Harassment

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By Kevin Green and Jesse Coleman

Seyfarth Synopsis:  A recent editorial authored by two female doctors in the Canadian Medical Association Journal proclaims that, “in the era of #MeToo, it is time for physicians to acknowledge that the medical profession is not immune to bullying, harassment and discrimination, and act to abolish these behaviours.”  #MeToo and the Medical Profession (Aug. 20, 2018).  While the #MeToo movement had unprecedented success increasing accountability for sexual misconduct among entertainment, political, and academic institutions, the healthcare industry did not receive the same attention. Recent findings demonstrate, however, that the #MeToo movement will soon leave its mark on health care as well.

Perception of Historic Tolerance of the Medical Profession

A 2018 report issued by the National Academies of Sciences, Engineering, and Medicine (NASEM) documents the problem of sexual harassment in the medical field in significant detail.  Sexual Harassment of Women: Climate, Culture, and Consequences in Academic Sciences, Engineering, and Medicine.  Among other things, the NASEM report demonstrates that the academic environments in medicine exhibit characteristics that create high risk levels for the occurrence of sexual harassment.  The report finds that, by far, the greatest predictor of sexual harassment is the organizational climate across an institution (also referred to as the perceptions of organizational tolerance).  In short, women are more likely to be directly harassed and to witness the harassment of others in environments that are perceived as more tolerant or permissive of sexual harassment.

According to a recent AP investigation, the medical industry has traditionally been more forgiving of sexual harassment allegations within its own ranks. The AP found that “when doctors are disciplined, the punishment often consists of a short suspension paired with mandatory therapy that treats sexually abusive behavior as a symptom of an illness or an addiction” and that decades of complaints regarding the leniency of the physician disciplinary system for sexual misconduct toward patients or co-workers has produced little change in the practices of state medical boards.  AP Investigation: Doctors Keep Licenses Despite Sex Abuse (Apr. 14, 2018). The AP report details that the causes underlying these issues are complex and varied, including:

  • Failure of the medical community to take a stand against the issue;
  • Institutional bias on part of medical review boards to rehabilitate instead of revoke licensure;
  • Perceived tolerance for sexual harassment through precedent of lenient penalties for sexually abusive doctors which inhibits current disciplinary actions;
  • Interference from administrative law judges who reduce stricter punishment sought by medical boards against sexually abusive doctors (though medicine boards may seek to override administrative decisions they disagree with);
  • Hospital disinclination to report abusive doctors;
  • Rehabilitative physician health programs that are either ineffective in addressing sexual misbehavior or ignore it altogether; and
  • Patient and employee reluctance to challenge a medical professional or employers.

Regardless of the causes, the days of organizational tolerance of sexual harassment in the medical profession appear numbered as more and more individuals and institutions search for solutions to these historical challenges.

The #MeToo Movement is Here to Stay

Though perhaps not subject to the same media coverage initially afforded, the #MeToo movement remains an active force in the workplace. Title VII filings accounted for 56 percent of all filings with the Equal Employment Opportunity Commission (EEOC) in FY 2018. Perhaps the most striking trend of all is the substantial increase in sex-based discrimination filings, primarily the number of sexual harassment filings.  See EEOC Puts The Pedal To The Metal: FY 2018 Results.

#MeToo added fuel to this area of the EEOC’s agenda, with 74 percent of the EEOC’s Title VII filings this year targeting sex-based discrimination.  Compare this to FY 2017, where sex based discrimination accounted for 65 percent of Title VII filings. Of the FY 2018 sex discrimination filings, 41 filings included claims of sexual harassment. 11 of those filings were brought in the last three days of the fiscal year alone. The total number of sexual harassment filings was notably more than FY 2017, where sexual harassment claims accounted for 33 filings.

How Medical Employers Can Challenge Perceptions of Organizational Tolerance

The #MeToo movement presents myriad challenges that defy one-size-fits-all solutions. However, there are practices that can assist employers in their quest to create harassment free workplaces. As the research suggests, creating an anti-harassment culture begins with company leadership and then can permeate the entire organization. Beyond simple compliance, legal measures should be implemented with the goal of improving accountability and reducing the occurrence of sexual harassment. Some measures include:

  • Update company policies to clarify protections and conduct, emphasize non-retaliation provisions, and ensure multiple reporting channels and robust response protocols;
  • Conduct proper, substantive investigations that are not outcome determinative; and
  • Enhance and refresh sexual harassment training from the top down and reinforce through communication and modeling.

Identifying and implementing active measures to challenge the perception of tolerance for any harassing or abusive behavior within an organization is an essential step toward meeting the #MeToo movement’s call for a respectful work environment for all.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.

By Linda Schoonmaker and John P. Phillips

Seyfarth Synopsis: In a recent decision, the Eleventh Circuit Court of Appeals held that the use of the N-Word in the workplace one time is sufficient to trigger a hostile work environment. Additionally, the Eleventh Circuit held that an employer may be held liable for workplace harassment when the plaintiff admitted that she did not complain of harassment until her final day of employment (and when the employer alleged that the plaintiff never complained of harassment). In light of this decision, and in light of the increased focus on workplace harassment over the past year, employers should use this case as an opportunity to review their No Harassment Policies and update their employment law training—to proactively ensure that harassing conduct does not occur in their workplaces.

