletes competition using among people who identified as different from their original identities and things of that sort that were in these interpretive guidelines.

Paul Oliver (18:12):
These were init immediately attacked because they were issued as agency statements. And in both cases within a short period of time, they, they, the, the, the courts reigned them in and said, well, they can't, they can give out interpretations. They can't do an interpretive bulletin like that without going through the APA and, and specific guidelines and things of that sort. But nevertheless, they had for example, title seven the E E O C had issued guidelines based on Boston. And those guidelines were initiated, initially issued in 2021. And they purported to deal with some of the issues that we are, we that are raised by this decision right now. This decision, as I said, dealt with the situation where there was no conduct involved. It was only the issue of should they be fired solely because they were homosexual or trans, trans transgender.

Paul Oliver (19:14):
Right? That was the, that was the issue. And then based on that, the court gave its dis this interpretation of why they, and each case had been discriminated against in the interpreted bulletin that, that E E O C issued. They not only tried to explain what the Bostic tape was about, which was fine, they also wanted to opine on certain factual situations that that they knew would come to come, come about in employment situations because of homosexual or transgender issues. One of those, of course, is it provided that one prohibiting a transitive person from dressing or presenting consistent with that person's gender identity would constitute sex discrimination. Now, that is the EOCs position, and that's the one that they follow. But of course, the court hasn't decided that.

J. Larry Stine (20:21):

Paul Oliver (20:22):
Larry, do you agree with it?

J. Larry Stine (20:24):

Paul Oliver (20:25):

J. Larry Stine (20:25):
I don't agree with it. I, I think that it gets to be a point on the bathrooms. The, the interesting thing is

Paul Oliver (20:32):
It's not like this one is dressing. Now, do you want to dressing, you want to go to bathrooms? We,

J. Larry Stine (20:37):

Paul Oliver (20:37):
Do dressing. Let's do dressings first. Okay.

J. Larry Stine (20:39):
But, but the, the interesting thing is I've had, we, we've dealt with this issue prior

Paul Oliver (20:43):
To this. That's

J. Larry Stine (20:43):
Right. For 20 years, we've had people come and call us, Hey, we've got, got somebody transitioning. And what we've almost always said up until this point is let them go into a separate facility. They'll have the bathroom, they'll have the shower, and go in and use a unisex application. And that's been consistent that way. I didn't disturb the women, I didn't disturb the men. And they had a, they had a private place to do it. The, the interesting thing is that issue did not arise as a result of that case. It actually arose during the Obama administration when they first came, because a legal advocacy group sent out a memorandum that basically says, to make somebody use a unisex bathroom is discriminatory and isolating. And the Obama administration within a month, or seen that memorandum, took the position that it was discriminatory to make them go to, you know, a, a unisex.

J. Larry Stine (21:45):
They did have not had much success with that policy. And of course, Trump reversed it, and Biden put it, put it back. The, the interesting thing is, is because I think it's dealing with a number of issues because, you know, if you're still a male and you're going in and dressing in front of females, that's a problem for the females. And I don't think we have to, I don't think it's discriminatory to say, when you're transitioning, which is where the issues don't come until somebody starts transitioning and hasn't completed. The transition tends to be the period

Paul Oliver (22:29):
That we, that's the strongest period of problems. But I, I think that the opposition is on both ends, whether or not you fully transition or not. They, most of the, the laws or the policies provide, they tie what bathroom you can go to based on how, on what your, your biological position was at birth. Okay. So, so it's, it, it, it doesn't just say, you know, where you are at a particular time, because we recognize that those who are transgender, for example, that at some point now, mostly when they're fairly young or sometimes not that they have to go through a process. And they don't have to, but most of them, they choose to do. So if they choose to do though, do, do, so we'll go through a, a medical process of changing their physical, they

J. Larry Stine (23:29):
Start taking

Paul Oliver (23:29):
Hormones, they test

J. Larry Stine (23:31):
<Laugh> is what they're, what they're doing and with, without, but around. The thing is they're taking hormone treatment and haven't get engaged to

