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Between Caitlyn Jenner and Rachel Dolezal, this seems to be the Summer of Trans.  Federal anti-discrimination laws were designed to prohibit disparate treatment based on immutable characteristics – things we were born with, such as gender, race, color, and national origin.  They were expanded to include other factors over which we had no control, such as age and disability. Now the prohibition on discrimination is being further expanded to prohibit disparate treatment based on choice and self-perception:  specifically, sexual orientation and gender identity.  This is not an entirely new concept.  For example, religion is not written in anyone’s genetic code, yet we prohibit discrimination based on religion.  But sexual and racial identity issues, and “trans” issues, are gaining prominence and it is only prudent for an employer to stay informed.

First, some definitions:

• Sexual orientation means one’s emotional or physical attraction to the same and/or opposite sex.

• Gender identity means one’s inner sense of one’s own gender, which may or may not match the sex assigned at birth. Different people choose to express their gender identity differently. For some, gender may be expressed through, for example, dress, grooming, mannerisms, speech patterns, and social interactions. Gender expression usually ranges between masculine and feminine, and some transgender people express their gender consistent with how they identify internally, rather than in accordance with the sex they were assigned at birth.

The EEOC already has sued employers whom they allege to have discriminated against transgendered employees.  In June, the EEOC sued a check-printing and financial services corporation in Minnesota, alleging that it violated federal law by subjecting a transgender employee to sex discrimination. This is the third lawsuit filed by the EEOC alleging discrimination on the basis of gender identity/transitioning/transgender status. In April, 2015, a Florida eye clinic paid $150,000 to settle an EEOC lawsuit filed in September 2014, seeking relief for an employee who had been transitioning from male to female.  Also in September 2014, the EEOC filed suit against a Michigan funeral home which allegedly fired an employee for transitioning from male to female.

The most recent lawsuit alleges that the employee, Britney Austin, had performed her duties satisfactorily in the company's Phoenix offices throughout a lengthy tenure there. However, after she began to present at work as a woman and informed her supervisors that she was transgender, the employer refused to let her use the women's restroom. The EEOC says her supervisors and coworkers subjected Austin to a hostile work environment, including hurtful epithets and intentionally using the wrong gender pronouns to refer to her. (Pronouns are a thorny issue:  modern etiquette dictates that the pronoun should match the subject’s desired gender.  So, for example, a woman transitioning to a man should be referred to as "he" or "him," and a man transitioning to woman as "she" or "he.")

The EEOC has already issued a few rulings in transgender discrimination cases.  In Lusardi v. McHugh, the Commission ruled that denying employees use of a restroom consistent with their gender identity and subjecting them to intentional use of the wrong gender pronouns constitutes discrimination because of sex, and thus violates Title VII.  And in a 2012 opinion, Macy v. Dep't of Justice, the EEOC ruled that employment discrimination against employees because they are transgender, because of their gender identity, and/or because they have transitioned (or intend to transition) is discrimination because of sex and/ or based on their failure to conform to gender stereotypes, which is sex discrimination that violates Title VII.

 Trans-racial issues, on the other hand, are more complicated.  Unlike sex, race cannot be determined by any sort of genetic test.  Race is a matter of perception on the part of the individual and society.  Federal laws prohibit discrimination on the basis of race or color, while also compelling some employers to identify their workers by race (and ethnicity) to demonstrate compliance with affirmative action requirements.  How does one classify an individual with parents of different races – such as the current occupant of the White House?  While the EEOC appears to support "gender identity," respecting an individual’s choice as to restrooms and pronouns, Ms. Dolezal, former President of the Spokane NAACP, has been sharply criticized for choosing to identify as black.

The EEOC has posted on its website some guidance on lesbian, gay, bi-sexual and transgender (LGBT) issues


The EEOC has announced that coverage of LGBT individuals under Title VII’s sex discrimination provisions is an enforcement priority.  The EEOC accepts and investigates charges related to LGBT status, such as claims of sexual harassment or allegations that an adverse action was taken because of a person’s failure to conform to sex-stereotypes.  While the EEOC position is that Title VII covers every type of LGBT issue, it is far from clear that this EEOC position will be accepted in court.  Unless and until the Supreme Court rules, the courts of appeals in the various circuits are far from united on the issues.