When faced with allegations of a hostile work environment, employers often rely on two defenses: First, in order to be actionable, a hostile work environment must be both “subjectively” and “objectively” hostile. In other words, the plaintiff must subjectively perceive the harassment to be abusive, and the work environment must be one “that a reasonable person would find hostile or abusive.” Over the years, courts have typically required multiple instances of inappropriate or harassing behavior, in order to meet this standard. Second, if the harassing behavior was committed by co-workers, the plaintiff must have complained of the harassment. In other words, the employer must have knowledge of the harassing conduct (either actual or implied—companies cannot hide their heads in the sand) before it can be held liable.

In a recent decision, however, the Eleventh Circuit Court of Appeals held that use of the N-Word on one occasion could create a hostile work environment, and the Court held that the employer could be held liable even though the plaintiff admitted that she never complained about alleged harassment until (allegedly) right before her termination. (In fact, the company denied that she ever complained at all.)

Given the increased media focus on workplace harassment, this case provides a good opportunity for employers to review their anti-harassment policies and procedures, in order to proactively ensure that harassment-related issues do not proliferate in the workplace.

Background on the Case

In Smelter v. Southern Home Care Services, Inc., the plaintiff had been hired by Southern Home Care Services in July 2013 as a customer service supervisor. As part of her job, the plaintiff was responsible for coordinating with caregivers and clients, scheduling in-home visits, and accurately recording all caregivers’ work time. There was no dispute that the plaintiff required extra training and committed many mistakes during her employment. In September 2013, she was terminated for poor performance, after a final incident in which she got in a heated argument with and yelled at a co-worker. Following her termination, the plaintiff asserted the following allegations:

  • She had endured racist remarks from her co-workers nearly every day during her employment.
  • During the argument with her co-worker on the last day of her employment, her co-worker had called her a “dumb black [N-Word].”
  • Her co-workers had made derogatory comments about black men, black women, President Obama, and compared the plaintiff with a monkey from the movie Planet of the Apes.
  • Her supervisor thought the racist comments were funny.

Although the plaintiff admitted that she had never complained about any of the comments prior to the final incident, the plaintiff alleged that she had told her supervisor about the harassment before she was terminated. Her supervisor claimed that she never complained about any race-related comments, and the plaintiff’s exit interview paperwork—which both the plaintiff and her supervisor signed—had no mention of any harassment-related complaints.

Ultimately, the district court granted summary judgment for the company, finding that the harassment the plaintiff allegedly experienced was not sufficiently severe or pervasive enough to constitute a hostile work environment, as a matter of law, and that the company had no knowledge of the alleged harassment. The plaintiff appealed to the Eleventh Circuit.

The Eleventh Circuit’s Opinion

On appeal, the Eleventh Circuit reversed the district court’s dismissal of the plaintiff’s hostile work environment claim. In doing so, the Eleventh Circuit made two significant holdings:

First, the Court held that even standing alone, the single use of the N-Word was sufficient to constitute severe harassment. The Court explained:

Southern Home argues that [the co-worker]’s “one-time use” of [the N-Word] was insufficient to establish severity as a matter of law. We strongly disagree. This Court has observed that the use of this word is particularly egregious when directed toward a person in an offensive or humiliating manner.

The Court also held that the other comments alleged by the plaintiffs were similarly sufficiently severe to create a hostile work environment, and consequently, the plaintiff had alleged a legally actionable hostile work environment claim.

Second, the Court disagreed with the district court that the employer did not have knowledge of the alleged harassment. Although it was undisputed that the plaintiff failed to report any harassment until the final day of her employment (and the company disputed whether she had even reported it then), the plaintiff had alleged that the racist slurs were “funny to everybody that worked in the . . . office,” including her supervisor. The Court found that this was sufficient evidence to hold that the supervisor had knowledge of the comments, since she could not have found the comments funny if she did not hear them.

Thus, the Court found that the plaintiff had alleged an actionable hostile work environment claim, and it remanded the case to the district court for trial.

Takeaways

In light of this decision and the increased awareness of improper workplace conduct stemming from the #MeToo movement, there are a number of proactive steps that employers can take to help ensure that their companies have the proper culture to avoid harassment complaints and allegations:

  • Review and revise, if necessary, the No Harassment Policy. Most companies have No Harassment Policies (and if your company doesn’t, it should). However, often those policies have not been updated in a number of years. Now is a good time to pull out the policy, review it, and make any necessary updates, including ensuring that there are clear, and multiple, avenues for employees to report harassment.
  • Train your managers and supervisors. Your supervisors are your most effective buffer against employment law-related allegations and lawsuits, and they serve as a conduit between the company and its employees. Managers and supervisors should get regular anti-harassment and other employment-law based training, in order to ensure that they will know when harassment is occurring and will know what to do if they spot inappropriate conduct.
  • Focus on proper documentation. In conjunction with training your supervisors and managers, documentation issues should be covered. To defend any lawsuit, you must have good documentation. Your supervisors should be trained on correctly documenting all employment actions.
  • Promptly investigate and correct any complaints of harassment. Once the company is aware of any improper harassment-related conduct, whether from a direct complaint or an observation in the workplace, the company must take prompt and appropriate action. In doing so, it is important to take all allegations and complaints of harassment in the workplace seriously, immediately perform a thorough and complete investigation of any harassment complaints, and implement swift, appropriate, and proportional remedial action, if necessary, including possible termination or suspension.

