As I discussed in a blog last month, the Trump Administration rescinded joint Department of Justice (DOJ) and Department of Education (DOE) guidance (a “Dear Colleague” letter) that had been issued under the Obama Administration on how the agencies interpret Title IX (the non-discrimination law that applies to schools and students) in the context of bathroom use by transgender students. The guidance had stated that transgender students should be allowed to use the gender-specific bathroom consistent with their stated gender identity. The rescission of this guidance occurred just weeks before the Supreme Court of the United States was scheduled to hear oral arguments in the Gloucester County School Board v. G.G. (Gavin Grimm) case this month. Continue Reading Supreme Court Kicks Transgender Case Back – What Does This Mean for Employers?
Yesterday, February 22, 2017, the Trump Administration rescinded Department of Justice (DOJ) and Department of Education (DOE) guidance that had been issued to schools on May 13, 2016 in the form of a “Dear Colleague” letter. The letter stated that it was the DOJ’s and DOE’s interpretation of Title IX (the federal law prohibiting sex discrimination in education) that schools must allow transgender students to use the gender-specific bathroom with which they identify and that schools could not force students to use bathrooms based on their biological sex. The DOJ and DOE stated that schools that did not follow the guidance could risk losing federal funding. Continue Reading Trump Administration Rescinds Transgender Student Guidance – What Does This Mean for Employers?
Last week, a federal district court in Nevada extended Title VII protections to a transgender employee with respect to bathroom usage by holding that discrimination “because of sex” under Title VII includes discrimination based on a person’s gender.
The Plaintiff (Roberts) is a transgender police officer with the Clark County School District (the Department) who identifies as a male officer. In 2011, Roberts began dressing for work like a man, grooming like a man, and identifying himself as a man. He also started using the men’s bathroom at work. Co-workers in turn complained that a woman was using the men’s bathroom. A meeting was called with Roberts, and his supervisors told him that he could not use the men’s restrooms and that he should only use the gender-neutral restrooms to “avoid any future complaints.” When Roberts complained about the bathroom ban, he was informed that he would not be allowed to use the men’s restroom until he could provide official documentation of a name and sex change. Continue Reading Nevada Federal Court Finds that Prohibitions on Transgender Employee’s Bathroom Usage is Discrimination Because of Sex under Title VII
On Tuesday (June 14, 2016) of this week, the White House Council on Women and Girls together with the Department of State, Department of Labor, the Aspen Institute, and Civic Nation held the Summit on the United State of Women. On that same day, the Office of Federal Contract Compliance Programs (OFCCP) announced a Final Rule updating the OFCCP’s sex discrimination guidelines. According to the OFCCP’s Fact Sheet, the revisions were to bring the guidelines, which are from what the OFCCP called the “Mad Men” era (1970’s), up to date.
The OFCCP published a Notice of Proposed Rulemaking on January 30, 2015 and received 553 comments on the proposed rule. The Final Rule will take effect on August 15, 2016. Continue Reading OFCCP Issues Final Rule Updating Sex Discrimination Guidelines
This week, the EEOC issued a Fact Sheet regarding Bathroom Access Rights for Transgender Employees under Title VII of the Civil Rights Act of 1964, which the EEOC has stated prohibits discrimination on the basis of gender identity. Title VII applies to all federal, state, and local government agencies in their capacity as employers, and to all private employers with 15 or more employees.
In siding with other federal government agencies that have released similar guidance (OSHA, the Office of Personnel Management, and the Department of Education), the EEOC stated that an employer should allow an employee to use the bathroom that corresponds with the employee’s gender identity. Continue Reading The EEOC’s Fact Sheet on Transgender Access to Bathrooms
The Maryland 2016 legislative session ended on Monday. A friend of mine mentioned that she heard the General Assembly passed an equal pay law in Maryland. But guess what? There is already an Equal Pay for Equal Work law in Maryland – it’s been in place for almost 25 years!! The current law already prohibits employers from discriminating against employees of one sex who work in the “same establishment” and perform work of comparable character or work in the same operation, in the same business, or of the same type by paying a lesser wage than an employee of another sex.
The equal pay bill mentioned, House Bill 1003, expands the prohibitions on discriminatory pay practices. It also adds an entirely new pay transparency provision. Specifically: Continue Reading “New” Equal Pay Bill for Maryland
Equal pay has become a hot topic on both the state and federal levels. As a woman who is a management-side employment attorney, I sometimes find myself puzzled as to how this topic came to be such a hot button issue, especially since there are already many laws on the books that address equal pay.
On the federal level, we have the Equal Pay Act, Title VII, and the Lily Ledbetter Fair Pay Act, which are enforced by the Equal Employment Opportunity Commission (EEOC). For federal contractors, there are Executive Orders 11246 (affirmative action for women and minorities), 13665 (pay transparency), 13673 (fair pay and safe workplaces), and a Presidential Memorandum on equal pay, all of which are enforced by the Office of Contract Compliance Programs. In Maryland, we have the Maryland Civil Rights Act (the equivalent of Title VII) and the Equal Pay for Equal Work Act. All of these are designed to address and enforce equal pay, regardless of sex or other protected characteristics.
