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Slide 1 Sexual Stereotyping & Gender Identity In The Workplace Presented by: Susan Fahey Desmond| Jackson Lewis LLP.

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Presentation on theme: "Slide 1 Sexual Stereotyping & Gender Identity In The Workplace Presented by: Susan Fahey Desmond| Jackson Lewis LLP."— Presentation transcript:

1 Slide 1 Sexual Stereotyping & Gender Identity In The Workplace Presented by: Susan Fahey Desmond| Jackson Lewis LLP

2 Slide 2 SEXUAL STEREOTYPING QUIZ 1.Would you rather bake or grill? 2.Did you play with dolls or cars growing up? 3.Where do you spend your spare time? A.Clothing Stores B.Home Improvement Stores C.Bookstores D.Sporting Goods Stores E.At Home

3 Slide 3 SEXUAL STEREOTYPING QUIZ 4.How concerned are you about your appearance? A.Not very B.Somewhat C.Very 5.How much money do you spend per month on your hair? A.Less than $50 B.Less than $100 C.More than $200 6.Do you regularly receive manicures/ pedicures?

4 Slide 4 SEXUAL STEREOTYPING QUIZ 7.How many pairs of shoes do you own? a. Do you own clogs? a. Do you own clogs? b. Do you own cowboy boots? b. Do you own cowboy boots? c. Do you own golf shoes? c. Do you own golf shoes? d. Do you own hiking boots? d. Do you own hiking boots? 8.In which subject did you excel at school? A.Math B.Theater C.English D.Physical Education

5 Slide 5 SEXUAL STEREOTYPING QUIZ 9.What is your favorite form of entertainment? A.Boxing B.Cher concerts C.WNBA games D.Book club meetings E.Watching drag shows F. TV sports 10. Who pays the bills in your household?

6 Slide 6 SEXUAL STEREOTYPING QUIZ 11.What did you dream of becoming when you grew up? A.Firefighter B.Rock star C.Athlete D.Parent E.Librarian

7 Slide 7 SEXUAL STEREOTYPING QUIZ 12.What type of magazine do you read most often? A.Fashion/Entertainment B.Automotive C.Sports D.Home Decor/Remodeling E. Chess 13.What type of car do you drive? A.Subaru B.Porsche C.Mustang D.Mini

8 Slide 8 SEXUAL STEREOTYPING QUIZ 14.What best describes your job title? A. CEO/Executive B. Administrative/Support C. Human Resources D. Finance/Accounting E. Management 15.Who cleans your home/apartment? 16.Who takes out the garbage?

9 Slide 9 SEXUAL STEREOTYPING QUIZ 17.Who makes the home furnishing decisions? A.You B.Your partner C.Your decorator D.VALASSIS 18. Do you leave the toilet seat up or down? 19. As a child, did you imagine what your wedding would be like?

10 Slide 10 Have you ever…..? Received flowers at work?Received flowers at work? Spent a weekend fishing? (If so, did you bait your own hook?)Spent a weekend fishing? (If so, did you bait your own hook?) Ever been afraid to walk outside at night?Ever been afraid to walk outside at night? Ever worn high heels?Ever worn high heels? Worried about the thread count of your sheets?Worried about the thread count of your sheets?

11 Slide 11 Gender Identity and How it Differs from Gender Expression Gender identity is a persons innate sense of his or her gender.Gender identity is a persons innate sense of his or her gender. Gender expression is the way in which a person presents his or her gender to the outside world.Gender expression is the way in which a person presents his or her gender to the outside world.

12 Slide 12 What is sex stereotyping? Whether individuals identify as male or female, gay, lesbian, bisexual, heterosexual or transgender, many people transgress traditional gender roles:Whether individuals identify as male or female, gay, lesbian, bisexual, heterosexual or transgender, many people transgress traditional gender roles: –a female with short hair is called "sir" in public; –a boyish-looking lesbian receives curious glances or angry stares in the ladies room; –a gay teenager is reprimanded for "not acting like a man." All of these individuals face bias based on preconceived notions of gender – what it means to look and act like a man or a woman.All of these individuals face bias based on preconceived notions of gender – what it means to look and act like a man or a woman.