Over the past year, workplace harassment issues have increasingly grabbed headlines. While all employers can agree that use of the N-Word is especially egregious, employers must take steps to ensure that such conduct does not occur. More importantly, employers must ensure that they have the policies and procedures in place to prove that such conduct did not occur. This means having an up-to-date No Harassment Policy, and supervisors and managers who are well-trained on anti-harassment and proper investigation methods. By proactively addressing any workplace harassment issues head-on, employers can put themselves in the best possible position to defend any subsequent lawsuit.

By Joshua M. Henderson, Ilana R. Morady, Brent I. Clark, and Craig B. Simonsen

Introduction: We are posting our colleagues’ California Peculiarities Employment Law Blog post on workplace violence. While this particular topic is California centric, the principles discussed below are universal, and appropriate to publish widely. For instance, workplace violence under federal OSHA is generally citable under the General Duty Clause of the Occupational Safety and Health Act. Many states, including California, also enforce workplace violence under their own versions of the General Duty Clause. Additionally, local authorities generally will not get involved in a situation where employment workplace violence is feared — such as where one employee makes threatening statements about a co-worker/manager. But where the employer/employee has obtained a restraining order, the police are more likely to intercede.

By Christopher Im and Minal Khan

Seyfarth Synopsis: Workplace violence is a major concern that can take the form of intimidation, threats, and even homicide. But fret not: California employers can arm themselves with restraining orders, to prevent a modern version of the “Fight Club” at work.

Rule Number 1: If There’s a Workplace Violence Threat, DO Talk About It—In Court

Being at work during a scene reminiscent of “There Will Be Blood” is not an ideal situation. Yet incidents of workplace violence are alarmingly common. According to the Occupational Safety and Health Administration, nearly two million Americans report that they have witnessed incidents of workplace violence, ranging from taunts and physical abuse to homicide. The recent Long Beach law firm shooting by an ex-employee serves as a chilling reminder of what forms such violence can take.

While there is no surefire way to stop unpredictable attacks against employees—whether by a colleague, client, or stranger—California employers can avail themselves of measures to reduce the risk of workplace threats. One such measure is a judicial procedure: a workplace violence restraining order under California Civil Procedure Code section 527.8.

Rule No. 2: Understand What a California Restraining Order Looks Like

A California court can issue a workplace violence restraining order to protect an employee from unlawful violence or even a credible threat of violence at the workplace. A credible threat of violence simply means that someone is acting in such a way or saying something that would make a reasonable person fear for the person’s own safety or that of the person’s family. Actual violence need not have occurred. Many actions short of actual violence—such as harassing phone calls, text messages, voice mails, or emails—could warrant issuing a restraining order.

Restraining orders can extend beyond just the workplace and protect the employees and their families at their homes and schools. A California court can order a person to not harass or threaten the employee, not have contact or go near the employee, and not have a gun. A temporary order usually lasts 15 to 21 days, while a “permanent” order lasts up to three years.

Rule Number 3: Employer Requests Only, Please

The court will issue a workplace violence restraining order only when it is requested by the employer on behalf of an employee who needs protection. The employer must provide reasonable proof that the employee has suffered unlawful violence (e.g. assault, battery, or stalking) or a credible threat of violence, or that unlawful violence or the threat of violence can be reasonably construed to be carried out at the workplace.

So how does an employer request and obtain protection for their employees?

Rule Number 4: Document the “Fight”

The employer must complete the requisite forms and file them with the court. Though the forms do not require it, it often is helpful to include signed declarations from the aggrieved employee and other witnesses.

If a temporary restraining order is requested, a judge will decide whether to issue the order within the next business day, and if doing so will provide a hearing date on a permanent restraining order. A temporary restraining order must be served as soon as possible on the offender. The order becomes effective as soon as it is served. Temporary restraining orders last only until the hearing date.

Rule No. 5: Keep Your Eyes on the Prize at the Hearing

At the hearing, both the employee needing the restraining order and an employer representative should attend. Employers may bring witnesses, too, to help support their case. The person sought to be restrained also has a right to attend, so the employee needing the restraining order should be ready to face that person. If necessary, the employer or the employee can contact the court or local police in advance to request that additional security or protective measures be put in place where there is a threat of harm.

During the hearing itself, the judge may ask both parties to take the stand for questioning. Upon hearing the facts, the judge will either decide to deny the requested order or decide to issue a permanent restraining order, which can last up to three years.

Restraining orders are a serious matter, as employers are essentially asking the court to curtail an individual’s freedom. But such an order is a powerful tool that an employer may find necessary to protect the safety of its employees.