However, just last month, on the 7th anniversary of the signing of his very first law while in office (the Lily Ledbetter Fair Pay Act), President Obama announced that the EEOC was issuing a new rule that would change the EEO-1 reporting requirements for employers with 100 or more employees and for government contractors with more than 50 employees and more than $50,000 in federal contracts or subcontracts. Under the proposed rule, these employers would need to report aggregated data on pay and hours worked by pay bands. A summary of the proposed rule can be found here.
Here in Maryland, there are currently a number of bills pending in the Maryland General Assembly that either amend the Equal Pay for Equal Work Act (to the detriment of employers by either instituting treble damages or other fines and penalties) or create an entirely new Equal Pay Commission, both of which seek to impose more reporting requirements on employers.
While I understand and support the underlying principles of the proposed legislation and regulations, issues arise in instituting these reporting obligations on employers. In addition to the effort and time required for collecting and reporting the data, such reported data does not fully capture the non-discriminatory differences between two individuals. A true assessment of equivalent jobs and the people in those jobs requires a thoughtful and detailed analysis of a multitude factors, including – but certainly not limited to – the following:
- Job knowledge;
- Industry knowledge;
- Certifications or licenses;
- Prior experience;
- Level of education;
- Negotiation of starting salary;
- Salary at prior jobs;
- The choices individuals make with respect to child rearing or other responsibilities (e.g. choosing to work part time, or not to work overtime, or flexible careers with less earning potential);
- Market competitiveness;
- Geographic location.
This nuanced and individual-specific analysis isn’t readily apparent from cold, limited data. I am apprehensive that mandatory reporting will only create more issues for employers when any of these established or potential enforcement agencies come knocking on employers’ doors seeking explanations for what appears to be facially discriminatory – but is not, in fact.
Aside from the significant effort and resulting headaches associated with compiling and reporting the data, another major concern stems from what will happen with this data after it is submitted. The EEOC says that it will use the data to assess complaints of discrimination, focus agency investigations, and identify pay disparities, as well as encourage companies to engage in self-assessment and correction. But questions still remain as to what the EEOC’s evaluation of this data will truly look like. Will it take into account differences in geographic locations, such as cities versus rural areas? Northeast v. Midwest? What about industry distinctions, or non-profit v. for profit institutions? Company size?
And frankly, the data being sought is very similar to what was required by the Equal Opportunity Survey, which was used by the OFCCP from 2000-2005 to collect personnel data, including compensation information, from federal contractors. The EO Survey was abandoned in 2006, after an independent consulting group found that it was ineffective in identifying systemic discrimination!
I am also concerned about the security of this data. We all know that the government isn’t immune from being hacked, so how will the data be submitted in a secure fashion? What will be the fate of this data after it is submitted? Will competitors learn of your wage rates and then attempt to lure away your best employees with an offer of higher pay?
It’s not that I am against equal pay. Indeed, as a woman, that would be just plain ridiculous (of course I want to be paid the same as my equally situated counterparts!). Similarly, I support equal pay for minorities. The point I’m making as a management-side employment attorney is that there are already laws and agencies in place to address equal pay issues. Enacting more laws (with more obligations on employers) and creating even more governmental agencies tasked with investigating discrimination in pay (to no actual effect!), when there are already agencies that do that, is redundant and unnecessarily burdensome on employers.
Contractors are still reeling from the many executive orders coming from President Obama in the last year or so, including raising the minimum wage for federal contract employees to $10.10, requiring contractors to disclose labor law violations, demanding pay transparency and the reporting of compensation, prohibiting discrimination on the basis of sexual orientation or gender identity, and more. Now, the New York Times has reported that President Obama has drafted an executive order to force federal contractors and subcontractors to issue paid leave to employees who are sick, are seeking medical attention, or need to care for a sick relative. The online article, which appeared in print today, can be found here. This proposed paid sick leave order is another action that will have a dramatic and costly impact on contractors.
The draft executive order is exceptionally broad in coverage. According to the New York Times, the draft executive order sets a minimum of 56 hours a year of paid sick leave (7 days). The leave would cover not only the employee’s illness, but also caring for a child, parent, spouse, domestic partner, or “any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.” It would also apply to absences from work resulting from domestic violence, sexual assault or stalking, if that time was used to seek medical attention, obtain counseling, seek relocation assistance from victim services organizations or prepare civil or criminal proceedings. In addition, unused paid leave will accrue, year after year.
At this point, no actual date for the issuance of the Executive Order has been announced, and the draft order itself apparently has been marked “deliberative and pre-decisional.” The New York Times reports, however, that the Labor Department was to have approved the Order and sent it to the White House as of 2 p.m. on Wednesday, August 5, thereby indicating some urgency to the matter.