Paul Oliver (23:36):
Have their body Yeah. Become more consistent with what their identity is. Yeah. And that's medically what they're doing. And that sometimes takes a while. And and some don't even do that because you, they can ha they can identify as a, a, a, a, a male or a female transitioning from the other sex without actually changing that sex. So you have all that thrown into one basket. And the question is, all right, now, what are the employer to do? Right. Well, the E O C said when they issued it, and I think their position is, is that courts have long recognized that employers may have separate bathrooms, locker rooms and showers for men and women, or may choose to have unisex or single use bathrooms, locker rooms and showers. The commission has taken a position that employers may not deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee's gender identity. And

J. Larry Stine (24:38):
My position is the commission is left reality <laugh>. I mean, you know, it's, it's easy enough if a Starbucks Yeah. And I've got three individual things and I'll just put a unisex sex on it. That's not the problem. Nobody, I don't think has any problems if I've got different stalls just to slap it, unisex on it. We don't have, the problem tends to be when we get to somebody place where I got 1100 employees and I got one great big facility over here and one over there with showers and changing, and they're not, I, I don't think I could build that many single stalls for 1100 employees. And that's the reason I think the e o C has lost their 11 mind. But DC oftentimes loses contact with reality anyway. The bigger problem is if you know you're in a office and you've got control over it, and I've got stalls, there's no problem.

J. Larry Stine (25:32):
Right. And we don't get calls from those people. The calls I've always gotten has been from somebody that's in a plant with massive bathrooms already built and a massive number of employees, and they cannot live with that particular policy. And now they're confronted with, I've got a person who's still, if he takes his clothes off, still looks like a male in front of the females, what do I do? And I still am of the opinion that having that employee using unisex is the best option we can. And I disagree with the eee of C on that. Now, the issue is, as we know on the titles nine, we're now getting splits and this circuits ons. Right. There's very issue. So I, I'd like to tell you that my position's been upheld all the time, but that would not be true. And conversely, Paul's position hasn't been upheld in all the cases. Ultimately, I think it's edited the Supreme Court where they're gonna have to deal with it.

Paul Oliver (26:30):
I think.

J. Larry Stine (26:31):
So they're gonna deal with, they, they like to push things off a lot longer than you. And I would like them to

Paul Oliver (26:36):
See that these cases though, are pushing themselves up to the Supreme Court. And and, and I, and I agree with Larry, that the issue regarding exactly how you handle the bathroom or locker room issue in certain environments is, is different in, in, in a small office situation where you've got a woman's bathroom and, and a male's bathroom, and there's basically pretty much privacy no matter which, you know, if you go in one, you can go the other. Yeah. A lot of restaurants that do the same thing, now they create two bathrooms and you can go either one or the other, but just one at a time. Right. Or something that will compromise the situation. Right Now, as Larry says, in some situations, it's pretty hard to compromise because the companies already say, when they built the showers in the, in the locker rooms and the bathrooms for women, they were created, but that it wasn't necessarily to be the most private because of the number of people involved.

Paul Oliver (27:35):
So you got men and women over here, and then you say, well, okay, well we create a bigger problem. If now you've got a person who was born as a male, but who identifies as a female and he wants to go in where, or she and I get my pronoun wrong. Oh, we're gonna have, we're gonna have to have a conversation about a pronoun. She wants to go into the big shower room where all of the girls are. Yeah. Now again, the question is, okay, now the person is really identifying as a female. Right? Right. Even though she doesn't look like a female. Right. Do you have a right to say she can't go? I'm saying the cases say, no, you don't have that. Right. And I'm saying the 11th circuit says, I do have that. Right. And the fourth circuit say, you don't.

Paul Oliver (28:20):
That's true. And that's true. And the Supreme Court, at some point, as they said in, in, in, in Bostick, we'll take it up right when it gets right. But until it gets right, it's gotta be an issue. It creates a responsibility, I would say, for the employer to try to create a bathroom situation that doesn't stigmatize the the transgender or homosexual person, but at the same time gives privacy to pe to, to that in individual, which also would give some degree of privacy to the others. Now, that may mean changing your facilities or something of that sort, but I think you have to come up with a compromise that works like that. It's easy. For example, I have one client who just moved the whole facility and built a whole new facility because they were moving anyway. So they designed their bathrooms to cover this.

