Monday, September 29, 2014

Transgender Issues... On TV and On The Job

On TV, you can watch the travails of Mort, the transgender father of three adult children, as he transitions to life as Maura, in “Transparent,” a new series now streaming on

For employment lawyers, the issues raised by Mort/Maura have real life consequences. If a transgendered individual is working in a job and presenting as male, what happens when the employee informs the boss and co-workers that he is transitioning to female and beginning tomorrow will be showing up at work as a female?  What if the employee applies for the job as a male, but then informs the personnel director that when he reports to work on the first day, he will be a female? Does it matter if the employee has only begun the transition period, and wishes to present as a female but still has male genitalia? 

And of course, there’s the all important question... which bathroom will the person use?  While this ought to be a trivial issue, it was the sole issue in one case,  Ettsitty v. Utah Transit Authority (see discussion of this case below).  This author remembers the early days of Title VII, when women could be excluded from federal civilian jobs that required travel on NOAA ships, because there would be no “suitable” place for them to go to the bathroom or sleep.  Now, forty years later, the transgendered are finding the same obstacle placed in their path.

This week, the EEOC has taken aggressive steps by filing two law suits on behalf of women who were fired because they are transgendered.  In the first, EEOC v. Lakeland Eye Clinic, US District Court for the Middle District of Florida (Tampa Div.)according to the court complaint, Michael Branson worked for a year as the Clinic’s Director of Hearing Services, when he began to come to work wearing make-up and women’s tailored clothing.  A few months later, the clinic head questioned Branson about her changing appearance, and Branson informed the director that she was undergoing a gender transition from male to female and that she would be changing her name legally from Michael to Brandi. Two months later, the clinic fired Branson, telling her that the  position of Director of Hearing Services was being eliminated and that it was closing its hearing services division. But three months later, the clinic hired a replacement for Branson and continued to operate its hearing services division. Branson was replaced by a male employee who conformed to traditional male gender norms.

The second EEOC complaint was filed on behalf of Amiee Stephens, who while living as a man had been employed for seven years by the Harris Funeral Home as a Funeral Director/Embalmer.  She then informed her employer and co-workers in a letter that she was undergoing a gender transition from male to female and intended to dress in appropriate business attire at work as a woman from then on, asking for their support and understanding.  Two weeks later, Harris fired Stephens, telling her that what she was “proposing to do” was unacceptable. EEOC v. Harris Funeral Home, US District Court, Eastern District of Michigan (Southern Div.). 

The EEOC’s actions in filing these two court complaints follow its ruling in 2012 that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex.  Macy v. Dep't of Justice, EEOC Appeal No. 0120120821 (April 20, 2012).  That same month, the EEOC issued an instruction that complaints of discrimination on the basis of transgender status should be processed under Title VII of the Civil Rights Act of 1964 and through the federal sector EEO complaint process at 29 C.F.R. Part 1614 as claims of sex discrimination. See  “Processing Complaints of Discrimination by Lesbian, Gay, Bisexual, and Transgender (LGBT) Federal Employees.”  

Macy was a police detective in Phoenix, Arizona.  While still known as a male, Macy applied for a job with the Bureau of Alcohol, Tobacco, Firearms and Explosives, for which he was well qualified, and was told the job was his. Macy then informed the agency that she was in the process of transitioning from male to female.  Five days later, the agency informed Macy that due to federal budget reductions, the position was no longer available. In fact, the agency hired another candidate. The EEOC held:
the Commission hereby clarifies that claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII's sex discrimination prohibition, and may therefore be processed under Part 1614 of EEOC's federal sector EEO complaints process... 
That Title VII's prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex, is important.  If Title VII proscribed only discrimination on the basis of biological sex, the only prohibited gender-based disparate treatment would be when an employer prefers a man over a woman, or vice versa.  But the statute's protections sweep far broader than that, in part because the term "gender" encompasses not only a person's biological sex but also the cultural and social aspects associated with masculinity and femininity.
 In announcing its new policy, the EEOC was following a steady stream of federal cases, beginning in 2004 with Smith v. City of Salem, Ohio, 378 F. 3d 566 (6th Circuit 2004). 