13 Slide 13 Has Sex Stereotyping Become Mainstream? During a Republican National Convention, Arnold Schwarzenegger declared: "And to those critics who are so pessimistic about our economy, I say: Don't be economic girlie men."During a Republican National Convention, Arnold Schwarzenegger declared: "And to those critics who are so pessimistic about our economy, I say: Don't be economic girlie men." Schwarzenegger first used the "girlie men" term to attack his political opponents. Then, he used it to characterize the California legislators with whom he disagreed regarding the state's budget.Schwarzenegger first used the "girlie men" term to attack his political opponents. Then, he used it to characterize the California legislators with whom he disagreed regarding the state's budget.

14 Slide 14 Has Sex Stereotyping Become Mainstream? Some individuals offended by Schwarzeneggers comments asked for an apology.Some individuals offended by Schwarzeneggers comments asked for an apology. Instead of apologizing, a spokesperson for Schwarzenegger described the comment as an an effective way to convey wimpiness. Later, Schwarzenegger complained that people should lighten up and that the term was meant as a joke.Instead of apologizing, a spokesperson for Schwarzenegger described the comment as an an effective way to convey wimpiness. Later, Schwarzenegger complained that people should lighten up and that the term was meant as a joke.

15 Slide 15 What Other Expressions Denote Sex Stereotypes? She was told she should show her softerShe was told she should show her softer side more often. At the meeting, she took it like a man.At the meeting, she took it like a man. He needed to be his own man.He needed to be his own man. Hes just being a sissy.Hes just being a sissy. Man up.Man up. He/She throws like a girl.He/She throws like a girl. Comparisons:Comparisons: –Strong men vs. domineering women –Assertive men vs. aggressive women

16 Slide 16 Overview of Federal Gender Discrimination Laws There is no federal law that protects against discrimination based on gender identity or expression.There is no federal law that protects against discrimination based on gender identity or expression. As currently drafted, the Employment Non-Discrimination Act (ENDA) prohibits sexual orientation discrimination but does not include gender identity.As currently drafted, the Employment Non-Discrimination Act (ENDA) prohibits sexual orientation discrimination but does not include gender identity.

17 Slide 17 Overview of Federal Gender Discrimination Laws Title VII of the Civil Rights Act of 1964 prohibits discrimination because of... sex.Title VII of the Civil Rights Act of 1964 prohibits discrimination because of... sex. What does the term mean because of … sex?What does the term mean because of … sex?

18 Slide 18 Overview of Federal Gender Discrimination Laws Initial view from federal courts was that discrimination against transgender plaintiffs is not prohibited discrimination because of... sex.Initial view from federal courts was that discrimination against transgender plaintiffs is not prohibited discrimination because of... sex. –See, e.g., Ulane v. Eastern Airlines, Inc., (7th Cir. 1984) (holding MTF transsexual pilot not protected from discrimination under Title VII).

19 Slide 19 Overview of Federal Gender Discrimination Laws These courts viewed the term sex in Title VII as narrowly confined to discrimination against women because they are women and against men because they are men.These courts viewed the term sex in Title VII as narrowly confined to discrimination against women because they are women and against men because they are men. –In Ulane v. Eastern Airlines, the court held discrimination against Ulane was not based on her sex (as male or female), but on her decision to change sex. –But underlying this claim is the fact the airline discriminated because its belief someone born with male anatomy should not identify, act, dress or change sex designation to female.

20 Slide 20 Price Waterhouse v. Hopkins (1989) U.S. Supreme Court decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) called these rulings into question.U.S. Supreme Court decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) called these rulings into question. Held that a woman who failed to conform to her employers gender stereotypes regarding how women should look and act was protected from discrimination by Title VII.Held that a woman who failed to conform to her employers gender stereotypes regarding how women should look and act was protected from discrimination by Title VII.

21 Slide 21 Price Waterhouse v. Hopkins (1989) Hopkins, a female accountant, was advised by certain partners in the firm that she could improve her partnership chances if she would walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.Hopkins, a female accountant, was advised by certain partners in the firm that she could improve her partnership chances if she would walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry. Various partners described Hopkins as macho, in need of a course in charm school, a lady using a foul language, and somebody who was a tough-talking, somewhat masculine, hard-nosed manager.Various partners described Hopkins as macho, in need of a course in charm school, a lady using a foul language, and somebody who was a tough-talking, somewhat masculine, hard-nosed manager.