Paul Oliver (29:24):
Right. Now, this was in a plan to cover this and putting, while they had to, to deal with an employee's privacy on both ends, the, the most thing they would do is they would also put a camera outside. So that that, but not in the private areas where the person was, but with posting saying, I've got surveillance there to, to try to cover the, the idea that some people that there will be issues between male and female if they're in that situation. So, I mean, I think there are creative ways to deal with it, but I do think you have to deal with it and you can't ignore it just because it's a big plant.

J. Larry Stine (30:06):
Well, but the, the, I, I don't disagree with the question is I've got a big plant. I'm not moving my plant. It's been, I've been dealing it for 50 years. Right. I've got some unisex bathrooms and some showers they can go into. And I'm the men and the women don't want the gen, you know, it used to be real blunt, I don't want a transitioning person with a penis. And with me now, I happen to think that once they make the transition surgically, I haven't had questions about that person because now they look physically like what they transitioned too. So I, I think that's a particular issue. Now, if you can change your thing and you have more unisex, great. But I don't think all of them can. And I think you need to think your policy through to say, okay, while you're transitioning, you with a penis, go in this one and you with the vaginas go in this one. And that is not a sex discrimination based on sex, but it's on specifically one thing. What genital do I have? I'm making that so they can identify whatever they want. They're still gonna be treated the same on a physical attribute. And I, if I was doing an album, once they make the transition, that argument doesn't, and I still try to keep them out, then I think I've got a problem with my argument.

Paul Oliver (31:31):
Well, I think that you're, you are trying to make a distinction between transitioning and fully transition doesn't answer the legal issue. Now, it may have practical consideration, but the legal issue is whether or not you are you're treating somebody who was male at birth differently because he was male at birth, as opposed to when, if he had been female at birth. Yeah. Doing those things. Now, I know there are some physical differences, but I'm saying if you follow the, the actual logic that's still a, a discrimination as I read what the court said. Right. At the same time I think that the issue of how do you handle this situation, I don't disagree with Larry. If you create a situation where they are unisex bathrooms or unisex stalls, I don't think that you would want to make that just for that person, but to be able to, whoever could use it. In other words, you've got to destigmatize the use of that, that option. I

J. Larry Stine (32:40):
Agree with that. You can make, you can make, right. If you're a man or female, you wanna go use the unisex restroom, go in there and

Paul Oliver (32:48):
It'll, but that doesn't answer the problem to the, to, to that unisex, that person who said, well, I don't wanna do that. I wanna go in where the, where the females are. Cuz I'm a female,

J. Larry Stine (32:57):
I'm gonna argue, did you act that listen, men, women and whatever you are <laugh>. Cause we'll be in trouble with the pronouns can go use this one and it's available to both males and females to use this. You're one or the others. So go there. I'm not discriminating. To me it's a little bit, my, one of my favorite cases about harassment is there's a fifth circuit case in which an African American on a oil platform was lightly tarred in feather. And Yeah, that's what I said. He was lightly tarred in feather.

Paul Oliver (33:30):
If you can be lightly tarred tar.

J. Larry Stine (33:32):
Yeah. That, that's the other one. I'm not quite certain.

Paul Oliver (33:34):
Lightly tard,

J. Larry Stine (33:35):
Lightly tarred tard. I'm tard. Yeah, I know. But that's what, that was the quote outta the case. And they ruled against the guy. And the reason they ruled against the guys, it turned out it was a hazing of all rookies. And they had lightly tarred and feathered the white employees, the black employees, whatever it was, if you were a rookie, you got it. So the harassment, sometimes you gotta understand that there's, in the law, I can harass people. I can't discriminatorily harass people. If I, if I pick the one I used for the pronoun and I used with Paul earlier, when we're getting ready for this, if, if I've got a son of a gun balls, he goes around saying, Hey, you get your in here. I need to talk to you. He's not being very nice. He's actually being very much of a jerk. But because he addresses all males, all females, all blacks, all Hispanics, everybody with hate you they're gonna be really hard trust to win any discrimination or harassment case against him cuz he is treating everybody equally. I I asked literally tried the case one time where the, the, the, the person was claiming they were discrimination and then everybody came in and testified that the manager was a son of and I won because the, it was before the EOC C judge says, well, he was, he was the quote, he was an equal opportunity

Paul Oliver (35:00):
Jerk. Well, the statutes says, you know, provides that you can't discriminate because of sex in that situation. Right. Right. And if the, if, if that's not the cause of, then of course they don't, you don't violate the statute. But the be the thing you have to be careful with there is that under this situation that if there is, if it was, but for the fact that this person is homosexual or but for the fact that this person was, if that is, if there's any part of it, the reason is because if it's that person, then that's a violation. Yeah.

