EEOC Enforcement Actions and Trends

EEOC Enforcement Action Filing A Charge Potential Charging Party Contact with EEOC -- Walk-In -- Telephone -- Mail

EEOC Enforcement Action WHAT TO EXPECT FROM EEOC Request for Information and Position Statement Mediation Investigation On Site Investigation Fact Finding Conference Additional Request for Information Settlement Determination No Cause Mixed Cause Cause Conciliation Litigation

Request for Information & Position Statement Normally sent with Charge of Discrimination Request for Information – a questionnaire eliciting specific information regarding charging party’s allegations Position Statement – response to charging party’s allegations (your side of the story)

Take Advantage of EEOC’s Mediation Program It’s Free It’s Voluntary It’s Confidential It’s Informal Mediators are Neutrals Investigation is Suspended During Mediation

Make Your First Shot Your Best Shot Position Statement  Respond to the Allegations in the Charge  Focus on Facts  Be Accurate  Be Complete  Base Position Statement on Internal Investigation Submit Evidence in Support of the Position Statement Submit Witness Information Position Statement  Respond to the Allegations in the Charge  Focus on Facts  Be Accurate  Be Complete  Base Position Statement on Internal Investigation Submit Evidence in Support of the Position Statement Submit Witness Information

Investigation Assigned to Investigator Investigator must gather facts Investigator must assess credibility Investigator must determine whether others are affected Allow investigators to do their jobs Don’t ignore due dates Request extensions if necessary

On-Site Investigation EEOC has authority under all statutes Mutually agreed upon date at Respondent’s facility Interview Management Review Records Possible Tour of Facility/Work Area Interview witnesses

Fact Finding Conference Tool to resolve issues in dispute Held at EEOC office or other neutral location Conducted by Investigator Ground rules Not mediation, settlement possible Recommendation should be made at the end of the Fact Finding Conference

Additional Requests for Information Sometimes additional information needed at any point in the investigation Written or Verbal Request Honor due dates or seek extension, if necessary

Settlement Keep an open mind about settlement Adopt a realistic view of the case and logical reasons to consider a negotiated settlement Participate in settlement discussions If settled, Charging Party gives up Right to Sue and case is closed Settlement available at any time during the investigative process

Determination No Cause Charging Party gets right to Sue – 90 days to file a lawsuit Charge is closed Mixed Cause No cause for Charging Party but a violation has been identified Conciliation on Cause Cause A violation has been identified regarding Charging Party’s allegations Conciliation

Litigation If Conciliation attempts are unsuccessful Dept of Justice – State/Local Government Reviewed for litigation by EEOC If EEOC litigates, lawsuit filed If not, Charging Party issued Right to Sue

Be aware of EEOC’s Authority to Investigate and Seek Relief EEOC has authority to investigate EEOC has authority to subpoena evidence EEOC has authority to expand investigations EEOC has authority to seek relief even where the Charging Party has agreed to arbitrate EEOC has authority to litigate

EEOC & Enforcement Protections for LGBT Applicants & Workers Title VII of the Civil Rights Act of 1964, as amended does not explicitly include sexual orientation or gender identity in its list of protected bases. The Commission considers coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions consistent with case law.

Transgender/Gender Identity Sexual Orientation Gender refers to cultural aspects of masculinity or femininity. Gender Identity – The inner sense of one’s own gender, generally as male or female. Transgender – Choice to modify one’s gender expression and/or physical characteristics to match one’s identity. Sexual Orientation – A person’s attraction to another person.

The Commission’s position on sex discrimination against LGBT individuals is consistent with long- established legal precedent. The Supreme Court recognized decades ago that Title VII’s “because of sex” provision strikes at the “entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (quoting City of Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978) (internal citation omitted)). Recap: Supreme Court Expansively Interprets Sex Discrimination Under Title VII 17

Applying Price Waterhouse, courts have increasingly recognized that when an employment action is taken against an LGBT applicant or employee because of non-conformance to traditional gender stereotypes, it is actionable as sex discrimination under Title VII.  Applying Title VII to LGBT individuals does not create new protected groups under the law, but rather simply recognizes the scope of the existing protected characteristic of “sex.”  Gender-stereotyping claims may be presented regardless of the sex, gender identity, or sexual orientation of the applicant or employee. Recap: Court Decisions on Sex Discrimination Against LGBT Individuals 18

Commission policy in federal and private sector cases is that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex in violation of Title VII. Macy v. Dep’t. of Justice, EEOC Appeal No , 2012 WL (April 20, 2012). EEOC amicus brief approved for filing in Pacheco v. Freedom Buick GMC Truck, No (W.D. Tex. Oct. 17, 2011), Dkt. No. 30, at page 1, 2011 WL Rapid City Market (Minneapolis Area Office – EEOC conciliation agreement with press release dated Sept. 16, 2013, announcing resolution of claim that supermarket in South Dakota fired employee based on her transgender status in violation of Title VII). Employer agreed to payment of $50,000, to obtain professional anti-discrimination training annually for all of its employees, to implement and distribute an anti-discrimination policy to all employees, to report all future complaints of discrimination to the EEOC, and other relief. 1. Disparate Treatment or Harassment Based on Transgender Status 19

