The Emerging Law of LGBT Rights in the Workplace September 21, 2017

Eric N. Athey McNees Wallace & Nurick LLC [email protected] 717.581.3708

. Rights under EEO Laws and Orders . Hiring/Firing/Advancement . Harassment . FMLA and ADA Rights . Coverage Issues under Employee Benefit Plans . Access to bathrooms, lockers, etc. . How these issues impact employment policies

2 © 2016 McNees Wallace & Nurick LLC www.mwn.com Terminology and Spectrums . Sex at Birth: Female ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐Male . Gender Identity: Woman‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐Man . Cisgender: Gender identity matches sex at birth . Transgender: Gender identity is opposite sex at birth . Non‐Binary (Pangender): Identity is not exclusively male or female . Gender Expression: Feminine‐‐‐‐‐‐‐‐‐‐‐Masculine . Sexual Orientation*: Men‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐Women . *Heterosexual, Lesbian, Gay, Bisexual

3 © 2016 McNees Wallace & Nurick LLC www.mwn.com EEO Law and LGBT . Title VII prohibits discrimination on the basis of “sex” – there is no reference to “sexual orientation”, “gender identity” or “gender expression” . Pennsylvania Human Relations Act (PHRA) prohibits discrimination on the basis of “sex” – there is no reference to “sexual orientation”, “gender identity” or “gender expression” . Multiple legislative efforts to amend both laws to cover LGBT have failed

4 © 2016 McNees Wallace & Nurick LLC www.mwn.com The Supreme Court Defines “Sex” Under Title VII . Price Waterhouse v. Hopkins (S.Ct. 1989)(a female accountant may not be denied partner status due to failure to adhere to feminine sex stereotype; i.e. gender expression) . Oncale v. Sundowner Offshore Services (S.Ct. 1998)(male worker on oil rig could claim sex discrimination under Title VII based on same‐sex sexual harassment) . Sex Discrimination Includes: The employee is treated differently because of his/her sex –or non‐conformance with a gender stereotype 5 © 2016 McNees Wallace & Nurick LLC www.mwn.com Lower Courts Address LGBT Rights . Bibby v. Philadelphia Coca Cola Bottling, (3d Cir. 2001)(rejects sexual orientation Title VII claim) . Dobre v. National R.R. Passenger Corp. (3rd Cir. 1993)(individual undergoing gender transition was not discriminated against on basis of sex)….but…. . Mitchell v. Axcan Scandipharm, Inc. (W.D. Pa. 2006)(refusing to dismiss discrimination claim brought by individual undergoing gender transition)

. Complainant v. DHS (2014): EEOC indicates that discrimination on basis of sexual orientation may qualify as sex discrimination. . Macy v. Holder (2015): EEOC holds that the Supreme Court’s Hopkins decision prohibiting gender stereotyping extends to protect transgender individuals from discrimination. . EEOC 2013‐2016 Strategic Enforcement Plan: Assigns priority to protecting Title VII rights of LGBT.

. March 1, 2016: EEOC files two lawsuits alleging discrimination on basis of sexual orientation . EEOC v. Pallet Cos. (Maryland) settles for $202,000 . EEOC v. Scott Medical Health Center (Pennsylvania): Court refuses to dismiss, holding: “Discrimination on the basis of sexual orientation is, at its very core, sex stereotyping plain and simple.”

8 © 2016 McNees Wallace & Nurick LLC www.mwn.com EEOC LGBT Charge Data . 2016: 1768 LGBT‐related EEOC charges filed in U.S. (up from 808 in 2013) . 1649 resolved . 118 settlements . 1114 no reasonable cause findings . 61 reasonable cause findings . $4.4 monetary benefits (up from $900K in 2013)

. Hively v. Ivy Tech (7th Cir. 2017): First federal appeals court to hold sex discrimination includes sexual orientation (covers Illinois, Wisconsin, Indiana) . Multiple other federal appellate courts have held otherwise (most in older decisions) . “Split Among the Circuits” = Likely Supreme Court review

10 © 2016 McNees Wallace & Nurick LLC www.mwn.com Other Avenues for Expanded Protection . Federal Executive Orders: . Executive Order 13672 (Obama, 2014) prohibits federal contractors from discriminating (or permitting harassment) on the basis of sexual orientation and gender identity. . President Trump has stated that he will not rescind Executive Order 13672. . OFCCP Sex Discrimination Guidelines now define “sex” to include gender identity and sex stereotyping (gender expression/sexual orientation) o Gender Identity governs access to bathrooms, showers, locker rooms, etc. o Categorical exclusion of health coverage for gender transition is discriminatory 11 © 2016 McNees Wallace & Nurick LLC www.mwn.com Other Avenues for Expanded Protection

. State Executive Orders . PA was first state to protect public employees from discrimination on basis of sexual orientation (1975) . April 2016: By Executive Order, Governor Wolf expands E.O. to gender identity –and coverage expanded to include state contractors