22 Slide 22 Price Waterhouse v. Hopkins (1989) Hopkins sued under Title VII for sex discrimination after she resigned following the firms denial of partnership.Hopkins sued under Title VII for sex discrimination after she resigned following the firms denial of partnership. Justice Brennan, writing for the plurality, held that in the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.Justice Brennan, writing for the plurality, held that in the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.

23 Slide 23 Price Waterhouse v. Hopkins (1989) The Price Waterhouse decision stands for the proposition that Title VIIs prohibition of discriminationbecause of sex encompasses discrimination based upon an individuals failure to conform to gender-specific stereotypes.The Price Waterhouse decision stands for the proposition that Title VIIs prohibition of discriminationbecause of sex encompasses discrimination based upon an individuals failure to conform to gender-specific stereotypes. Courts have applied this rationale to cases involving male and female stereotypes.Courts have applied this rationale to cases involving male and female stereotypes.

24 Slide 24 Supreme Court Rules on Same Sex Harassment: Oncale v. Sundowner Offshore Services, Inc. (1998) Plaintiff worked on an offshore oil rig in an all-male working environment. He was subjected to numerous incidents of harassment including:Plaintiff worked on an offshore oil rig in an all-male working environment. He was subjected to numerous incidents of harassment including: –A co-worker with some supervisory authority over him exposed himself. –A co-worker/supervisor threatened to rape him.

25 Slide 25 Supreme Court Rules on Same Sex Harassment: Oncale v. Sundowner Offshore Services, Inc. (1998) Plaintiff complained about the conduct to another manager who called Plaintiff a faggot and told Plaintiff that is how these co- workers have acted in the past. Plaintiff then quit, claiming he was sexually harassed. Neither Plaintiff nor his co-workers was an admitted or apparent homosexual.Plaintiff complained about the conduct to another manager who called Plaintiff a faggot and told Plaintiff that is how these co- workers have acted in the past. Plaintiff then quit, claiming he was sexually harassed. Neither Plaintiff nor his co-workers was an admitted or apparent homosexual.

26 Slide 26 Supreme Court Rules on Same Sex Harassment: Oncale v. Sundowner Offshore Services, Inc. (1998) By a 9-0 decision, the Supreme Court held same-sex harassment is actionable under Title VII if it is engaged in because of … sex.By a 9-0 decision, the Supreme Court held same-sex harassment is actionable under Title VII if it is engaged in because of … sex. –We hold today that nothing in Title VII necessarily bars a claim of discrimination because of … sex merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex.

27 Slide 27 Supreme Court Rules on Same Sex Harassment: Oncale v. Sundowner Offshore Services, Inc. (1998) Argument against allowing same-sex harassment claims:Argument against allowing same-sex harassment claims: –The workplace will now require asexuality or androgyny. Justice Scalias Response:Justice Scalias Response: –No! Following the statute will ensure that courts and juries do not mistake ordinary socializing in the workplace, such as male-on- male horseplay or intersexual flirtation for discriminatory conditions of employment. –Title VII requires careful consideration of the social context in which particular behavior occurs and is experienced by its target.

28 Slide 28 Supreme Court Rules on Same Sex Harassment: Oncale v. Sundowner Offshore Services, Inc. (1998) Justice Scalias Response (cont):Justice Scalias Response (cont): –For example, a football coach slapping the buttocks of a player as he heads onto the field is not the same as a coach slapping the buttocks of his (male or female) secretary back in the office. –Trust in judges and juries to distinguish roughhousing among members of the same sex and severely hostile or abusive conduct.

29 Slide 29 Supreme Court Rules on Same Sex Harassment: Oncale v. Sundowner Offshore Services, Inc. (1998) Guidance from the Court on the evidence available to prove same-sex harassment:Guidance from the Court on the evidence available to prove same-sex harassment: –Proof the harasser was motivated by sexual desire (i.e. the homosexual harasser); –Proof the victim was harassed in such sex- specific and derogatory terms by another of the same gender as to make it clear that the harasser was motivated by general hostility to the presence of members of his/her own gender in the workplace (the enmity harasser); or –Proof of discrimination because of … sex by offering direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace (thediscriminatory harasser).

