Federal Law Overview

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OUT OF THE CLOSET AND INTO YOUR WORKPLACE: SEXUAL ORIENTATION AND GENDER IDENTITY presented by Michael S. Cohen, Esq. ([email protected] ; 215-979-1882; Twitter: @Cohen_HR_Law) Marc J. Scheiner, Esq. ([email protected] ; 215-979-1877) *Participation in this seminar does not establish an attorney-client relationship between Duane Morris LLP (or the Duane Morris Institute) and any participant (or his or her employer.) Further, no statements made in this seminar or in the materials should be construed as legal advice pertaining to specific factual situations.

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Definitions

• Just so we’re all on the same page. . . . – Sexual orientation – Gender Identity – Gender Expression – Transgender

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FEDERAL LAW OVERVIEW

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• Title VII of the Civil Right Act of 1964 – Coverage (http://www.eeoc.gov/laws/statutes/titlevii.cfm) Sex, race, religion, color, national origin Not sexual orientation Not gender identity – Expansion by courts Some protection based on gender stereotyping and gender non-conformity Some protection for transgender employees based on Title VII or the ADA

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Federal Law

• Family and Medical Leave Act – Provides 12 weeks unpaid, job-protected leave for: – Birth and care of newborn child of employee – Placement with employee of child for adoption/ foster care – Serious health condition of employee – Serious health condition of immediate family member (spouse, child or parent) – “Qualifying exigency” due to immediate family member on active duty or notified of an impending call to active duty – 26 weeks due to immediate family member who is a covered service member and undergoing treatment for serious illness or injury ***DOMA (U.S. v. Windsor, S. Ct. 2013) 4 www.duanemorris.com

STATE LAWS REGARDING SEXUAL ORIENTATION AND GENDER IDENTITY

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• Sexual Orientation – 21 States + D.C. prohibit discrimination in private and public employment: California, Colorado, Connecticut, D.C., Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington and Wisconsin

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State Laws

• 12 additional states prohibit discrimination in public employment: – Arizona, Delaware, Indiana, Kansas, Kentucky, Massachusetts, Michigan, Missouri, Montana, New York, Pennsylvania, Ohio

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State Laws

• Gender Identity – 16 states + D.C. prohibit discrimination in private and public employment: California, Colorado, Connecticut, D.C., Hawaii, Illinois, Iowa, Maine, Massachusetts, Minnesota, New Jersey, New Mexico, Nevada, Rhode Island, Oregon, Vermont, Washington

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• In addition, 9 states have court, agency rulings or executive orders providing some protection: Delaware, Indiana, Kansas, Kentucky, Massachusetts, Michigan, New York, Ohio, Pennsylvania

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Local Laws

• Pennsylvania – Pennsylvania Human Relations Act – Philadelphia Fair Practices Ordinance – Other Local Ordinances Allegheny County, Allentown, Easton, Erie County, Harrisburg, Lancaster, Lansdowne, New Hope, Philadelphia, Pittsburg, Scranton, State College, Swarthmore, West Chester, York, Reading, Bethlehem, Lower Merion, Doylestown, Haverford, Conshohocken, Springfield, Newtown, Whitemarsh, Jenkintown, Susquehanna **In the 29 states without non-discrimination laws on the basis of sexual orientation and/or gender identity, there are over 170 local municipalities that provide such protections**

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Hypothetical

Michelle is the founder and CEO of her Pennsylvania-based Company. One of Michelle’s direct reports, Willard, has been an outstanding employee since the time he began working for the Company 8 years ago. Willard has been promoted several times and he currently holds the position of Vice President of Operations, a job he performs extraordinarily well. In fact, Willard’s last performance appraisal, which he received from Michelle two months ago, demonstrated Willard’s outstanding performance. Willard’s employees love him and think he is a great manager. During an executive retreat, Willard discloses to Michelle that he is gay and that he no longer could keep it a secret from his boss. Michelle, a person with very devout religious beliefs regarding homosexuality, terminates Willard on the spot. Prior to his termination, Willard had never been subjected to any kind of differential treatment because of his sexual orientation.

Legal? What are the risks for the Company?

11 www.duanemorris.com THE EMPLOYER’S PERSPECTIVE: SEXUAL ORIENTATION AND GENDER IDENTITY DISCRIMINATION

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Hypothetical

Tom, one or your recruiters, is interviewing Billy for a vacant sales position. Billy has no prior sales experience and does not meet the minimum qualifications for the position. The only reason he is being interviewed at all is because Billy is a friend of the Company’s CFO. During the interview, Tom notices that Billy lives near him and they appear to be approximately the same age. Tom asks Billy, “So, where do you usually go out during the weekend.” Billy tells Tom that he usually hangs out at Rinc’s, which is known to be a predominately gay bar. Tom writes down on his notes that Billy is gay. Ultimately, Billy is not hired and brings a failure to hire lawsuit against the Company based on sexual orientation discrimination.

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Interviewing and Hiring

• Impermissible questions and traps – Sexual orientation – Gender identity – Marital status – Parental status

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• Be ready to respond to common questions? – Company policies (family leave)? – Comfortable environment for LGBT employees? – How many LGBT employees? – Percentage?