J. Larry Stine (35:37):
I I I, I, I tell you, Paul, we're at the point now we're from an HR point of view, right? Every employee, every applicant is protected. You know, you give an employee, I'll come up with some protected class foreman. The reality is in the HR settings, now, we've gotta treat everybody the same. I mean, basically, think of it this way, we've gotta treat everybody equally on what they do and not who they are. So from a discrimination point, as long as you keep that rule and you treat everybody for what they do and not who they are, you're going to be okay. Right. from an HR point of view, the problem is typically I don't run into problems with HR making the problems. It's with my hourly employees oftentimes, right. That don't exactly treat everybody the same, and we've gotta deal with that particular

Paul Oliver (36:44):
Well, that becomes an issue because in this kind of a situation, the employer has some responsibilities with respect to a hostile environment. If this is a a protected class of, of, of homosexuals or transect transgender identity folks, if they're in your employee and working with you not only do you have to be careful about what you do with them, you also have to be careful that you don't allow an environment where they are treated d differently. Right. Because of their

J. Larry Stine (37:19):
Sex. Right. Well, for example, like the pronoun issue. Yeah. If I've got somebody who's transitioning and he wants to be called she, and he even says this, look, you know, if I your Christmas suit, I call you, he, man, that's, that's, that's one thing. But if I've got employees who going around harassing them, calling them names, deliberately going, Hey, you, he, he, he, and you begin to get it, we got a responsibility to go back and talk to 'em and say, look, can't do that. But, but the interesting thing about it is words, one of the things about employment is there are certain words that get to the point that there's just almost, by their nature, discrimination for a reason and they're no longer allowed. But there are a lot of words that don't rise to that level. And we don't have, outside of some very limited words, we're free to say an awful lot. Thank

Paul Oliver (38:22):
You. I think what Larry said, generally in our our employment things, one of the things, for example, you, you can't go around calling your black employees.

J. Larry Stine (38:33):
Nope. I can't say.

Paul Oliver (38:33):
I mean, that's, that's that's, that's just, you know, that historically and otherwise by doing that, yeah. You are creating a situation that, you know, is is different and uncomfortable for any black employee. Now the question is, we're we're there, is there a word or a treatment that occurs to homosexuals or transgender people that would create the same type of environment? Yeah. By not calling him, he or she, probably not, unless it really gets to a crazy thing. But if they're calling him memes, yeah, not, and the other thing is, I, you know, I've read one of these things that told me what words are good. Now, the system I

J. Larry Stine (39:18):
Can't keep up with, I can't even keep up with

Paul Oliver (39:19):
It in the, you know, gay you know, when I grew up, you tell somebody gay, it was like, woo. You know, you, you really, that's like saying there, yes. But in this society, gay is, it's gay is one of the words most of the things say is okay. So I don't know. And I, I, there are several groups that put out these things that tell you, oh, these are words that are okay, and these words are not okay. And I think that's still an, a nascent situation where people are trying to figure out, okay, well what's, what, what do we wanna be called? How do we wanna be dealt with? Right? Just like I, I guess to some extent during the, the fifties, sixties and seventies, we went from being Nero to Afro-American to black, to whatever that these are diff but these are preferred names, right. That we, that, that we're, we're having. But again, you wouldn't think that if that called you African American instead of black, that that's gonna create a situation where I'm creating an, an adverse environment. But at the same time, you have to realize that in our society today, homosexuals and transi, transsexual, trans trans sexual individuals have, are, are discriminated against in society significantly. And so you have to be in a position to deal with that if you see it in your employee.

J. Larry Stine (40:48):
Yeah. Well, but the issue is oftentimes is there's a difference, I think, between words and the way you treat people. 