30 Slide 30 Post-Oncale Decisions on Same-Sex Harassment Law: Schmedding v. Tnemec Co. (8th Cir. 1999) Schmeddings co-workers patted his buttocks, asked him to perform sexual acts, called him a "homo" and a "jerk off, and simulated a sexual act using the doorframe to his office.Schmeddings co-workers patted his buttocks, asked him to perform sexual acts, called him a "homo" and a "jerk off, and simulated a sexual act using the doorframe to his office. Plaintiff alleged that he was discriminated against on the basis of his perceived sexual preference, but stated this was because of his gender in that by falsely labeling the plaintiff as a homosexual, his male co-workers were debasing his masculinity, something they would not do to female co-workers.Plaintiff alleged that he was discriminated against on the basis of his perceived sexual preference, but stated this was because of his gender in that by falsely labeling the plaintiff as a homosexual, his male co-workers were debasing his masculinity, something they would not do to female co-workers.

31 Slide 31 Post-Oncale Decisions on Same-Sex Harassment Law: Schmedding v. Tnemec Co. (8th Cir. 1999) The court found sufficient allegations of harassment because the plaintiff was willing to amend his complaint to delete the termperceived sexual preference.The court found sufficient allegations of harassment because the plaintiff was willing to amend his complaint to delete the termperceived sexual preference.

32 Slide 32 Post-Oncale Decisions on Same-Sex Harassment Law: Llampallas v. Mini- Circuits Lab (11th Cir. 1998) Elba Llampallas had a consensual sexual relationship with a woman who, after their relationship began, became her supervisor at work.Elba Llampallas had a consensual sexual relationship with a woman who, after their relationship began, became her supervisor at work. When the relationship ended, the supervisor threatened to have Llampallas fired if she did not resume their relationship.When the relationship ended, the supervisor threatened to have Llampallas fired if she did not resume their relationship. As part of a scheme to manipulate the company into firing Llampallas, the supervisor told the president of the company that she was resigning because she could no longer work with Llampallas.As part of a scheme to manipulate the company into firing Llampallas, the supervisor told the president of the company that she was resigning because she could no longer work with Llampallas. After acting as though he would transfer Llampallas to another facility, the president terminated her employment.After acting as though he would transfer Llampallas to another facility, the president terminated her employment.

33 Slide 33 Post-Oncale Decisions on Same-Sex Harassment Law: Llampallas v. Mini- Circuits Lab (11th Cir. 1998) The Eleventh Circuit found for the employer, holding that Llampallas failed to establish a causal link between her termination and the supervisors discriminatory animus towards her.The Eleventh Circuit found for the employer, holding that Llampallas failed to establish a causal link between her termination and the supervisors discriminatory animus towards her. The court explained the president broke the chain of causation between the supervisors harassment and the decision to terminate Ms. Llampallas because:The court explained the president broke the chain of causation between the supervisors harassment and the decision to terminate Ms. Llampallas because: –the president behaved reasonably in response to the supervisors threat to quit; and –Llampallas failed to avoid the consequences of the supervisors threat by not informing the president of her relationship and the supervisors previous threat to have her fired.

34 Slide 34 Post-Oncale Gender Stereotyping & Feminine Men: Nichols v. Azteca Restaurant Enterprises (9th Cir. 2001) Antonio Sanchez, a male restaurant employee, was subjected to a relentless campaign of insults, name-calling, and vulgarities, such as being referred to as she and her; being mocked for walking and carrying his serving tray like a woman; and being taunted as a f___king female whore.Antonio Sanchez, a male restaurant employee, was subjected to a relentless campaign of insults, name-calling, and vulgarities, such as being referred to as she and her; being mocked for walking and carrying his serving tray like a woman; and being taunted as a f___king female whore.

35 Slide 35 Post-Oncale Gender Stereotyping & Feminine Men: Nichols v. Azteca Restaurant Enterprises (9th Cir. 2001) The Ninth Circuit held, the systematic abuse directed at Sanchez reflected a belief that Sanchez did not act as a man should act … We conclude that this verbal abuse was closely linked to gender.The Ninth Circuit held, the systematic abuse directed at Sanchez reflected a belief that Sanchez did not act as a man should act … We conclude that this verbal abuse was closely linked to gender. Price Waterhouse applies with equal force to a man who is discriminated against for acting too feminine. Price Waterhouse applies with equal force to a man who is discriminated against for acting too feminine.