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Interviewing and Hiring

• Danger zones in decision making process – Personal comfort level – Bad cultural fit – Perceived customer disapproval/preference

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Harassment/Discrimination Issues

• Kinds of harassment/discrimination – Overt Derogatory/hateful words Differential treatment Inappropriate sexual conversations – Less Obvious Stereotyping – no ill intent

17 www.duanemorris.com Hypothetical

Your Company has just issued a new Equal Employment Opportunity Policy in which it has added express prohibitions on treating employees differently or engaging in inappropriate behavior towards them on the basis on their sexual orientation or gender identity. As part of the Policy, an Acknowledgement for which each employee is expected to sign, the Policy reads, “Each employee is charged with the responsibility to fully recognize, respect and value the differences among all of us.” Due to her religious beliefs, Laura refuses to sign the Acknowledgement.

How do you handle the situation?

Do you discipline Laura?

What if she continues to refuse to sign the Acknowledgement?

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Harassment/Discrimination Issues

• Preventive Measures: – EEO Policy with Complaint Procedure – Training Overall EEO/Harassment Prevention Training Include examples relating to sexual orientation/ gender identity Include stereotyping Managers and/or non-managers – Discipline

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Employee Handbook/Policies

• Equal Employment Opportunity/Anti-Harassment Policy – Consider listing sexual orientation/gender identity even if not required by state or local law – Provide examples – In relevant states, include same-sex marriage, civil union or domestic partnership status

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• Employment of Relatives – Consider including “domestic partner” and/or “civil union partner” as relative • Bereavement Leave – Include domestic partner, civil union partner and/or same-sex spouse • Benefits – If going to provide domestic partner benefits, make sure plans/policies are amended

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Employee Handbook/Policies

• FMLA/Leave of Absence (http://www.dol.gov/whd/fmla/) – DOMA – Include spouse/domestic partner/civil union partner to list of people whose illness for whom employee can take FMLA or Leave of Absence (note risk in inclusion for FMLA) – Include spouse/domestic partner/civil union partner to other portions of Leave of Absence policy that provides leave for care of family members – Run concurrently

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Employee Handbook/Policies

• Dress Code – Gender-neutral – Apply consistently

23 www.duanemorris.com Hypothetical

Renee, formerly Roger, is a pre-operative transsexual who has at all times in the past presented at work as a male. Renee is undergoing therapy in preparation for her upcoming gender reassignment surgery. One of the steps she must take is to present as a woman all the time, including at work. When she meets with the Human Resources Director to discuss the changes that will have to be made, one issue that arises is what restroom Renee will use. How should the HR Director handle the situation? Would it be different if it were post-operation?

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Employee Handbook/Policies

• Transgender employee policies: – The “bathroom issue” Access according to workplace gender presentation Unisex restroom Other solution developed with employee – Transitioning

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Employer Statistics

• Non-Discrimination Policies – As of 2013: Approximately 88% of Fortune 500 companies include sexual orientation in their non-discrimination policies Approximately 57% of Fortune 500 companies include gender identity and/or expression (less than 10 years ago, this was about 3%) Approximately 62% of Fortune 500 companies provide domestic partnership benefits