Workplace Solutions: Even though it may relatively easy to demonstrate a credible threat of violence and thus obtain a protective order, know that California courts protect all individuals’ liberty, including their freedom of speech. Obtaining an order to restrain that liberty requires a detailed factual showing.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of Seyfarth’s OSHA Compliance, Enforcement & Litigation Team.

By Rashal G. Baz, Katherine Mendez, and Chelsea D. Mesa

Seyfarth Synopsis: Employers are now being presented with more options to outsource workplace complaints through third party companies and mobile apps. This may create an ease in grievance reporting for the employee, but does not necessarily shield employer liability.

Harassment in the workplace is not a novel issue, but with the rise of national and global movements such as #MeToo and Time’s Up — it has been on the forefront of our social, political and business conversations. Hollywood has cast a spotlight on sexual harassment and the sometimes imperfect protocols in place to address concerns. These issues are appearing in the headlines, TV shows, and social media platforms with the potential impacts of destroying a company’s goodwill and bottom line.

In response to this outcry and several industries’ spotting an opportunity to get involved, the technology-driven community has responded with mobile apps, anonymous grievance non-profit websites, new third-party consulting companies, and modernized hotline services. The goals of these new technologies and strategies is to heed complaints and optimize an employer’s response.

The Current State of Things

Before touching on the reporting outlets, it is critical to understand why a demand for such services exist. Historically, there have been studies that note the resistance to workplace harassment reporting. This could be attributed to a fear of employer retaliation, unwanted peer attention, distress in confronting a perpetrator or lack of trust in workplace changes following such a complaint. Sometimes employees simply do not know or recall where to find the protocol for filing harassment incidents. These are among the reasons the Equal Employment Opportunity Commission and other organizations shine a close light on the response procedures employed by a company.

Many employers use a host of different practices designed to make reporting as simple and effective as possible. These range from traditional reporting to a supervisor or HR in writing or in person, to the use of a designated ombudsman, email submissions and hotline phone numbers. The goal is to encourage the reporting of complaints, so they can be resolved.

A New Twist on Reporting

Mobile Applications: Glued to our phones, it only follows that harassment and employment complaint apps have been created for the workforce. When reporting an issue is easy and familiar, it stands to reason that more information will be transmitted to the business. One example app uses a subscription-based service employers can purchase and integrate into internal procedures. The app allows workers to identify themselves and their location or remain anonymous and pick from different pre-set messages to indicate the nature and severity of the concern. These apps also allow an employee to include documents, images or videos that are sent to their choice of two to four default managers who will receive the correspondence. These services claim to provide a safe space for raising concerns, free from external interference.

Consulting Groups: Third-party consulting groups have also responded to the need for something new by creating company-specific online environments where employees can file complaints. In turn, the consultants will assess the complaint, write an action plan on what type of investigation is needed, and provide an external “expert” to do a workplace investigation for inappropriate behavior. These companies tout experienced personnel that investigate the issue while avoiding the purported “inherent bias” human resources personnel may hold toward the complainant or accused employee.

Hotline Services: Outsourced workplace harassment and discrimination hotline services are not new, but seemed to have stepped up their game as well. Typically, hotlines provide a company-specific phone number, voicemail box and email address where employees can voice grievances. Instead of merely transmitting the collected data to employers, the third-party services are now also offering more involvement in employee complaints. Several now offer to have “experienced” human resource professionals produce a report that allows the employer to handle the issue internally, or chose an external route to be handled by a “team of experts,” similar to the aforementioned consulting process.

Will This Help My System?

While additional reporting processes can be beneficial to obtaining data and addressing complaints, using an external service does nothing to change any of the employer’s obligations. If an employer’s practices and implementation of strategy aren’t already strong, implementing the “hot new thing” would simply serve as a rearrangement of chairs on the deck of the Titanic, and not really solve much. In considering whether to add this to its arsenal, employers would have to trust that the individuals involved with their complaints are, in fact, qualified to handle them. Failures along the way will still fall on the shoulders of an employer.

An employer’s uniform response to delicate situations can help defend against retaliation claims stemming from harassment reports; however, it is difficult to remember, and thus repeat, how you responded to a previous situation without accessible and thorough documentation. Outsourcing the complaint to a third-party technology may assist in providing a platform employers can reference when handling a new grievance. However, these services can also expose employers to cybersecurity issues. This false sense of security can end in costly litigation if you do not audit these services on an annual basis. Complaints lost in the cloud will result in claims against employers, not the app.

These external systems also do not address the alleged “bias” concern plaintiffs often argue exist. These systems would still be contracted and paid for by the employer, who will have likely partnered with the third party to set up the system. And as the third party works with the employer over time and learns its business, a relationship between the parties (and a desire to keep the employer happy so the relationship continues) will likely develop. It is unclear how a third party will avoid the same arguments of bias that an internal process will face. This further rings true because the relationship’s collaborative nature still has the employer making the ultimate decision on next steps in response to a complaint.

On the flip side, employers who choose not to utilize such services may not be out of reach of their effects. There are organizations creating anonymous hotlines that allow employees from any company to submit a report that in turn is “instantly” sent to who they deem the appropriate individuals within the complainant’s organization. And Silicon Valley has created smartphone apps that allow employees to anonymously report an incident to the company’s chief executive and board. This places the burden on those who receive these complaints, who may not be the person within an organization able to respond quickly enough, to send them through the proper channels. Even though these systems may provide another means for employees to feel as though they have raised a concern, there is no guarantee it gets into the company and to someone who can address it.