Paul Oliver (40:58):
Sometimes words can do it, but word treatment words, words can

J. Larry Stine (41:03):
Do it. But the words got,

Paul Oliver (41:04):
Remember, words gotta be harsh and, and yeah.

J. Larry Stine (41:08):

Paul Oliver (41:08):
The regulation pervasive

J. Larry Stine (41:10):
And yeah. Severe and pervasive, and words get to be harder. And, and you don't have, they don't get to have their level of sensitivity. They, they, one of my favorite is there's a quote that we, the employment discrimination laws are not required to provide us ability code or work in a, a Victorian garden.

Paul Oliver (41:34):

J. Larry Stine (41:35):
Because there's some hard people out there that talk hard to each other. And as long as they're doing it across the board, they're okay. And the severe and pervasive is a hard definition. So pronouns, at least for the next little while, who knows what'll happen 10 years from now on the pronouns, but at least for now, misgendering, which means you say a word wrong, call 'em, he, instead of she or Z or Zay, which are made up pronouns, is just not going to be an, an enough. Now if you can connect to that, the treating them differently right then, then they got a problem.

Paul Oliver (42:17):
But I think what ha too, that companies have to do the same thing, which is what, what I've seen in schools and colleges and universities have done, because this issue really came up much much earlier in colleges, because that's the liberal bastion of people doing whatever they wanna do. And colleges have learned to try to deal with those situations by getting in front of it in, in, in, in, in, in, in a certain way. And for exa, God lost my thought

J. Larry Stine (42:52):
Oh, is universally Chinese cisgender. And

Paul Oliver (42:59):
In other words, they now have changed some of their, even their paperwork to include recognizing that all the employees for example, my granddaughter is at Oberland now obs one of the more liberal schools in the whole country and has been forever.

J. Larry Stine (43:17):
Oh, probably from the

Paul Oliver (43:18):
1860S. From the 1860s. Yeah. So when, when I go go into her dorm, every door has, what is your preferred gender of what is your preferred pronoun? What is all this? And these are all on the applications and all of that stuff. Now, I'm not saying that everybody has to do that to make people feel comfortable, but morale in a company and dealing with your employees who are possibly subject to discrimination, I think it would be wise if the employ, if the, the, the HR department starts learning how to deal with what the terms generally are to be used so that you don't offend people without trying to, that's the whole idea is that you want to treat people well, whether they're transgender or regular folks, you wanna make them feel welcome. How do you do that? Is you've gotta have some understanding that this part of your employee employees expect a certain level of acceptance of what they want to be called. Now again, I'm not saying that's discrimination, I'm just saying that's something that the employer should take into account.

J. Larry Stine (44:41):
Yeah. I, I, you know, I don't know how far I'm going go on the, the pronoun issue because, and, and be like Oberlin. I don't know if I would, honestly, I don't think most employers would wanna be Oberlin. Now, no offense to Oberlin, but that's a very liberal, liberal arts college, and you're dealing with realities and people who are, frankly you're lucky. They went to high school and they definitely didn't go to college. And they're the ones the HR department, I'm not worried about my HR departments. They tended to be very respectful and, and typically use their names and that. But I, I ain't got somebody out on the line. You know, I've dealt with problems. I still remember having one hourly in a poultry plant. What the man and a woman lunchroom did is they insulted each of sexually for months back and forth, back and forth, and they were having fun until he said something about the size of her butt.

J. Larry Stine (45:43):
And that got me to complaints. Well, what we ended up doing by that one was real easy. We ended up taking both of them and put 'em through sexual birth training. So you, you need to be aware of it and you need, but, but ultimately, I'm not so certain about the pronouns, but if you just treat the people, like people, like I said, for what they do and not who they are, you know, I don't think the pronoun issue is going to be a, a big issue on the factory floor. And might be if you were a, you know, movie company, that might be something, but they, that those people would be more sensitive to it. So part of it has to do where you are in the employees that you, you're kidding to, to understand that. But it comes to somebody bringing a pronoun harassment case. I'm, I'm all into defendant <laugh>, just call me. I don't think I'd be very happy to defend that

Paul Oliver (46:38):
Case. Yeah. Yeah. I don't think we have to deal with that at this point, but I, I do think that companies have to realize that the protections that transgender and transsexual individuals have, it's the same as anyone else. It's a because of sex. And if you understand that analysis and that they, that, that you can't treat them differently. If you do something that's employment related, that's different than how you would've treated them if they were born differently. Right. Then you got a problem.