36 Slide 36 Sex Stereotyping to Prove Same-Sex Harassment: Heller v. Columbia Edgewater Country Club (D. Or. 2002) The plaintiff, an openly lesbian woman, sued her former employer under Title VII for discriminating against her because she was too masculine.The plaintiff, an openly lesbian woman, sued her former employer under Title VII for discriminating against her because she was too masculine. The plaintiff presented evidence that her female supervisor made disparaging and harassing comments based on gender stereotypes, including:The plaintiff presented evidence that her female supervisor made disparaging and harassing comments based on gender stereotypes, including: –Oh, I thought you were a man. –I thought you wore the pants.

37 Slide 37 Sex Stereotyping to Prove Same-Sex Harassment: Heller v. Columbia Edgewater Country Club (D. Or. 2002) In denying the defendants motion for summary judgment, the court explained that Title VII prohibits harassment based on a perception that the person did not conform to [the defendants] stereotype of how a woman ought to behave.In denying the defendants motion for summary judgment, the court explained that Title VII prohibits harassment based on a perception that the person did not conform to [the defendants] stereotype of how a woman ought to behave. In this case, the defendant perceived the plaintiff to be gender non-conforming because she is attracted to and dates other women, whereas [the defendant] believes that a woman should be attracted to and date only men.In this case, the defendant perceived the plaintiff to be gender non-conforming because she is attracted to and dates other women, whereas [the defendant] believes that a woman should be attracted to and date only men.

38 Slide 38 Pregnancy Based Stereotypes: Back v. Hastings on Hudson Union Free School District (2d Cir. 2004) Elena Back was a psychologist at an elementary school. She was placed on a three-year tenure-track when she was hired.Elena Back was a psychologist at an elementary school. She was placed on a three-year tenure-track when she was hired. During her first two years of employment, she received excellent performance reviews from her two female supervisors and was repeatedly told she would receive tenure.During her first two years of employment, she received excellent performance reviews from her two female supervisors and was repeatedly told she would receive tenure. As Backs tenure drew closer, however, she took a three-month maternity leave.As Backs tenure drew closer, however, she took a three-month maternity leave.

39 Slide 39 Pregnancy Based Stereotypes: Back v. Hastings on Hudson Union Free School District (2d Cir. 2004) After her return from maternity leave, Backs supervisors began criticizing her performance and making comments about her devotion to the job:After her return from maternity leave, Backs supervisors began criticizing her performance and making comments about her devotion to the job: –She was asked how she was planning on spacing her offspring. –She was told she would not show the same level of commitment [she] had shown because [she] had little ones at home and that the job was not for a mother.

40 Slide 40 Pregnancy Based Stereotypes: Back v. Hastings on Hudson Union Free School District (2d Cir. 2004) Back sued after she was denied tenure and her employment was subsequently terminated.Back sued after she was denied tenure and her employment was subsequently terminated. Citing Price Waterhouse v. Hopkins, the court held that employment decisions based on gender stereotypes constitute gender discrimination:Citing Price Waterhouse v. Hopkins, the court held that employment decisions based on gender stereotypes constitute gender discrimination: –notions that mothers are insufficiently devoted to work, and that work and motherhood are incompatible, are properly considered to be themselves, gender-based.

41 Slide 41 Lesbian Based Stereotypes: Dawson v. Bumble & Bumble (2d Cir. 2005) Dawson, a lesbian, alleged she was denied a promotion and eventually terminated for her non-conformity to gender stereotypes.Dawson, a lesbian, alleged she was denied a promotion and eventually terminated for her non-conformity to gender stereotypes. Dawson believed her employer wanted to fire her because of her dyke attitude and alleged that, when she was terminated, her employer stated that she could not be sent to a salon outside of New York City because, People wont understand you... youll frighten them.Dawson believed her employer wanted to fire her because of her dyke attitude and alleged that, when she was terminated, her employer stated that she could not be sent to a salon outside of New York City because, People wont understand you... youll frighten them.