Glenn v. Brumby, 663 F.3d 1312, (11th Cir. 2011) (“A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes”; “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination”). Smith v. City of Salem, 378 F.3d 566, 575 (6th Cir. 2004) (Title VII’s prohibition against sex discrimination includes “discrimination against a plaintiff who is a transsexual – and therefore fails to act and/or identify with his or her gender”). Rosa v. Parks W. Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000) (citing Title VII case law, the court concluded that a transgender plaintiff, who was biologically male, stated a claim of sex discrimination under the Equal Credit Opportunity Act by alleging that he was denied a loan application because he was dressed in traditionally female attire). Schwenck v. Hartford, 204 F.3d 1187, (9th Cir. 2000) (citing Title VII case law, the court concluded that a transgender woman stated a claim of sex discrimination under the Gender Motivated Violence Act based on the perception that she was a “man who ‘failed to act like one’”). Schroer v. Billington, 577 F. Supp. 2d 293, 308 (D.D.C. 2008) (defendant’s refusal to hire the plaintiff “after being advised that she planned to change her anatomical sex by undergoing sexreassignment surgery was literally discrimination ‘because of... sex’”). Examples of Court Decisions: Discrimination Because Individual is Transgender is Sex Discrimination 20

Analyzed the same way regardless of the sexual orientation of the charging party or harasser. As with opposite-sex harassment, it is irrelevant whether harasser’s motive was to abuse and demean or to make a sexual advance. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 82 (1998) (same-sex sexual harassment is actionable under Title VII). 2. Same-Sex Sexual Harassment Cases 21

Discrimination or harassment that is motivated by a male applicant or employee being considered too effeminate or a female too masculine. Comments or actions motivated by employee’s perceived non- conformance to masculinity or femininity gender stereotypes with respect to dress, speech, mannerisms, or other behavior. Analyzed the same regardless of the sexual orientation of the individual. 3. Typical Price Waterhouse Sex-Stereotyping Cases 22

E.g., harassment or discrimination takes the form of anti-gay comments or actions, but is motivated by a perception that the applicant or employee is too effeminate or too masculine Analyzed the same regardless of CP’s sexual orientation. Examples: EEOC v. Boh Brothers Construction Co., 731 F.3d 444 (5th Cir. 2013) (jury verdict finding sex discrimination in violation of Title VII upheld; much of the harassment took the form of anti-gay epithets and other abuse, but evidence proved it was motivated by sex stereotypes, i.e., by the harassers’ view that CP was insufficiently masculine). Rosa v. Dep’t of Veterans Affairs, EEOC Appeal No , 2009 WL (EEOC Aug. 3, 2009) (harassment against a male employee including repeated innuendos about his sexuality and verbal mocking using “very feminine voice” can constitute discrimination based on sex). Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (9th Cir. 2001) (plaintiff was subjected to a relentless campaign of verbal harassment; male co-workers and a supervisor repeatedly referred to him as “she” and “her,” male co-workers mocked him for walking and carrying his serving tray “like a woman,” and called him a “faggot” and a “female whore”). 4. Cases Facially About Sexual Orientation But Actions Were Motivated By Price Waterhouse Gender Stereotypes 23

What about fact patterns where the individual is not perceived to have been too masculine or too feminine in terms of sex stereotypes about dress, mannerisms, or related behavior, but rather where it is only actual or perceived sexual orientation that motivated the disparate treatment or harassment? 5. Other LGBT Cases – Sex Discrimination? 24

Discrimination or harassment based on a same-sex marriage, partnership, or other same-sex relationship discrimination based on sex stereotype that men should only marry women can constitute discrimination based on sex); discrimination based on sex stereotype that women should only have sexual relationships with men can constitute discrimination based on sex). Discrimination or harassment based on actual or perceived sexual orientation, where there is no evidence that the individual was otherwise viewed as non- conforming to sex-stereotypes about masculinity or femininity, such as in dress, mannerisms, or other behaviors Discrimination in terms, conditions, or privileges of employment, e.g., employer offers spousal insurance benefit for employees in opposite-sex legal marriages but not those in same-sex legal marriages. Examples 25

Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3d Cir. 2009) (discrimination against an individual for failure to conform to gender stereotypes violates Title VII even if the discrimination was also motivated by the individual’s actual or perceived sexual orientation). Centola v. Potter, 183 F. Supp. 2d 403, 410 (D. Mass. 2002) (“Sexual orientation harassment is often, if not always, motivated by a desire to enforce heterosexually defined gender norms. In fact, stereotypes about homosexuality are directly related to our stereotype about the proper roles of men and women.”) Koren v. Ohio Bell Telephone Co., 2012 WL (N.D. Ohio Aug. 14, 2012) (denying defendant’s motion for summary judgment where plaintiff alleged his supervisor discriminated against him based on sex stereotypes because he is married to a man and took his husband’s last name; the court held: “That is a claim of discrimination because of sex”). Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1224 (D. Or. 2002) (recognizing that the belief that men or women should only be attracted to persons of the opposite sex constitutes a gender stereotype). Examples of Court Decisions: Discrimination Against Lesbian, Gay, and Bisexual Individuals as Sex-Stereotyping Discrimination 26

Sexual Orientation is Sex-Based Discrimination EEOC concluded in a federal sector case decision on July 15, 2015, that sexual orientation is inherently a “sex-based consideration”, and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.

Possible Scenarios Denial of same-sex spouse benefits. Different treatment of an employee because they are in a same-sex marriage. Different treatment based on a personal association with someone of a particular sex. Different treatment of a heterosexual employee by a gay supervisor because that employee is heterosexual.

EEOC’s Web Page Contact Information: Shirley A. Richardson Deputy District Director Memphis District Office 901/