The Takeaways

There have been many assessments on how to minimize incidents of harassment and create a zero-tolerance environment for such scenarios. Initially, these new systems may seem like the right solution, but if you are integrating protocols that are not followed by the head of the company to the grassroots, a palpable workplace change and a legally sound grievance procedure is unlikely.

The benefit of these outlets include the creation of additional accessible channels workers may feel safe utilizing, but does not guarantee the complaint gets in the hand of the person who has the power to address it. Using a third party to assess complaints may avoid alleged HR biases in theory, but the company’s relationship with the service and ultimate decision-making ability weakens the practicality of that benefit.

These resources may represent the future of reporting and thus require employers to proactively adopt policies and training to avoid being blindsided by their arrival. Ultimately, the release of numerous online lists pointing out sexual harassment perpetrators and the rise in anonymous direct-to-company complaints may create an ethical duty to prepare your staff on how to process the information. Should you chose to contract these grievance reporting services, it would be wise to conduct internal training on how to utilize it and what human resources/supervisors should do when they receive notice of a complaint. Finally, evaluate and update your workplace harassment and reporting policies.

Ensure your company has the internal knowledge it needs to react when the time comes. And always feel free to reach out to your favorite Seyfarth employment lawyer for guidance on how to implement and maintain the most effective and appropriate processes as we march toward the future of harassment reporting.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Policies and Handbooks Team or the Labor & Employment Team.

By Scott Rabe and Marlin Duro

Seyfarth Synopsis: In its recent decision in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., No. 16-2424, 2018 U.S. App. LEXIS 5720 (6th Cir. Mar. 7, 2018), the U.S. Court of Appeal for the Sixth Circuit has sent the strong message that the Religious Freedom Restoration Act (RFRA) has minimal impact on the Equal Employment Opportunity Commission’s (EEOC) authority to enforce the anti-discrimination laws under Title VII of the Civil Rights Act of 1964 (Title VII).

The RFRA, enacted in 1993, prohibits the government from enforcing a law that is religiously neutral against an individual, if the natural law “substantially burdens” the individual’s religious exercise and is not the least restrictive way to further a compelling government interest. Importantly, the RFRA applies only in the context of government action, and therefore would not provide a defense for an employer in a civil suit brought by a private plaintiff.

In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., a Sixth Circuit panel held in a unanimous decision that: (i) Title VII’s proscription of discrimination on the basis of sex encompasses a prohibition on discrimination based on transgender status, and that (ii) in this case the RFRA would not limit the EEOC’s authority to enforce anti-discrimination laws under Title VII. With this decision, the Sixth Circuit became the first federal Court of Appeals to address the extent to which the RFRA may limit the EEOC’s power to enforce Title VII.

By way of background, the EEOC brought suit against a funeral home on behalf of a transgender employee, Aimee Stephens, who was terminated from her employment shortly after informing her employer that she intended to transition from male to female. The EEOC alleged the funeral home violated Title VII by terminating Stephens’ employment on the basis of her transgender or transitioning status and her refusal to conform to sex-based stereotypes. The funeral home argued that Title VII did not prohibit discrimination on the basis of transgender status and that the funeral home was protected from enforcement of Title VII by the RFRA as the government action would constitute an unjustified substantial burden upon the funeral home owner’s exercise of his sincerely held religious beliefs.

Both parties moved for summary judgment and the district court found in favor of the funeral home on both motions The district court found that Title VII did not protect against discrimination based on transgender status and that, while Stephens had suffered discrimination based on sex stereotyping, the RFRA prevented the EEOC from suing on her behalf.

On the EEOC’s appeal, the Sixth Circuit reversed the district court with respect to both motions and granted summary judgment in favor of the EEOC. First, the Sixth Circuit held that the funeral home’s conduct violated Title VII, reinforcing its prior holdings that discrimination against employees because of their gender identity and transgender status are illegal under Title VII’s prohibition of sex discrimination based on sex stereotyping. The Sixth Circuit explained that “discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex” and found that firing a person because he or she will no longer represent him or herself as the gender that he or she was born with “falls squarely within the ambit of sex-based discrimination” forbidden under Title VII. Id. at *18.

Second, the Sixth Circuit held that the EEOC’s enforcement of Title VII against the funeral home did not violate the funeral home’s rights under the RFRA. A viable defense based on the RFRA requires a demonstration that the government action at issue would substantially burden a sincerely held religious exercise. Although the Sixth Circuit treated the running of the funeral home as a sincere religious exercise by the owner, it held that the alleged burden caused by the enforcement of Title VII was not “substantial” within the meaning of RFRA. The Sixth Circuit reasoned that tolerating an employee’s understanding of his or her sex and gender identity was not “tantamount to supporting it” and that mere compliance with Title VII, “without actually assisting or facilitating transition efforts,” did not amount to an endorsement by the employer of the employee’s views. Id. at *59, *61. Nor, the Sixth Circuit explained, could the funeral home rely on customers’ “presumed biases” against transgender individuals to meet the substantial burden test. Accordingly, the Sixth Circuit held that the funeral home had not demonstrated a substantial burden on the its religious exercise.