42 Slide 42 Lesbian Based Stereotypes: Dawson v. Bumble & Bumble (2d Cir. 2005) Although acknowledging that one can fail to conform to gender stereotypes through behavior or appearance, the court rejected Dawsons Title VII claim of impermissible gender stereotyping.Although acknowledging that one can fail to conform to gender stereotypes through behavior or appearance, the court rejected Dawsons Title VII claim of impermissible gender stereotyping. –The evidence indicated that the salon regularly employed sexually non-stereotypical individuals, including a female-to-male transsexual and both bi-sexual and gay employees, some with very androgynous appearances. –Unlike the plaintiff in Price Waterhouse, Dawson was never told by her employer that she needed to act or speak in a more feminine manner.

43 Slide 43 The Reasonable Woman Standard: EEOC v. National Education Association (9th Cir. 2005) On September 2, 2005, the Ninth Circuit Court of Appeals ruled areasonable women standard applies to workplace abusive conduct, even if there is no sexual content to the behavior.On September 2, 2005, the Ninth Circuit Court of Appeals ruled areasonable women standard applies to workplace abusive conduct, even if there is no sexual content to the behavior.

44 Slide 44 The Reasonable Woman Standard: EEOC v. National Education Association (9th Cir. 2005) Three female employees filed EEOC charges against National Education Association-Alaska (NEA) alleging the organization created a sex-based hostile work environment and constructively discharged one of them.Three female employees filed EEOC charges against National Education Association-Alaska (NEA) alleging the organization created a sex-based hostile work environment and constructively discharged one of them. Female employees alleged a male supervisor with little or no provocation, shouted and screamed at them, used foul language, invaded their personal space and used threatening physical gestures.Female employees alleged a male supervisor with little or no provocation, shouted and screamed at them, used foul language, invaded their personal space and used threatening physical gestures.

45 Slide 45 The Reasonable Woman Standard: EEOC v. National Education Association (9th Cir. 2005) The Ninth Circuit Court of Appeals held that a reasonable juror could conclude that the supervisors conduct, which was directed primarily at women, was because of sex, within the meaning of the statute.The Ninth Circuit Court of Appeals held that a reasonable juror could conclude that the supervisors conduct, which was directed primarily at women, was because of sex, within the meaning of the statute. –The real question is whether the behavioraffected women more adversely than it affected men. –The questions can be analyzed in two ways: i) is the effect of the behavior qualitatively different; and ii) is the amount of the behavior quantitatively different.

46 Slide 46 The Reasonable Woman Standard: EEOC v. National Education Association (9th Cir. 2005) Under the reasonable woman standard devised in an earlier case, Ellison v. Brady, 924 f. 2d 872 (9th Cir. 1991), women found the behavior is more intimidating then men did and therefore, the conduct affects women differently.Under the reasonable woman standard devised in an earlier case, Ellison v. Brady, 924 f. 2d 872 (9th Cir. 1991), women found the behavior is more intimidating then men did and therefore, the conduct affects women differently. –The Directors intent is irrelevant- what matters is the effect of the behavior, both subjectively and objectively.

47 Slide 47 The Reasonable Woman Standard: EEOC v. National Education Association (9th Cir. 2005) According to the Court, the quantitative difference turns on whether women were more frequently exposed to the abusive behavior then men.According to the Court, the quantitative difference turns on whether women were more frequently exposed to the abusive behavior then men. –Note: Although the NEA pointed out that as a teachers union, most of its employees were women and women had more contact with the particular director, this argument did not prevail. –Other courts have ruled that an unbalanced distributing of the sexes and the fact that some men were harassed can defeat a showing of differential treatment.

48 Slide 48 The Reasonable Woman Standard: EEOC v. National Education Association (9th Cir. 2005) If the abusive behavior will be actually and reasonably perceived as disadvantageous by women, the behavior may be discrimination.If the abusive behavior will be actually and reasonably perceived as disadvantageous by women, the behavior may be discrimination.

49 Slide 49 Transgender v. Sexual Orientation Transgender employees are often discriminated against or harassed because the discriminating agent or harasser mistakenly perceives them to be gay or lesbian.Transgender employees are often discriminated against or harassed because the discriminating agent or harasser mistakenly perceives them to be gay or lesbian.