J. Larry Stine (47:15):
Or like I say, a lot of times when I get a call on any policy is, are you being consistent?

Paul Oliver (47:20):
Are you

J. Larry Stine (47:20):
Being consistent? Are you being consistent? Are you enforcing the policy the same way? One of my favorites, the three days nohow call, three days nohow call, they fire 'em, they fire 'em, and then the fend to the boss is out five days and they don't fire 'em. And I tell 'em, well, guess what? You just made a five day policy instead of a three day policy. So you, you've got the issues of that. But one of the things that's pretty clear with the long history of the, of the Supreme Court decisions in the BO case is you sex, homosexuals, transgenders, at least in the treatment, there's not a Paul, and I don't disagree on this at all. We've gotta treat 'em the same. Now, when we're discussing this stuff and we're talking about pronouns and bathrooms, we're getting down to the fine, the fine details where we kind of might have a different position on it. But even with the bathrooms, to the extent you can, to me, the policy is, is that anybody can use the Unex bathroom, but for you, while you're transitioning, I'm going to take the position. It's, I'm gonna make it mandatory for you. And E EOC is gonna come after you if they do that, and you get a, get a complaint. But my other problem is, and this is the thing, if I've got a guy with a penis and the women's bathroom exposing himself, I'm gonna get sexual harassment complaints from the women. Well,

Paul Oliver (48:47):
If that's happening, Larry, that's different. You don't have a problem if that's what's happening. Right. And that, and that's not what this is, is about. And I, and I, and I know that in most advices we would be the same. I would say if you, if you just limit the, in the the transsexual or, or the homosexual to a particular bathroom, right now you're going to be inviting an e o C charge. You're going to be inviting litigation. I think that's gonna be a, a little bit of a problem. I think you have to be creative in trying to figure out what a solution is. But if the solution is to limit that particular person, that is, but for the fact that you were not, you, you were, you were not, not transitioning, I would let you go everywhere. But now that you're transitioning, you only go here. I think that under the analysis, that could be a problem. See,

J. Larry Stine (49:44):
I, I, I still think you're wrong on it. I still think if I've got a rule that says if you've got a penis, you can't go on the room with the vaginas. And if you got a vagina, you can't go in the room with the penises. I'm not doing anything about sex. I'm doing something about a physical

Paul Oliver (49:58):
Attribute. But it is a physical attribute that's related to sex. And so if you ply it strictly, and I I agree that I I think you could, you could, you could put yourself in a situation, you could have a problem. And that's what you don't wanna do. Yeah. If you can help it. Now, I understand for example, if that single per thing was right there where everybody was, but again, like I said, if you can disguise it so that it's like everybody can do it, that's fine. But once you say, this person has to use this and not this, I think that's where you're running into a problem. You're gonna have to create a situation in the other bathroom. Right.

J. Larry Stine (50:39):
I I, I wouldn't, I would tell the guy with a penis, you can go into the men bathroom while you want and you can go with the UEX bathroom, and I would tell the person with the vagina, you can go into the ones with the vaginas and the unex ones, but you can't go into that one until

Paul Oliver (50:54):
Spoken like a true deacon. But hey, listen, <laugh>.

J. Larry Stine (50:57):
Well, that is true.

Paul Oliver (50:59):
That is true. But again, and I'm, and I know our sexual norms have always been separate men and women and you're doing it for privacy purposes for both sides and all that. But if you take this interpretation and I read it to you so that you could see exactly how they analyze it, that you have to, it, it could be an issue. That could be a problem.

J. Larry Stine (51:21):
Yeah, I understand. But I, the E EOCs taking positions,

Paul Oliver (51:24):
Oh, I'm

J. Larry Stine (51:24):

Paul Oliver (51:25):
Talking of because of the EOC did it? So, because as I said, actually, that PO position that they gave, yeah, they had to pull, they had to pull it back because

J. Larry Stine (51:35):
Right. Because they, the administration.

Paul Oliver (51:37):
But, but that's what they apply anyway. So really doesn't matter into it, because that's still what they apply, but it is not necessarily the law now. Yeah.