While the Sixth Circuit could have ended its analysis there, it went on to hold that even if tolerating Stephens’ gender identity and transitioning status were a “substantial burden” on the funeral home’s religious exercise, the EEOC did not violate the RFRA because the agency had a compelling interest in eradicating all forms of invidious employment discrimination, and enforcement of Title VII through its enforcement function was the least restrictive means for eradicating discrimination in the workforce. This analysis, if found not to apply only to the facts of this case, could ostensibly doom any defense to a Title VII action within the Sixth Circuit where an employer raises a defense based on the RFRA.

The Sixth Circuit’s opinion is an important one, as it addresses two of the more hot button topics in employment jurisprudence: the scope of the definition of “sex discrimination” under Title VII and the impact of laws protecting the free exercise of religion in the workplace. On the former, this opinion joins the recent trend in decisions finding that gender identity is inextricably linked with sex and therefore is protected under Title VII. And on the latter, the Sixth Circuit has laid down a gauntlet as the first federal circuit addressing the RFRA’s impact on the EEOC’s Title VII enforcement power. The decision is clearly intended to send a strong message that the RFRA has limited application, if any, in defense of a Title VII action brought by the Commission. While time will tell whether other federal circuits will adopt a similar interpretation, if the Sixth Circuit’s legal rationale is followed, employers will be hard-pressed to defend Title VII claims brought by the EEOC based on the alleged exercise of religious freedom.

In light of the current uncertainty regarding the ultimate interpretation of Title VII as it applies to gender identity, employers should regularly review their policies to ensure that adequate protections are provided to employees on the basis of their gender identity, and transgender and transitioning status. As always, we also invite employers to reach out to their Seyfarth contact for solutions and recommendations regarding anti-harassment and EEO policies and addressing compliance with LGBTQ+ issues in the law.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Policies and Handbooks Team or the Labor & Employment Team.

By Scott Rabe and Sam Schwartz-Fenwick

Seyfarth Synopsis: In landmark decision, the Second Circuit joins the Seventh Circuit in holding that Title VII prohibits discrimination on the basis of sexual orientation as a subset of sex discrimination.

In a landmark decision today in Zarda v. Altitude Express, Inc., No. 15-3775, the Second Circuit ruled en banc that Title VII prohibits discrimination on the basis of sexual orientation as a subset of discrimination on the basis of sex. The Second Circuit now joins the Seventh Circuit, the EEOC, and a number of district and administrative courts across the country that have interpreted Title VII to extend its prohibition of sex discrimination to sexual orientation.  Chief Judge Katzmann authored the decision for the plurality, in which four judges joined in full, five judges joined in part, and to which three judges dissented.  In total, eight of the thirteen judges issued an opinion.

The Appellant in Zarda, a former skydiving instructor, sued his employer, alleging that he was terminated from his job after he revealed to a customer that he was gay.  Specifically, he alleged sex discrimination under Title VII asserting that his employment was terminated because he failed to conform to male sex stereotypes because he was gay.  The district court dismissed Zarda’s Title VII claim at summary judgment, holding that, although there was sufficient evidence to permit his claim for sexual orientation discrimination to proceed under New York law, which explicitly prohibits discrimination on the basis of sexual orientation, plaintiff had failed to establish a prima facie case of gender stereotyping under Title VII based on his sexual orientation.  The district court explained that in reaching this decision it was constrained by Second Circuit precedent in Simonton v. Runyon and Dawson v. Bumble & Bumble, which held that Title VII did not prohibit discrimination on the basis of sexual orientation. Today the Second Circuit reversed, and in doing so, explicitly stated that it was overturning its prior opinions in Simonton and Dawson.

In the plurality opinion, Judge Katzmann explained that sexual orientation discrimination should be treated as a subset of sex discrimination for several reasons.  He observed that “sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted,” that “sexual orientation discrimination is . . . based on assumptions or stereotypes about how members of a particular gender should be, including to whom they should be attracted,” and that “sexual orientation discrimination is associational discrimination because an adverse employment action that is motivated by the employer’s opposition to association between members of particular sexes discriminates against an employee on the basis of sex.”   The plurality also found compelling that, while the consensus among Circuits and the EEOC in 2000 at the time of Simonton was that Title VII did not protect against discrimination on the basis of sexual orientation, the EEOC and the Seventh Circuit both changed their stance on this issue and courts across the country continue to explore this issue.

The main dissent, written by Judge Lynch and joined in part by two justices, argued primarily that under a strict textual interpretation of Title VII, the statute did not protect against discrimination on the basis of sexual orientation, as it is clear Congress could have but did not include sexual orientation as a protected class.  This is the same rationale employed in 2017 by the Eleventh Circuit in Evans v. Georgia Regional Hospital, which recently held in a divided opinion that Title VII’s prohibition on sex discrimination does not encompass discrimination on the basis of sexual orientation.