Jimmie Smith, a lieutenant in the Salem, Ohio Fire Department, had worked without incident (as a male) for seven years.  But when he began to implement his treatment plan for Gender Identity Disorder ("GID") and came to work appearing and behaving in a more feminine way, Smith's co-workers noticed the changes and started to make comments that he was not "masculine enough." As a result, Smith notified his supervisor that he had been diagnosed with GID and was following a recommended course of treatment.

Smith’s supervisor and the city’s lawyers developed a plan to use Smith’s transsexualism and its manifestations as a basis for terminating his employment. They planned to require that Smith undergo three separate psychological evaluations with physicians of the City's choosing. They hoped that Smith would either resign or refuse to comply. If he refused to comply, they planned to fire him for insubordination.  Upon learning of the requirement, Smith filed a charge with the EEOC and received a"right to sue" letter.  Four days later, the city suspended Smith for one shift, based on his alleged infraction of a city policy that had not yet been enacted. 

The trial court threw Smith's sex discrimination case out.  On appeal, however, the US Court of Appeals for the 6th Circuit held:

Having alleged that his failure to conform to sex stereotypes concerning how a man should look and behave was the driving force behind Defendants' actions, Smith has sufficiently pleaded claims of sex stereotyping and gender discrimination.  

In Schroer v. Billington577 F. Supp. 2d 293 (D.D.C. 2008), the Library of Congress rescinded an offer of employment it had extended to a transgender job applicant after the applicant informed the Library's hiring officials that she intended to undergo a gender transition.    The case is remarkably similar to Macy: Schroer was highly qualified and was hired by the Library of Congress Congressional Research Service as a Terrorism Specialist. After accepting the position, but before reporting for the first day of work, Schroer met with the hiring official and informed her that she was transgendered, was transitioning to female, and would be reporting to work as female.  A few days later, the hiring official called Schroer and rescinded the job offer, stating, “you are not a good fit, not what we want.”  

The U.S. District Court for the District of Columbia entered judgment in favor of the plaintiff on her Title VII sex discrimination claim.  According to the district court, it did not matter "for purposes of Title VII liability 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."  

Glenn Morrison had similar problems. In 2005, she was diagnosed with GID and began to take steps to transition from male to female under the supervision of health care providers. This process included living as a woman outside of the workplace, which is a prerequisite to sex reassignment surgery. In October 2005, while still presenting as a man, Glenn was hired as an editor by the Georgia General Assembly.  A year later, Glenn informed her direct supervisor that she was a transsexual and was in the process of becoming a woman. 

On Halloween in 2006, when the office employees were permitted to come to work wearing costumes, Glenn came to work presenting as a woman. When the office head saw her, he told her that her appearance was not appropriate and asked her to leave the office. The office head deemed her appearance inappropriate "[b]ecause he was a man dressed as a woman and made up as a woman." The office head stated that "it's unsettling to think of someone dressed in women's clothing with male sexual organs inside that clothing," and that a male in women's clothing is "unnatural." Following this incident, the office head met with Glenn’s direct supervisor to discuss Glenn's appearance on Halloween of 2006 and was informed by the supervisor that Glenn intended to undergo a gender transition.

The following year, Glenn informed her supervisor that she was ready to proceed with gender transition and would begin coming to work as a woman and was also changing her legal name. The supervisor notified the office head, who subsequently terminated Glenn because "Glenn's intended gender transition was inappropriate, that it would be disruptive, that some people would view it as a moral issue, and that it would make Glenn's coworkers uncomfortable."

The US Court of Appeals for the 11th Circuit held:

discrimination against a transgender individual because of her gender-nonconformity is sex discrimination, whether it's described as being on the basis of sex or gender.

Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011).  