50 Slide 50 Discrimination and Harassment of Transgender Employees Examples of Discriminatory and Harassing Conduct Regarding Transgender EmployeesExamples of Discriminatory and Harassing Conduct Regarding Transgender Employees –Refusal to hire in a position requiring customer interaction; –Preventing appropriate restroom usage; –Repeated failure to address an employee by his/her proper name and pronoun (Mr./Ms., his/her); –Invasive inquiries about medical history or genitalia; –Allowing teasing or intimidating behavior.

51 Slide 51 Transgender v. Sexual Orientation: Enriquez v. West Jersey Health Systems (N.J. 2001) Enriquez, a MTF transsexual pediatric physician, sued for wrongful termination of her employment as a medical director of a learning behavioral center. She alleged disability and sexual orientation discrimination.Enriquez, a MTF transsexual pediatric physician, sued for wrongful termination of her employment as a medical director of a learning behavioral center. She alleged disability and sexual orientation discrimination.

52 Slide 52 Transgender v. Sexual Orientation: Enriquez v. West Jersey Health Systems (N.J. 2001) After working for the facility for less than one year, Enriquez began her external transformation from male to female.After working for the facility for less than one year, Enriquez began her external transformation from male to female. –Enriquez shaved her beard, sculpted and waxed her eyebrows, pierced her ears, and began growing breasts. A few months later, Enriquez began manicuring and polishing her nails, growing long hair and wearing a ponytail. Later that year, Enriquez was diagnosed with gender dysphoria, a gender identity disorder listed in the DSM-IV published by the American Psychiatric Association.Later that year, Enriquez was diagnosed with gender dysphoria, a gender identity disorder listed in the DSM-IV published by the American Psychiatric Association.

53 Slide 53 Transgender v. Sexual Orientation: Enriquez v. West Jersey Health Systems (N.J. 2001) One year later, Enriquez underwent surgery. Three executives confronted her about their discomfort over her transformation. One told her to stop all this and go back to your previous appearance!One year later, Enriquez underwent surgery. Three executives confronted her about their discomfort over her transformation. One told her to stop all this and go back to your previous appearance! The executives terminated her contract with the facility and refused to enter into a new contract with her, stating No one is going to sign this contract unless you stop this business that youre doing.The executives terminated her contract with the facility and refused to enter into a new contract with her, stating No one is going to sign this contract unless you stop this business that youre doing.

54 Slide 54 Transgender v. Sexual Orientation: Enriquez v. West Jersey Health Systems (N.J. 2001) Sexual Orientation Discrimination?Sexual Orientation Discrimination? –The court concluded Enriquez failed to establish a case of sexual orientation discrimination. There was no evidence of mistreatment by the employer because of Enriquez affectional, emotional or physical attraction to others.

55 Slide 55 Transgender v. Sexual Orientation: Enriquez v. West Jersey Health Systems (N.J. 2001) Gender Discrimination?Gender Discrimination? –Yes, even though the statute does not define gender specifically to include gender identity. The Court was influenced in its decision by the development of the concept of sex stereotyping as actionable gender discrimination.

56 Slide 56 Sexual Reassignment Surgery: Goins v. West Group (Minn. 2000) Must one undergo sexual reassignment surgery to be protected under the law?Must one undergo sexual reassignment surgery to be protected under the law? Goins, a transgender employee, claims West Group discriminated against her and harassed her on the basis of her sexual orientation by designating restrooms on the basis of biological gender.Goins, a transgender employee, claims West Group discriminated against her and harassed her on the basis of her sexual orientation by designating restrooms on the basis of biological gender.

57 Slide 57 Sexual Reassignment Surgery: Goins v. West Group (Minn. 2000) Goins was born biologically male. Since 1994, Goins has taken female hormones and presented herself to the public as a female since In October 1995, Goins legally changed her name. Goins referred to herself as transgender or trans-identified.Goins was born biologically male. Since 1994, Goins has taken female hormones and presented herself to the public as a female since In October 1995, Goins legally changed her name. Goins referred to herself as transgender or trans-identified.

58 Slide 58 Sexual Reassignment Surgery: Goins v. West Group (Minn. 2000) In 1997, Goins used an employee restroom designated for women. Two biological females complained to a supervisor.In 1997, Goins used an employee restroom designated for women. Two biological females complained to a supervisor. The HR Director deemed the two female employees complaint to be a complaint of a hostile work environment and decided to enforce the policy of restroom usage according to biological gender.The HR Director deemed the two female employees complaint to be a complaint of a hostile work environment and decided to enforce the policy of restroom usage according to biological gender.