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1. Michael S. Cohen concentrates his practice in the areas of employment law training and counseling. Mr. Cohen has trained and counseled employers throughout the country on subjects including harassment prevention; workplace diversity; discipline and discharge; hiring and recruiting practices; performance evaluations; FMLA, ADA and FLSA compliance; leave of absence policies; performance management; workplace privacy; sexual orientation and gender identity in the workplace; substance abuse testing; workplace violence; records retention; conducting background checks; teens in the workplace and managing attendance problems. He has conducted trainings for executives, directors, managers, supervisors and employees in many industries, including financial services, healthcare, pharmaceutical, manufacturing, retail, real estate development, law firms and human services. Mr. Cohen also has conducted trainings for executives, deans and faculty in several institutions of higher education and secondary education. He has conducted more than 150 trainings in the last year. 2. Mr. Cohen has conducted investigations into claims of harassment and discrimination and has drafted employee handbooks, employment agreements, noncompete agreements and post-termination agreements. He has represented clients throughout the country in EEO and other administrative proceedings. 3. Mr. Cohen has been cited as a national authority on employment issues by The New York Times, The Associated Press, USA Today, MSNBC.com, The New York Daily News, New York Newsday, The San Francisco Chronicle, Law National, Law.com, HR Magazine, HR Executive Magazine, HR Executive Online, SHRM On-Line, Employment Law 360, Inside Counsel Magazine, What's Working in Human Resources, Workforce Management Magazine, Human Rights Campaign On-Line, Yahoo! Sports, The Sporting News, The Newark Star-Ledger, The Houston Chronicle, The New Orleans Times-Picayune, The Pittsburgh Tribune-Review, The Syracuse Post-Standard, The Ann Arbor News, The Harrisburg Patriot News, The Mobile Press Register, The Flint Journal, The Desert Sun, The Courier-Post, The Honolulu Advertiser, The Stamford Advocate, The Huntsville Times, AM New York, The Workplace Substance Abuse Advisor, Legal Issues in Collegiate Athletics, Talent Management, BusinessInsurance.com, AZcentral.com, Fort Worth Star Telegram, Honolulu Star-Bulletin, The Columbus Dispatch, The Myrtle Beach Sun News, Richmond Times Dispatch, Detroit News and Business & Legal Reports, Inc. He has been a regular guest lecturer on human resources issues at Temple University and West Chester University for its Masters of Science in Administration program. 4. Mr. Cohen is a 1997 magna cum laude graduate of Temple University Beasley School of Law and a cum laude graduate of the University of Pennsylvania. Michael S. Cohen 5. Areas of Practice - Employment Law Partner 6. Professional Activities - Pennsylvania Bar Association; Philadelphia Bar Association 7. Admissions - Pennsylvania; New Jersey 8. Education Duane Morris LLP a. Temple University Beasley School of Law, J.D., magna cum laude, 1997 30 South 17th Street b. University of Pennsylvania, B.A., cum laude, 1993 9. Selected Speaking Engagements Philadelphia, PA 19103-4196 a. Speaker, “What´s Your Site – Social Media in Hiring” and “Documenting Performance – Yes It Does Matter,” SHRM Talent Management USA Conference, May 16-17, 2012, Las Vegas, Nevada b.Speaker, “Out of the Closet and Into Your Workplace – Sexual Orientation and Gender Identity” and “Background Checks – The Law Has Changed,” Lehigh Valley SHRM Annual Conference, October 5-6, 2012, Bethlehem, Pennsylvania Phone: 215.979.1882 c. Speaker, “Time to Go Back to School – Updating Your Employee Handbook” and “The ABCs of the FMLA and ADA.” Association of Legal Administrators National Conference, May 24-25, 2011, Orlando, Florida (#1 Rated Speaker at Conference) Fax: 215.405.2592 d. Speaker, “Get Ready to Hire Again” and “Diversity and the Law,” Association of Legal Administrators National Conference, May 4-5, 2012, Boston, Email: Massachusetts (#1 Rated Speaker at Conference) e. Speaker, “Hiring and Interviewing” and “It's Not Just a Game: Examining Employment Law Subjects Through the World of Sports,” SHRM National [email protected] Staffing Conference, Las Vegas, Nevada, April 29-30, 2009 f. Speaker, “Complying with Major Discrimination Laws and Union Awareness,” Pennsylvania Chamber of Commerce, Valley Forge, Pennsylvania, April 21, 2009 g. Speaker, “Sexual Orientation and Gender Identity Issues In The Workplace,” SHRM National Employment Law and Legislative Conference, Washington D.C., March 9, 2009

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1. Marc J. Scheiner practices in the area of employment law, counseling clients on a variety of employment issues. He represents clients in employment litigation matters and trains human resources professionals, in-house counsel and supervisors on a range of workplace topics. Mr. Scheiner works with clients to ensure compliance with Title VII, the Americans with Disabilities Act and ADAAA, Family and Medical Leave Act, Age Discrimination in Employment Act, Equal Pay Act, Fair Credit Reporting Act and various state and local laws. He also assists clients in reviewing and drafting employment policies, handbooks, employment agreements, noncompete agreements and severance agreements. 2. Mr. Scheiner has represented clients in federal and state courts as well as before federal, state and local administrative agencies in matters involving charges and complaints of age, sex, race, national origin, sexual orientation, pregnancy and religious-based discrimination and harassment; retaliation; background checks; drug testing; and unemployment insurance issues. 3. Mr. Scheiner has volunteered or worked on pro bono matters for Canine Partners for Life, the Human Rights Campaign, Big Brothers Big Sisters of America and the Mazzoni Center. He has also represented indigent clients in Social Security disability appeals before the U.S. Social Security Administration and in hearings before the U.S. Department of Labor. Mr. Scheiner is also active as a mentor and advisor through his service on the board of directors of the Alumni Corporation of the University of Rochester chapter of Sigma Phi Epsilon. 4. Mr. Scheiner has been cited by The New York Times, The National Law Journal, Employment Law360 and the Philadelphia Business Journal on employment topics. 5. Mr. Scheiner is a 2003 graduate of Cornell Law School, where he was note editor of the Cornell Journal of Law and Public Policy, a Legal Methods Honors Fellow and a magna cum laude graduate of the University of Rochester. Marc J. Scheiner 6. Areas of Practice - Employment Law Associate 7. Admissions - Pennsylvania; New Jersey 8. Education a. Cornell Law School, J.D., 2003 Duane Morris LLP b. University of Rochester, B.A., magna cum laude , 2000 30 South 17th Street 9. Selected Speaking Engagements a. Speaker, "Drafting Employee Handbooks and Avoiding the Most Common Handbook Mistakes," Pennsylvania Chamber of Philadelphia, PA 19103-4196 Business and Industry's HR Roundtable, King of Prussia, PA, April 26, 2012 USA b. Presenter, "Sexual Orientation and Gender Identity Workplace Issues," 2008 and 2009 Legislative Conference for the Society of Human Resources Management Phone: 215.979.1877 Fax: 215.405.2697 Email: [email protected]