J. Larry Stine (51:46):
Well, I, I, I, I, the point I wanna make is with E E O C, they take certain positions, <laugh>, that I still don't think law, I, I had an argument with 'em about religious discrimination, and I was arguing the Supreme Court decision and Trans World Airlines supplied. And the E O C attorney very deathly told me, well, E E O C disagrees with the Supreme Court. And I'm saying good luck on that one. But that was their fortunate position was that they disagreed with the Supreme Court decision. And I've had issues with ada a where they have an official position.

Paul Oliver (52:16):
Well, the E O C is an advocacy agency. Yes, it is. But at the same time, it is a, a part of the enforcement process. So if you file a discrimination charge you know, it is not determinative. No. But at least it affects, it can affect you if they file a charge against you. So again, depends on the circumstances of what you can do

J. Larry Stine (52:41):
And when you can do it. Well, Paul, we've been talking for 55 minutes, almost 53. We want to turn just for a moment. Sure. See, I don't get it, but if anybody's got a question and answer, if you'll go to the bottom of the screen and push the q and a, we'd be glad to, to answer any questions that we can answer in the next, you know, six minutes <laugh>. Cause we don't wanna make you stay beyond one o'clock since the launch webinar. As, as you can tell, Paul, and I find this to be an absolutely fascinating agreement. That's, that might be because we're lawyers and we just find that to be just a exciting and very challenging. And, but

Paul Oliver (53:29):
I, I think it's an area of the law that is still developing and like the Supreme Court, that what we haven't ruled on all these things. So y'all go out and ferret it out, and sooner or later will come up to me and we'll make a decision on it in between. You gotta deal with us.

J. Larry Stine (53:42):
Yeah. Ju ju just every one of you should hope that you are not the company that gets be selected for that, because you do not want to be the company that gets to go to the Supreme Court from that particular issue. So from your purposes for trying to protect yourselves think about it through and try to come with the most low profile approach, you can come to it and keep it low so that you don't get it. So we're, we'll be glad to do that. It doesn't look like any of you have any, any questions for us, which is not surprising.

Paul Oliver (54:18):
But if you do have some later, then you also know how to contact us. So we hope we provided you some information and discussion about what is an important new and developing area and employment

J. Larry Stine (54:33):
Law. Right. And if you have any questions, sent it to the web or, or email address of po wim, or he

Paul Oliver (54:40):
Wants you to ask me, not him. I'm kidding. Go ahead.

J. Larry Stine (54:45):
Deliberately. Hey, or Jls at <inaudible>. Or maybe you wanna ask the more liberal person the question, a more conservative one. Now you know which one to ask. The reality is I made, I I I entered with the introduction and the reality is, when push comes to shove and what you're doing preemptively, you'll get pretty much the same advice. Absolut.

Paul Oliver (55:07):

J. Larry Stine (55:08):
If you get in litigation, we have to take litigation positions. Paul May be finding himself taking the positions that I'm articulating today, depending on what your client has to

Paul Oliver (55:18):
Do. Oh, absolutely. As an advocate, you, you have to deal with,

J. Larry Stine (55:21):
You have to do that. Yeah. And I would have to do the same if somebody else came, run another direction. So while we have our personal opinions, when we're advocates, we will research and argue the law like crazy on our sides. That's what we do. Absolutely. And that's what we are trained to do. Well, if we don't have any other further questions, I wanna thank you for this opportunity. I don't know about you, but I had a wonderful time, Paul. Thank you. I like, I'd like, I'd love the banner between me and Paul. And like I said, we've been partnered for 26 years. If you couldn't tell that, we kind of get along. I'm surprised. Well, thank you very much. Y'all have a, a good time and have a good Friday and a happy Easter.

Paul Oliver (55:59):
Happy Easter, Joel, all.

J. Larry Stine (56:01):

Paul Oliver (56:02):

New Horizons in Employment Discrimination promo graphic
Webinar Date: Friday, April 07, 2023
Start Time: 12:00 PM
End Time: 12:45 PM
Presenter(s): J. Larry Stine & Paul Oliver
Status: Available On-Demand
Venue: Zoom

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