59 Slide 59 Sexual Reassignment Surgery: Goins v. West Group (Minn. 2000) The HR Director also decided to allow Goins the use of a single- occupancy restroom on a different floor or one in another building.The HR Director also decided to allow Goins the use of a single- occupancy restroom on a different floor or one in another building. Goins objected, proposing instead the complaining employees be educated regarding transgender individuals. Goins continued to use the restroom.Goins objected, proposing instead the complaining employees be educated regarding transgender individuals. Goins continued to use the restroom. In 1998, Goins resigned, claiming undue stress and hostility.In 1998, Goins resigned, claiming undue stress and hostility.

60 Slide 60 Sexual Reassignment Surgery: Goins v. West Group (Minn. 2000) Wests designation of employee restroom usage based on biological gender is not sexual orientation discrimination. Restriction on employees usage and the fact co- workers stared at her with hostility and gossiped about her was not evidence of sexual orientation harassment.Wests designation of employee restroom usage based on biological gender is not sexual orientation discrimination. Restriction on employees usage and the fact co- workers stared at her with hostility and gossiped about her was not evidence of sexual orientation harassment.

61 Slide 61 Sexual Reassignment Surgery: Goins v. West Group (Minn. 2000) The court held that an employee born male who changed her legal name to that of a female and took female hormones to identify herself as a female, even though she elected not to undergo sexual reassignment surgery, was protected under that states anti-discrimination law protecting persons whose self-image or identity is not traditionally associated with his/her biological sex.The court held that an employee born male who changed her legal name to that of a female and took female hormones to identify herself as a female, even though she elected not to undergo sexual reassignment surgery, was protected under that states anti-discrimination law protecting persons whose self-image or identity is not traditionally associated with his/her biological sex.

62 Slide 62 Jespersen v. Harrahs Operating Co. (9th Cir. 2004) Harrahs implemented grooming requirements that, in addition to gender neutral standards, required female serversHarrahs implemented grooming requirements that, in addition to gender neutral standards, required female servers –to wear makeup and nail polish; –to tease, curl or style their hair; –to wear pantyhose. In contrast, male beverage servers were prohibited from wearing makeup or colored nail polish, and were required to maintain short hair and neat, trim fingernails.In contrast, male beverage servers were prohibited from wearing makeup or colored nail polish, and were required to maintain short hair and neat, trim fingernails.

63 Slide 63 Jespersen v. Harrahs Operating Co. (9th Cir. 2004) Jespersen, a bartender at Harrahs for almost twenty years, refused to comply with the new makeup requirement, explaining that makeup made her feel sick, degraded, exposed, and violated.Jespersen, a bartender at Harrahs for almost twenty years, refused to comply with the new makeup requirement, explaining that makeup made her feel sick, degraded, exposed, and violated. When she was unable to locate another position in the company that did not require wearing makeup, she was terminated.When she was unable to locate another position in the company that did not require wearing makeup, she was terminated. Jespersen alleged that her termination constituted illegal sex discrimination under Title VII.Jespersen alleged that her termination constituted illegal sex discrimination under Title VII.

64 Slide 64 Jespersen v. Harrahs Operating Co. (9th Cir. 2004) The court found that the different grooming standards for men and women did not constitute an unequal burden on females:The court found that the different grooming standards for men and women did not constitute an unequal burden on females: –Even if … the application of makeup requires some expenditure of time and money, Jespersen would still have the burden of producing some evidence that the burdens associated with the makeup requirement are greater than the burdens the... policy imposes on male bartenders, and exceeds whatever burden is associated with ordinary, good-grooming standards.

65 Slide 65 Jespersen v. Harrahs Operating Co. (9th Cir. 2004) Finding that Jespersen failed to meet this burden, the court granted summary judgment for the Employer.Finding that Jespersen failed to meet this burden, the court granted summary judgment for the Employer. Notably, the court declined to apply the Price Waterhouse sex stereotyping analysis to appearance and grooming standards cases.Notably, the court declined to apply the Price Waterhouse sex stereotyping analysis to appearance and grooming standards cases.

66 Slide 66 Questions? Susan Fahey DesmondSusan Fahey Desmond


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