Less successful was the plaintiff in Ettsitty v. Utah Transit Authority, 502 F. 3d 1215 (10th Circuit 2007).  Michael Etsitty was a bus operator working for the Utah Transit Authority (“UTA”) in Salt Lake City, Utah.  After successfully completing a six-week training course, Etsitty was assigned to a position as an extra-board operator. As an operator on the extra board, Etsitty was not assigned to a permanent route or shift. Instead, she would fill in for regular operators who were on vacation or called in sick. As a result, Etsitty drove many of UTA's 115 to 130 routes in the Salt Lake City area over approximately ten weeks as an extra board operator. While on their routes, UTA employees use public restrooms.

Throughout her training period at UTA, Etsitty presented herself as a man and used male restrooms. However, for the previous four years, Etsitty had been living and dressing as a woman outside of work, using the name of "Krystal." She took female hormones, but had not yet completed the sex reassignment surgery.

Soon after being hired, Etsitty informed her supervisor that she was a transsexual. She explained that she would begin to appear more as a female at work and that she would eventually change her sex. The supervisor expressed support for Etsitty and stated he did not see any problem with her being a transsexual. After this meeting, Etsitty began wearing makeup, jewelry, and acrylic nails to work. She also began using female restrooms while on her route.

The operations manager, hearing a rumor that there was a male operator who was wearing makeup, spoke to Etsitty’s supervisor, who informed her Etsitty was a transsexual and would be going through a sex change. The operations manager expressed concern about whether Etsitty would be using a male or female restroom. The operations manager and the human resources manager met with Etsitty and asked where she was in the sex change process and whether she still had male genitalia. Etsitty explained she still had male genitalia because she did not have the money to complete the sex change operation. The operations manager expressed concern about the possibility of liability for the UTA if a UTA employee with male genitalia was observed using the female restroom. They also expressed concern that Etsitty would switch back and forth between using male and female restrooms.

Following their meeting with Etsitty, the managers placed Etsitty on administrative leave and ultimately terminated her employment. They stated that it was not possible to accommodate Etsitty's restroom usage because she typically used public restrooms along her routes rather than restrooms at the UTA facility.  They testified that it would not be appropriate to inquire into whether people along UTA routes would be offended if a transsexual with male genitalia were to use the female restrooms.  They indicated Etsitty would be eligible for rehire after completing sex reassignment surgery. At the time of the termination, UTA had received no complaints about Etsitty's performance, appearance, or restroom usage.

The Court determined that Etsitty could not establish a prima facie case because discrimination against a transsexual based on the person's status as a transsexual is not discrimination because of sex under Title VII.  It acknowledged cases that took the contrary position, but concluded:

Scientific research may someday cause a shift in the plain meaning of the term "sex" so that it extends beyond the two starkly defined categories of male and female. See Schroer v. Billington, 424 F.Supp.2d 203, 212-13 & n. 5 (D.D.C.2006)(noting "complexities stem[ming] from real variations in how the different components of biological sexuality . . . interact with each other, and in turn, with social psychological, and legal conceptions of gender")

- This blog post was prepared by Elizabeth L. Newman.  You may reach her at

Thursday, September 18, 2014

NELA submits comments supporting our civil service protections

On Tuesday, September 16, 2014, the National Employment Lawyers Association (NELA) submitted comments to the Merit Systems Protection Board (MSPB) about the new procedures for appeals by VA managers.
MSPB’s new procedures are necessary because this Summer, Congress passed the Veterans’ Access to Care through Choice, Accountability, and Transparency Act of 2014, Public Law 113-146 (the Act). President Obama signed it on August 7, 2014, and it took effect immediately. Section 707 of the Act creates new rules for the removal or transfer of Senior Executive Service employees of the Department of Veterans Affairs (covered SES employees) for performance or misconduct. This new section is codified as 38 U.S.C. 713. Under 38 U.S.C. 713(a), the Secretary of the VA may remove or transfer a covered SES employee for performance or misconduct. The employee then has a right to appeal to the MSPB within 7 days. 38 U.S.C. 713(d)(2)(B). The MSPB administrative judge must issue a decision within 21 days. 38 U.S.C. 713(e). If a decision is not issued within 21 days, the Secretary’s decision is final. 38 U.S.C. 713(e)(3). An administrative judge’s decision is not subject to any further appeal. 38 U.S.C. 713(e)(2).

