EVERYTHING YOU EVERYTHING YOU ALWAYS WANTED TO ALWAYS WANTED TO KNOW ABOUT SEX:KNOW ABOUT SEX:Gender, Transgender, Sexual Gender, Transgender, Sexual Orientation and Appearance Orientation and Appearance

IssuesIssues

Scott M. AbbottScott M. Abbott

The Birds and the BeesThe Birds and the Bees

Sex:Sex:Distinguishing biological or Distinguishing biological or anatomical characteristicsanatomical characteristics

Gender:Gender:One’s sexual identity as a One’s sexual identity as a social or cultural construct social or cultural construct (i.e., behavior, dress)(i.e., behavior, dress)

The Birds and the BeesThe Birds and the Bees

Transgendered individuals:Transgendered individuals:Transsexuals Transsexuals TransvestitesTransvestitesAndrogynesAndrogynes

TranssexualsTranssexuals

Those who live, or desire to live, in the Those who live, or desire to live, in the gender role opposite from the one in gender role opposite from the one in which they were bornwhich they were bornTransition: Process by which one Transition: Process by which one changes from one sex to another changes from one sex to another (physical, legal, behavioral)(physical, legal, behavioral)Living as the desired gender for an Living as the desired gender for an extended period of timeextended period of time

TransvestitesTransvestites

Also known as Also known as crosscross--dressersdressersUsually Usually heterosexual menheterosexual menNo desire to No desire to assume opposite assume opposite gendergender

AndrogynesAndrogynes

Neither masculine Neither masculine or feminine in or feminine in gender gender presentationpresentation

DistinctionsDistinctions

Gender Identity:Gender Identity:How individuals view How individuals view themselves in a themselves in a certain gender role certain gender role

Transsexuals view Transsexuals view themselves as themselves as member of opposite member of opposite gendergender

Sexual Orientation:Sexual Orientation:Orientation refers to Orientation refers to one’s sexual one’s sexual attraction to othersattraction to others

Heterosexual, Heterosexual, homosexual, or homosexual, or bisexualbisexual

GenderGender--Based DiscriminationBased Discrimination

Price Waterhouse v. HopkinsPrice Waterhouse v. Hopkins (1989):(1989):Failure to conform to gender stereotypeFailure to conform to gender stereotype“Macho” female“Macho” femaleNeed for “charm school”Need for “charm school”Act more feminine:Act more feminine:

Makeup Makeup Jewelry Jewelry HairstylingHairstyling

More Recently . . .More Recently . . .

Nichols v. Azteca Restaurant EnterprisesNichols v. Azteca Restaurant Enterprises(2001):(2001):Failure to conform to masculine stereotypeFailure to conform to masculine stereotypeReferred to as “her” and “she” by othersReferred to as “her” and “she” by othersMocked for carrying tray “like a woman”Mocked for carrying tray “like a woman”

Lessons LearnedLessons Learned

Failure to conform to Failure to conform to particular gender particular gender stereotype is actionable stereotype is actionable as sex discrimination as sex discrimination under Title VIIunder Title VIIRelated Related teasing/mocking can teasing/mocking can also create sexually also create sexually hostile work hostile work environmentenvironment

Sexual stereotyping: Who decides?Sexual stereotyping: Who decides?

NEW CASE: NEW CASE: EEOC v. NEAEEOC v. NEA (9(9thth Cir. 9/2/05) Cir. 9/2/05)

Can offensive conduct that is not sexCan offensive conduct that is not sex--specific violate Title VII?specific violate Title VII?Allegations: shouting at female employees Allegations: shouting at female employees in loud, profane mannerin loud, profane mannerPhysical conduct: standing/watching, Physical conduct: standing/watching, shaking fist, grabbing shouldersshaking fist, grabbing shouldersFemale employees intimidated Female employees intimidated Men subjected to similar behavior Men subjected to similar behavior

Equal Opportunity “Offenders”Equal Opportunity “Offenders”

Is this a viable defense?Is this a viable defense?NONO

Inquiry: Did the behavior affect women Inquiry: Did the behavior affect women more adversely than men?more adversely than men?“We now hold that evidence of differences “We now hold that evidence of differences in subjective effects . . . is relevant to in subjective effects . . . is relevant to determining whether or not men and determining whether or not men and women were treated differently”women were treated differently”

Sexual OrientationSexual Orientation

Discrimination not expressly prohibited Discrimination not expressly prohibited under Title VIIunder Title VIIProhibited under Nevada law (and that of Prohibited under Nevada law (and that of 10 other states plus D.C.)10 other states plus D.C.)Both actual and perceived orientation Both actual and perceived orientation protected (homosexuality, heterosexuality, protected (homosexuality, heterosexuality, bisexuality)bisexuality)

The Legal UnderpinningsThe Legal Underpinnings

Supreme Court:Supreme Court:Oncale v. Sundowner Offshore ServicesOncale v. Sundowner Offshore Services(1998)(1998)

Ninth Circuit:Ninth Circuit:Rene v. MGM Grand Hotel, Inc.Rene v. MGM Grand Hotel, Inc. (2002)(2002)

Transgender IssuesTransgender Issues

Protected by federal law?Protected by federal law?Title VII?Title VII?ADA?ADA?

State Law? State Law? Only 5 states have specific legislationOnly 5 states have specific legislationCalifornia permits employees to appear and California permits employees to appear and dress consistent with their “gender identity”dress consistent with their “gender identity”

The Biggest Issue:The Biggest Issue:

Which Which restroom restroom should a should a transgender transgender employee use?employee use?