Today’s decision widens the Circuit split on this issue.  Further, the diverse array of opinions among the judges on the Second Circuit mirrors the nationwide divergence in views regarding the protections that Title VII affords employees based on their sexual orientation.  While the EEOC has now taken the clear position that discrimination against workers because they are lesbian, gay or bisexual is sex discrimination under Title VII, the Department of Justice has issued guidance and sought to enforce an interpretation of Title VII that discrimination on the basis of sexual orientation is not prohibited under Title VII as sex discrimination.  Circuit, district, and administrative courts are also split.  With the Circuit divide, complicated by vastly divergent interpretations of Title VII by the very agencies entrusted to enforce Title VII, the issue is poised for a Supreme Court ruling.

In light of the current uncertainty regarding the ultimate interpretation of Title VII as it applies to sexual orientation, as well as gender identity, see our prior post, and because numerous state and local laws already explicitly prohibit discrimination on the basis of sexual orientation, employers should regularly review their policies to ensure that adequate protections are provided to employees on the basis of their sexual orientation or gender identity.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Policies and Handbooks Team or the Labor & Employment Team.

By Philippe Weiss and Erin Dougherty Foley

Seyfarth Synopsis: In the last in a three-part series addressing sexual harassment in the workplace, we asked Philippe Weiss, Esq., Managing Director of Seyfarth Shaw at Work, to share insights from the front lines, that can help organizations credibly and effectively ensure their company culture is respectful and not tolerant of discrimination, harassing behavior or other inappropriate workplace conduct.

Q.  Based on your client and agency interactions, how have leadership and organizational mindsets changed since the rash of harassment scandals started to make national news?

A.  Daily headlines detailing high-profile harassment scandals clearly have many company executives and compliance professionals talking and worried. (Our call volume at SSAW has spiked and, notably, a significant number of callers are C-Suite members, themselves.) High-level executives have sought out our attorney-trainers and asked about strategies to avoid becoming an unwitting enabler.  We sense a wake-up call among many of those in key positions of power.

In-house legal and HR teams are reporting to us that they are now more fully appreciating how uncomfortable it can be for employees to confront those who cross a respect line and to report misconduct by higher-ups.  Organizations realize that they need real solutions that will be impactful and help reinforce a culture of non-tolerance for harassment in the workplace.

Q.  What kind of an opportunity has this created for compliance professionals? Do you and your group view the current momentum as sustainable?

A.  We see a significant opportunity for compliance professionals, as organizations are now willing to invest and prioritize harassment prevention and EEO – with longer term, comprehensive, and more strategically designed initiatives.   We have seen line items suddenly open-up in many annual budgets for compliance and conduct programming. Organizations are also increasingly investing in climate and employee surveys/focus groups, which (of course) must be handled delicately and skillfully – but which can also powerfully inform training and communications.

It is certainly challenging to predict the future and determine whether the current momentum is sustainable.  But given the depth and breadth of the publicity and #MeToo movement and related issues being raised, we see a clear shift that shows no signs of abating.

Q.  Given the apparent failure of passive and cookie-cutter training programs, what training solutions have you and others in the field found actually achieve buy-in and create meaningful behavioral change?

A.  There are a number of different things companies should be considering:

From a training planning standpoint:

  • Consider your claims history, internal complaint records, climate surveys, questions and concerns raised by employees, and organizational environment industry factors in program development.
  • Ensure that policies, codes of conduct and statement of values are just where you want them, in terms of content, core messaging and design.

From a training content perspective:

  • Focus on encouraging and simplifying internal reporting; in this regard many clients are asking for more extensive skill-building around “Responding to and In-taking Complaints and Concerns” to be added into their programs;
  • Focus on “Gateway Conduct” – such as leaders dressing down subordinates, which many have seen devolving into more egregious behavior, over time;
  • Focus on encouraging and creating a “step-up” culture of bystander intervention. Clients we work with report real value in referring to bystanders in the positive – as in “Accountable Allies” or “First Responders.” They have also found critical value in both championing and equipping bystanders with credible skills and simple scripts. “Accountable Allies” must be trained to:

** Spot colleagues’ discomfort;

** Support colleagues, using a safe, step-up, speak-up model;

** Employ distraction and extraction strategies, as appropriate;

** Know when and how to call in reinforcements.

We have known for some time that this is all about surmounting barriers of unease and reluctance to appropriately, safely and collectively “check” those starting to cross a line of conduct/norms (including peers at the C-Suite level). That is why the simplest, most user-friendly and tailored scripts can prove surprisingly effective, when built into a larger and cohesive culture strategy.