Paragraph (b) of section 707 of the Act requires the MSPB to issue procedures for processing these appeals, and MSPB did that on August 19, 2014. MSPB created a new set of regulations, 5 CFR Part 1210, just for appeals under this Act. The comments with the new regulations state, “the MSPB questions the constitutionality of any provision of law that prohibits presidentially-appointed, Senate-confirmed Officers of the United States Government from carrying out the mission of the agency to which they were appointed and confirmed to lead.” 

MSPB expresses some frustration with the severe constraints Congress placed on it for these appeals. Congress was apparently unaware that when a federal agency fires an employee, that employee does not get to continue working during a civil service appeal to the MSPB. The employee would already be out of the Agency during the time the appeal is pending. To us, as advocates for federal employees, it is disturbing that Congress would lash out against the civil service system in response to evident agency neglect to use the tools already available to address misconduct and poor performance.

Still, as Congress did pass the law, and MSPB has to follow the law, KCNF attorneys joined with other NELA members to prepare these comments. The comments make clear that, “NELA strongly opposes Section 707 as an abrogation of due process and as a slippery slope to eroding civil service protections[.]

NELA urged the Board to adopt a new 5 C.F.R. § 1210.20(e) stating that, “5 CFR §§ 1201.3(c), 1201.154(a), 1208.11, 1209.2(d) shall have no application to appeals under Section 707, and Section 707 appeals shall not be considered to be an election of remedies barring pursuit of other statutory or regulatory appeal or complaint processes.” This proposed rule would preserve for whistleblowers the right to pursue a claim of reprisal under the Whistleblower Protection Act even if the Section 707 proceeding resulted in an adverse outcome (such as failure of the MSPB hearing judge to issue a decision within 21 days). It would also preserve the right of employees to pursue claims of discrimination through the EEO process and the rights of veterans to pursue their USERRA claims.

NELA also urged the Board to amend 5 C.F.R. § 1201.20(c) to state also that, “A decision by an administrative judge under this Part shall not have the effect of res judicata or collateral estoppel in any proceeding not filed pursuant to 38 U.S.C. § 713(e)(2).” Since the 21-day process fails to comply with basic due process, the outcome should not prevent anyone from pursuing other remedies. See Hansberry v. Lee, 311 U. S. 32, 40 (1940).

NELA also asked the Board to be more specific about the information the VA should provide automatically has part of its “response file.” Since there is so little time for discovery during the 21 days, NELA urged the Board to spell out the information often needed in appeals, particularly exculpatory information, and require the VA to produce it. NELA urged the Board to permit depositions since they are central to preparing cases that hinge on credibility determinations.

NELA is also concerned that the short time for a decision would lead to rushed hearings and micromanagement of the case by administrative judges. NELA asked the Board to allow each side a minimum of three (3) hours to present their case, with the time to be allocated however that party wants.

NELA asked the Board to provide that the Agency would pay for a transcript of the hearing, and provide the transcript to all parties, the Inspector General, and to the congressional committees. Congress passed this Act because of the scandal of poor service from VA facilities. Congress wants more accountability for the VA, and sharing the transcripts would be a step in that direction.

Finally, NELA noted that Congress’ concern about delays in processing appeals is a concern more apt for some other agencies that handle federal employee appeals, such as EEOC and the Department of Labor’s Office of Administrative Law Judges (OALJ). NELA urged Congress to increase funding for these agencies and the MSPB so they will have adequate staff to process appeals more timely.