In the last month, high profile news events have demonstrated the power of symbols to inspire strong reactions - both positive and negative.  For example, the display of the confederate flag evokes feelings of "heritage" or "racism," depending on the background of the viewer.  The rainbow symbol of gay pride has been widely displayed to celebrate the U.S. Supreme Court decision of marriage equality.  Yet marriage equality is contrary to the religious views of others.  What happens when employees display these or other politically and/or emotionally charged symbols in the workplace?  Should employees be allowed to display any politically charged symbols, photographs, memes, or texts in the workplace?  From the perspective of the management side employment attorney, the answer is probably not, for both legal and practical reasons.

From a legal perspective, an employer’s allowance of the posting of politically charged symbols by employees is akin to placing a target on the employer for a lawsuit.  The symbols posted by an employee may be used as evidence of the company’s attitude toward race or gender or any other protected category, even if they do not truly reflect the company’s corporate philosophy.  Earlier examples of problematic posted materials are calendars containing photos of scantily clad, seductively posed women.  There calendars were often distributed by vendors and posted in conspicuous places in all-male or predominantly male workplaces.  As the law forbidding sexual harassment has evolved, the majority of employers now recognize that such calendars can be considered offensive to some women, and the calendars can be used as very compelling visual evidence against the company in a sexual harassment lawsuit.  As a result, these calendars are no longer posted in many workplaces.

Employers face a similar issue with confederate flag imagery in the workplace.  Many African-Americans (and others) consider the confederate flag to be a symbol of racism.  An employer that allows employees to post such an image, or takes no action to prevent the posting of such an image, in the workplace runs the risk of seeing that image, or a photo of it, as evidence in a race discrimination lawsuit.

The rainbow imagery presents a different dilemma for the employer.  One employee’s gay pride image may offend another employee’s strongly held religious beliefs.  Does the employer then allow the religious employee to post religious materials that denounce same-sex marriage?  The most practical solution is to enact a uniform workplace décor policy that allows neither to be posted in the workplace.  Such a policy will address how employees can, and cannot decorate their workspaces.  The policy may provide that the only personal items an employee may display in his/her office or on a desk are photographs of family, friends or pets.  The company may even consider how many or how large the photographs may be.  The display of any other symbols or items can lead to discipline, up to, and including discharge.  Alternatively, a workplace décor policy may prohibit the display of any matter that could be considered "offensive" to other employees.  This type of policy is less restrictive yet also more subjective, and it requires the diligence of a designated management or human resources official to make the ultimate determination as to what is or is not considered "offensive." As in the case of all workplace policies, the company must be consistent in the enforcement of workplace décor policy.  However, even the drafting of a provision against "offensive" displays raises controversial legal issues, both in drafting and in application.  The drafting portion pertains to controversial National Labor Relations Board (NLRB) guidance on overbroad company policies that might "chill" legitimate union or other concerted activities by employees.  The theory is that a policy can be so broad as to prohibit or at least discourage employees from engaging in lawfully-protected activities such as supporting a political candidate on labor-backed issues, or engaging in some sort of protest against management actions pertaining to the employment relationship.  Further, in application, an employee may wish to display religiously-based symbols such as a statue of Jesus.  The answer to these type issues is not that appropriate rules cannot be drafted, but only that they must be drafted and/or reviewed by competent labor relations counsel.

In addition, there are the practical considerations of employee morale and company image on social media that favor the implementation of a workplace décor policy.  While some employees may feel that their "freedom of expression" is being limited by such a policy, the company has the right to control what is displayed on its premises.  Furthermore, the display of items that potentially offends a group of people is likely to undermine the morale and productivity of workers who belong to that group.