The Restroom DilemmaThe Restroom Dilemma

The American Airlines policyThe American Airlines policy“An employee should use the facility based on “An employee should use the facility based on his/her current gender”his/her current gender”

The SHRM ApproachThe SHRM ApproachRestroom use should be consistent with Restroom use should be consistent with gender presentation . . . “should not depend gender presentation . . . “should not depend on genitalia”on genitalia”

Competing WisdomCompeting Wisdom

Both philosophies are aggressive in their own Both philosophies are aggressive in their own rightright

American Airlines’ policy reflects awareness of American Airlines’ policy reflects awareness of potential discomfort by other employeespotential discomfort by other employees

SHRM's approach is to focus on the employee SHRM's approach is to focus on the employee (avoid awkwardness, humiliation and potential (avoid awkwardness, humiliation and potential violence)violence)

SingleSingle--occupancy restroomsoccupancy restrooms

A viable alternative?A viable alternative?What if the employee What if the employee refuses?refuses?A potential “separate A potential “separate but equal” theory for but equal” theory for litigation?litigation?

Appearance StandardsAppearance StandardsTraditionally, employers Traditionally, employers have been free to have been free to discriminate against the discriminate against the unattractive unattractive Studies show that goodStudies show that good--looking people fare better looking people fare better the workplace the workplace Some nations (France) Some nations (France) have outlawed have outlawed discrimination based on discrimination based on physical appearancephysical appearance

Appearance as Sex DiscriminationAppearance as Sex Discrimination

Flight attendant Flight attendant cases:cases:

Possible BFOQ?Possible BFOQ?Customer Customer preferences?preferences?Weight standards?Weight standards?

Jespersen v. Harrah’sJespersen v. Harrah’s (2004)(2004)

““Personal Best Program”Personal Best Program”Females required to wear makeup, Females required to wear makeup, stockings, colored nail polish, hair stockings, colored nail polish, hair “styled”“styled”Males required to have short Males required to have short haircuts, trimmed fingernails, no haircuts, trimmed fingernails, no makeupmakeupPlaintiff refused to comply with Plaintiff refused to comply with makeup requirement makeup requirement ---- terminatedterminated

JespersenJespersen

Different appearance standards for Different appearance standards for different genders not different genders not per seper se unlawfulunlawfulStandards must not impose greater Standards must not impose greater burden on one sex than the otherburden on one sex than the otherEvaluate and compare the Evaluate and compare the totaltotal burdenburdenFailure to conform to feminine stereotype Failure to conform to feminine stereotype argument rejected by Ninth Circuitargument rejected by Ninth Circuit

GET ME SOMEBODYGET ME SOMEBODYHOTHOT

Employer PreferencesEmployer Preferences

Yanowitz v. L’Oreal USAYanowitz v. L’Oreal USA (2003)(2003)

Plaintiff fired for refusing male boss’s Plaintiff fired for refusing male boss’s directive to “get me somebody hot” by directive to “get me somebody hot” by replacing female sales associatereplacing female sales associateBoss pointed to attractive blonde and said, Boss pointed to attractive blonde and said, “God damn it, get me one that looks like “God damn it, get me one that looks like that”that”Plaintiff’s retaliation claim dismissedPlaintiff’s retaliation claim dismissed

L’OrealL’Oreal –– The Appeal (8/11/05)The Appeal (8/11/05)

On appeal, California Supreme Court On appeal, California Supreme Court reversed reversed AnalysisAnalysis: Read too much into boss’s : Read too much into boss’s direction (no evidence of sexual desire)direction (no evidence of sexual desire)Court itself engaged in stereotyping by Court itself engaged in stereotyping by assuming that a male associate’s assuming that a male associate’s appearance would not have been an issueappearance would not have been an issue

ADAADA--based claimsbased claims

Is it a disability?Is it a disability?Facial disfigurementFacial disfigurementObesityObesity

The EEOC’s take:The EEOC’s take:“The opportunity to make a living . . . Is not “The opportunity to make a living . . . Is not restricted to models and movie stars but is the restricted to models and movie stars but is the promise held out to every person with talent, promise held out to every person with talent, skills and ambition”skills and ambition”

Dress and Grooming StandardsDress and Grooming Standards

Employers remain free to impose such Employers remain free to impose such policiespoliciesOK to mandate different standards for OK to mandate different standards for each gender (but not more burdensome)each gender (but not more burdensome)Greater latitude to regulate appearance in Greater latitude to regulate appearance in public contact positions public contact positions

Should Unattractiveness Become a Should Unattractiveness Become a Protected Class?Protected Class?

What is the criteria?What is the criteria?Eye of the beholder standard?Eye of the beholder standard?

By whom (employers, EEOC, juries)By whom (employers, EEOC, juries)Bizarre possibilities:Bizarre possibilities:

“She’s not ugly enough to be protected”“She’s not ugly enough to be protected”“Oh yes I am”“Oh yes I am”

Issues to PonderIssues to Ponder

Most employers do not make employment Most employers do not make employment decisions merely based on looksdecisions merely based on looksEmployers have right to expect their Employers have right to expect their customer or public contact employees to customer or public contact employees to adhere to certain standards of dress, adhere to certain standards of dress, grooming and presentationgrooming and presentationCivil rights protections should not be Civil rights protections should not be extended based on vague criteria extended based on vague criteria

Thank You Thank You