We will keep you posted on any further developments.
Recently, The Century Foundation, a group that pursues “non-partisan research and policy analysis” released a report on virtual labor organizing. The report assesses how a mobile application (“app”) or website could provide a platform that would help workers organize for labor campaigns.
According to the report, approximately 96 percent of workers use Internet, e-mail, or mobile devices to connect to work, and approximately 81 percent spend at least one hour on e-mail during the workday. The Foundation further reports that the group of workers that would likely be most interested in labor organizing through social media and digital platforms are younger workers, including millennials, who, according to the report, are more receptive to unionization.
The report lays out aspects of what such an app would need to contain, including providing a common digital forum for employees to communicate about the workplace, coordinate local and regional organizing campaigns, and connect with experienced organizers and labor lawyers.
The National Labor Relations Board “quickie election” rules, in combination with union organizing apps, may increase what has already been a drastic uptick in petitions filed with the NLRB. An organizing app can assist unions in connecting to voters more efficiently and discreetly, making it more difficult for employers to learn of organizing activity in their workplace. Supervisors or management might now find a union flyer in the company parking lot, but soon, those flyers may be replaced with apps that are accessible only through cell phones of the individual employees.
One way to counteract the new wave of technology-driven union organizing is to properly train managers and front-line supervisors to take notice of and address changes in the workplace, including changes in employee personality and morale. This is crucial because an employee who feels as though she is not being heard by her supervisor may soon be able to download an app that provides a way for her to discuss her concerns regarding her workplace, and potentially find other employees who feel similarly.
If and when such an app is developed and implemented properly, it may drastically change the way that unions run organizing campaigns. Employers must be proactive and maintain constant communication between front-line supervisors and rank and file employees to ensure that employees’ concerns are being addressed.
Transgender rights have been receiving a considerable amount of media attention this week, most of which has been sparked by the magazine Vanity Fair featuring a cover story about “Keeping up with the Kardashians” star and former Olympian Bruce Jenner as a trans woman (Caitlyn Jenner). On the same day that the cover story was released, the Occupational Safety and Health Administration (OSHA) published a Best Practices Guide to Restroom Access for Transgender Workers.
The OSHA guide estimates that 700,000 adults in the United States are transgender. According to the website for GLAAD (Gay and Lesbian Alliance Against Defamation), transgender is an “umbrella term for people whose gender identity and/or gender expression differs from what is typically associated with the sex they were assigned at birth.” The OSHA guide states that “many transgender people transition to live their everyday life as the gender they identify with.” Transitioning is a different process for everyone and can include social changes (new first name), medical steps, and changing identification documents.
A month ago, OSHA issued a news release stating that it had entered into an alliance with the National Center for Transgender Equality (NCTE) to provide NCTE affiliates and others with information and resources to help foster “safer and more healthful American workplaces.” The restroom guide was developed at the request of NCTE.
Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. Under OSHA’s Sanitation standard (1910.141), employers under the agency’s jurisdiction are required to provide employees with sanitary and available facilities, so that employees will not suffer the adverse health effects that can result if toilets are not available.
Addressing why restroom access is a health and safety matter, the guide states that when employers restrict employees to use only restrooms that are not consistent with their gender identity or by requiring them to use gender-neutral or other specific restrooms, employees may feel singled out or fear for their physical safety. In some cases, such restrictions can result in employees avoiding using restrooms entirely while at work, which according to the guide, “can lead to potentially serious physical injury or illness.”
The guide establishes the following best practices:
- Employees should be permitted to use facilities that correspond with their gender identity. For example, a person who identifies as a man should be permitted to use men’s restrooms. The employee should determine the most appropriate and safest option for him- or herself.
- Employers can provide additional restroom options, which employees may choose, but are not required to use. These include: (1) single-occupancy gender-neutral (unisex) facilities; and (2) use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.
- Employees are not required to provide any medical or legal documentation of their gender identity in order to have access to gender-appropriate facilities.
- Employers cannot require a transgendered employee to use a segregated facility apart from other employees because of their gender identity or transgender status.
OSHA makes it clear in its publication that the guide is not a standard or a regulation and that it creates no new legal obligations on employers. Notwithstanding OSHA’s disclaimer, the Equal Employment Opportunity Commission has taken the position that discrimination against an individual because that person is transgender is a violation of Title VII’s prohibition of sex discrimination in employment. And in Maryland, the Fairness for All Marylanders Act of 2014, which added gender identity as a protected class to Maryland’s laws against discrimination in employment, became effective in October of 2014. There are other state and local laws regarding restroom access as well.
Takeaway: While the guide is not a standard or a regulation, employers should consider employing OSHA’s best practices as a model for their workplace. This is especially true for employers in states (such as Maryland) or localities that have made gender identity a protected class.