Finally, companies need to be aware of the power of social media to hold a company responsible for something posted by an individual employee.  A recent example of this is the controversy involving the clothing manufacturer Lilly Pulitzer.  A magazine’s photo tour of the company’s corporate headquarters showed two cartoons drawn by a Lilly Pulitzer employee that have been characterized as "fat-shaming."  One read "Just another day of fat, white, and hideous…you should just kill yourself."  The other read "Put it down, carb-face."  Pictures of the sketches were spread though social media, leading some consumers to call for boycotts of the brand, and the company to issue an apology for its employee’s actions.  Keep in mind that with the ubiquity of camera phones, anyone—an employee (especially a disgruntled one), vendor, visitor, service person-- can take a photo of a potentially offensive image in a workplace and post it to a number of social media sites, where it can then be re-posted by others.  When that happens, chances are that the image will be identified with the company, and not the individual employee who posted it.

In conclusion, many companies may wish to consider implementing a policy that limits the types of images and items that employees can display on the workplace premises.  Such a policy can prevent litigation or a morale or public relations nightmare.  In addition to the policy, it is recommended that management and/or human resource officials regularly check employee workspaces to ensure that the policy is being followed.  Such a policy can then be appropriately put into the company’s equal employment and harassment policies,  as putting the policy in the context of prohibitions against unlawful practices provides additional protection from NLRB claims that the policy is overbroad.


The NLRB issued on August 27, 2015 its long-awaited decision in Browning Ferris, 362 NLRB No. 186, which, as predicted, has greatly expanded the "joint employer" theory of employer liability under the National Labor Relations Act.  The new doctrine will increase the number of situations in which one company can be found liable for another company's unfair labor practices and breaches of collective bargaining agreements and the number of entities obligated to negotiate a collective bargaining agreement.  The Democrats on the Board are open about their goals, stating:  "Our aim today is to put the Board's joint-employer standard on a clear and stronger analytical foundation, and, within the limits set out by the Act, to best serve the federal policy of encouraging the practice and procedure of collective bargaining."

Historically, the NLRB has determined whether two separate entities are joint employers by assessing whether they exert such direct and significant control over the same employees that they determine those matters governing the essential terms and conditions of employment.  The current ruling would expand the concept of direct and shared control to one of whether one entity exercises indirect control over another entity's employees or has a right to do so. The Board indicates such decisions will be made on a case-by-case basis, and adds a great deal of uncertainty as to application of any standard.

The Board discusses the situation that where a "user" firm owns and controls the premises, dictates the essential nature of the job, and imposes the broad, operational contours of the work, and the supplier firm, pursuant to the user’s guidance, makes specific personnel decisions and administers job performance on a day-to-day basis, employees’ working conditions are a by-product of two layers of control, and thus two employers.   The Board emphasizes that the important factor is the right to control, in the common-law sense, which is probative of joint-employer status, as is the actual exercise of control, whether direct or indirect.

In making its ruling, the NLRB majority also introduces a concept previously unknown to collective bargaining.  That is, as a general rule, a joint employer will be required to bargain only with respect to such terms and conditions which it possesses the authority to control.

In its 3-2 ruling, the NLRB was split along party lines as the ruling was supported by the Board's three Democrats.  The two Republicans on the Board stated that:

"[T]he new joint-employer test fundamentally alters the law applicable to user-supplier, lessor-lessee, tenant-subsidiary, contractor-subcontractor, franchisor-franchisee, predecessor-successor, creditor-debtor, and contractor-consumer business relationships under the Act."

The dissent points out that the change in joint employer determinations will subject many entities to unprecedented new joint bargaining obligations that most do not even know they have, to potential joint liability, and to economic protest activity, including what has heretofore been unlawful secondary boycotts.  The dissent believes the majority’s test will foster substantial bargaining instability by requiring the non-consensual presence of many entities with diverse and conflicting interests on the "employer" side, and the involvement of multiple employers with each being required to bargain only with respect to the term of employment that it possesses the authority to control.  The dissent suggests that this new test will introduce segmented issue-by-issue negotiating and confusion over which entities must (or must not) engage in bargaining over particular employment terms.

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