Andrew J. Perlmutter, Chair of the Rulemaking Committee of NELA’s Federal Employee Rights Practice Group, coordinated the comments. KCNF attorneys George M. Chuzi, Elaine L. Fitch, Nina Ren and myself contributed to these comments. Other contributors included Susan E. Jewell, Elbridge W. Smith, Doris J. Dabrowski, Joseph Kaplan, Danielle Bess Obiorah and Edward M. Passman. NELA’s Executive Director, Teri Chaw, signed the comments on behalf of NELA. We thank all of them for this well written and thoughtful contribution to public policy. The comments can also serve as a reference for future public debate on attempts to curb the civil rights of federal employees.

As of this writing, there are no other comments posted about these rules.

By Richard Renner

Tuesday, September 2, 2014

DC Bans the Box

Getting a job is hard enough, but what happens if you have a criminal record?  You fill out a job application, and one of the questions is, “Do you have a criminal record?” What are the chances that the employer is even going to read the rest of the application to find out your qualifications, much less call you in for an interview or seriously consider you for the job? 

In the District of Columbia, about 60,000 residents have criminal records.  Studies show that someone with a criminal record is 50% less likely to get a call back for a job interview.

On August 22, 2014, the DC Mayor signed the  "Fair Criminal Record Screening Amendment Act of 2014."  This law will go into effect on Sept. 22, 2014, unless the US Congress rejects it (this is a by-product of “Home Rule,” but it is not expected that Congress will veto the law). It is called a “Ban the Box” law because it prohibits employers from requiring job applicants to put a check mark in a box on a job application indicating that he or she has a criminal record.  Note that this law refers to criminal convictions, not arrests.  Under existing law employers already are prohibited from asking about an applicants' arrest history. 

The new law prohibits employers from asking applicants to answer questions about their criminal records until after the employer makes a conditional job offer.  An employer is defined as "any person, company, corporation, firm, labor organization, or association, . . . that employs more than 10 employees in the District of Columbia."  It does not include the federal government or the judicial branch, nor does it apply if "any federal or District law or regulation requires the consideration of an applicant's criminal history for the purposes of employment." 

In other words, the job offer is contingent on the results of the employer’s inquiry into the applicant’s criminal record, and the employer may only withdraw the offer for a “legitimate business reason."  What is considered a legitimate business reason can be based on whether the criminal offense has a bearing on the applicant’s fitness for the specific position, how long ago the crime occurred, the applicant’s age at the time of the crime, and the seriousness of the crime, among other factors.

Employers may still attach additional conditions to the conditional offer, such as proof of eligibility to work or passing a pre-employment physical, so long as those conditions are expressly communicated to the applicant at the time of the conditional offer.

An applicant who believes that an employer unfairly considered his or her criminal conviction may demand that the employer provide a copy of all records that the employer obtained in the course of considering the applicant for the job, and may file a complaint with the DC Office of Human Rights.

The applicant has no right to file a court case on his or her own, but the DC Office of Human Rights may ask the Commission on Human Rights to issue a finding that the employer violated the law.  In that case, the Commission may fine the employer with a penalty of between $1,000 and $5,000, depending on the size of the employer, and will pay half of the amount received to the complaining applicant. 

For job applicants, the new law means that they will have the chance to make their best case as to why they are the right person for the job without fear that the employer will simply discard the application upon learning that the candidate has been convicted.  For employers, the new law means that they may not reflexively reject a candidate with a criminal record, but may still decide to withdraw a job offer if they have a legitimate business reason for concluding that the criminal record makes it impossible to give the candidate the job. 

Similar “Ban the Box” legislation is also in effect in the cities of Philadelphia, Seattle, Newark, San Francisco, Baltimore, and Rochester, NY.  Some states, including Hawaii, Massachusetts, Minnesota, and Rhode Island have similar state-wide bans. Similar laws in Illinois and New Jersey will go into effect in early 2015.

Employers with operations in Washington, D.C. should revise their employment applications, educate their interviewing managers, and prepare to promptly comply with this new law.  

       - This blog entry was prepared by Elizabeth L. Newman.  You may reach her at