12 © 2016 McNees Wallace & Nurick LLC www.mwn.com Other Avenues for Expanded Protection . State / Local Laws and Ordinances: . PHRA only prohibits discrimination on basis of sex . Multiple PA Municipalities have ordinances protecting sexual orientation and/or gender identity (Allentown, Easton, Erie, Harrisburg, Lancaster, Pittsburgh, Philadelphia, Scranton, York) . 20 States + Washington D.C. have state EEO laws that prohibit discrimination on basis of sexual orientation and gender identity . 2 States prohibit have EEO laws protecting sexual orientation (not gender identity)

. Neither federal or state law specifically list LGBT as a protected class; however, some courts have expanded the concept of “sex discrimination” to protect members of the LGBT community and explicit protections have been extended via Executive Orders, EEOC enforcement and state and local laws and ordinances.

14 © 2016 McNees Wallace & Nurick LLC www.mwn.com FMLA and LGBT . Q: Does FMLA entitle employees to leave to care for same‐sex spouses? A: Yes. See Obergefell v. Hodges (S.Ct. 2015) and DOL Final Rule updating FMLA issued 2/23/15. . Q: Does FMLA entitle employees to take leave for gender transition surgery/therapy? A: There is no answer from the courts yet. However, gender identity disorder is a psychological diagnosis identified in the DSM‐IV. If transition is recommended by a physician, refusal to offer FMLA is risky.

15 © 2016 McNees Wallace & Nurick LLC www.mwn.com ADA and LGBT . Sections 508 and 511 of ADA specifically exclude ‘transvestites’, ‘homosexuality’, ‘bisexuality’, ‘transsexualism’, and ‘gender identity disorders not resulting from physical impairments’ from the Act’s definition of “disability.” . Some disorders are clearly physical impairments . What about a claim of genetic impairment? . Will the doctor’s note govern? . Blatt v. Cabela’s Retail (E.D.Pa.2017)(court refuses to dismiss ADA claim brought by terminated employee with gender dysphoria) 16 © 2016 McNees Wallace & Nurick LLC www.mwn.com LGBT and Employee Benefits . Must employer health plans recognize same sex spouses for purposes of dependent coverage? . Obergefell + EEO Developments (above) . Fully‐insured Plans: Will your carrier assume the liability risks of exclusion? . Self‐insured: Will your company (or reinsurer) assume the risks of exclusion? . Same‐sex domestic partner benefits: On the wane? . Risk of reverse discrimination: Common law marriage rides again!?!?

17 © 2016 McNees Wallace & Nurick LLC www.mwn.com ACA Section 1557 . Prohibits any health program (including health plans) receiving federal financial assistance from discriminating on the basis of “sex” . HHS regulations interpret sex to include gender identity . DOL, IRS, HHS Guidance: . Covered plans cannot limit services based on individual’s sex assigned at birth . Some plans resist – TPAs seek indemnification . Franciscan Alliance v. Burwell (N.D.Tex. December 31, 2017)(enjoins Section 1557 provisions governing abortion or gender identity)

. OSHA “Best Practices” Guide (May 2015) – gender identity should govern rest room access . OFCCP Sex Discrimination Guidelines (June 2016) – federal contractors must allow employees to use facilities based on gender with which they identify . EEOC Fact Sheet (June 2016) – highlights EEO risks associated with failing to respect preferences of transgender employees . North Carolina Bathroom Bill (2016‐17), etc. – partially enjoined, partially repealed . Evancho v. Pine‐Richland Sch. Dist. (W.D.Pa.2017)(enjoining school board from limiting transgender students to single user restrooms and restrooms corresponding to their birth sex)

19 © 2016 McNees Wallace & Nurick LLC www.mwn.com The Challenges for HR . Emotional issues for many involved . 41% of transgender people attempt suicide (25 times more common than general population) . Religious objections . Macho culture issues . Some simply don’t understand . Vulnerable population . Employment law liability issues . Customer/Public accessibility concerns . Privacy Issues

20 © 2016 McNees Wallace & Nurick LLC www.mwn.com Compliance: Where to Begin? . Policies . EEO / Harassment Policy . Affirmative Action Plan . Health Plan . Access Policies . Point Person . Training . Updated Sensitivity / Diversity Training . Explain Policy Updates . Establish Common Understanding of Culture

21 © 2016 McNees Wallace & Nurick LLC www.mwn.com Gender Transition Plan? . Some employers actively work with the transgender employee on a joint “transition plan” –how the transition will be rolled out in the work place (e.g. name tag, change in benefit information) . Medical leave . Name change . Restroom issues . Complaints / Point of Contact . Resources: . www.shrm.org . http://www.hrc.org/resources/workplace‐gender‐ transition‐guidelines

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