From a training design and delivery methodology standpoint:

  • Deliver training in everyday language that emphasizes real-world skill-building and avoids “legalese;”
  • Utilize organizational policies, corporate value statements, and best practices as core aspects of the messaging;
  • Wherever possible, arrange content around a set of practical thematic core elements. Choose central concepts and mantras so that delivery is not perceived as a litany of do’s and don’ts;
  • Sessions should all be engaging and fully interactive. This feature is essential. While always calibrating for an audience, the rule is: the more true interactivity, the better. (Having said that, individuals should not be singled out and “compelled” to answer questions.) Post-training surveys show that participants learn little from a “talking head” instructor. They learn and buy-in from collaborating and seeing how their colleagues respond to relevant situationals – and by building a consensus.
  • Ensure that best practices answers come from the group.
  • Keep to a minimum the use of PPTs, videos, and other relatively passive tools.
  • Because the credibility and impact of the presenter is critical for effective training, facilitators should be qualified attorney-trainers with practice and business leadership experience, who are also (importantly) entertaining and professional presenters with a recognized facility for high-energy delivery and an ability to draw-out individuals and powerfully connect their answers.

An added forward-looking defense bonus is deploying a course that has been evaluated and cited as a credible “culture changer” by federal agency-designated monitors in consent decrees. (Editor’s Note – SSAW has such programs! SSAW has participated in numerous EEOC and DOJ consent decrees where the long-term impacts of various communication and training strategies targeting harassment were comprehensively – and positively – evaluated.)

Q.  What additional top-down communications solutions are most effective in the current climate?

A.  One common approach is an all-employee memo re-articulating the organization’s commitment to respect – a “dignity-declaration” of sorts.

Beyond that, many forward-thinking organizations are employing a “wrap around” training communication cascade/approach. Like the training program itself, communication cascades should use simple terms, statements and values – the simpler, the more memorable.  Communications should be delivered through as many valuable and resonant mediums as possible – from team meetings, to emails, to postings on portals, to delivery of hard copies – and should be presented in differing and creative ways, whether virtually, visually or verbally.  With some forethought, organizations can calibrate the timing and variety of such communications so they impact without becoming redundant.

Of course, the most effective communication strategy is one where management at every level consistently refers to your harassment prevention and conduct training mantras and take-aways.

If you have questions about training or how to work toward a more respectful culture within your organization, please contact the authors, your Seyfarth attorney or Seyfarth Shaw at Work directly.

By Kyla Miller, Megan P. Toth, and Erin Dougherty Foley

Seyfarth Synopsis: Gone are the days where sexual harassment training will be enough. It’s time to shift the workplace focus from just ticking a box (i.e., training complete) to creating a culture where harassment (or discrimination) of any kind is truly not tolerated.  Promptly and effectively responding to such allegations is one step in the right direction.  This is the second article in a three-part series addressing sexual harassment in the workplace, which looks closely at corporate culture and provides tips on how companies might avoid being the next sexual harassment headline.

#MeToo In the Workplace and How to Address It

It’s been more than 30 years since the Supreme Court ruled that sexual harassment is a form of sex discrimination under Title VII, and it’s been nearly 20 years since it mandated that complaints of sexual harassment (and discrimination) be investigated. Yet, in reality, as made clear in recent media reports, most violations go unreported and uninvestigated. The EEOC estimates that, of the 30,000 harassment complaints they receive each year, only 6% to 13% of individuals who experience harassment actually file a formal complaint with the EEOC.  However, the #MeToo campaign may be on its way to changing that statistic.

One key to preventing #MeToo in the workplace is fostering a corporate culture that not only says behavior matters, but also shows behavior matters.  But how do employers both walk the walk and talk the talk?  The following are some helpful tips:

  1. Understand what sexual harassment is … the obvious and the not-so-obvious.

The #MeToo campaign has revealed that the vast majority of people have questions or doubts about whether conduct really is sexual harassment.  Let’s take a little quiz:

Could the following acts be considered sexual harassment? Answer Yes or No.

Requests for sexual favors?

Physical Touching?

Comments relating to a person’s sex generally?

A woman asking out another woman?

A man favoring another man (over a woman)?

A co-worker repeatedly teasing another co-worker about sex?

A client or customer sending gifts to an employee?

Could you definitively answer yes or no to each of these examples?  Or did you need more context?  Your answer should be the latter, because yes, each of those examples could be sexual harassment, but each of them could also NOT be sexual harassment.  It depends on the nature, severity and pervasiveness of the conduct.  Whether or not conduct legally rises to the level of actionable “sexual harassment” cannot be analyzed in a vacuum.

Confused?  Here’s why: The question is (legally) whether the conduct at issue was “severe or pervasive,” such that it affected the terms and conditions of the employee’s workplace, objectively and subjectively.

The point –– Not all physical touching, bawdy conversations or allegations of sexual harassment are legally actionable — even if the person reporting it was offended.  Each inquiry is unique and must be investigated thoroughly to determine if sexual harassment actually occurred and what corrective action, if any, should be taken.

  1. Foster an inclusive culture through training and positive reinforcement by managers.

Companies that continue to tolerate bad behavior are placing themselves at risk.  Even conduct that does not cross the line but is disrespectful or rude takes a toll on employee morale.  Attitudes and culture can change.  Employers can provide training to set behavior expectations, and lead by example to create a culture that does not encourage or tolerate such conduct.  However, training simply to prevent legal liability (i.e., because it is required by law) will fall short.  Companies must work from the top down to incite change, which may include a whole-company approach to create and maintain a culture of tolerance, compliance and respect.  In thinking about how to deploy that type of training, keep in mind that training should be:

  1. Tailored. Mirror training to realistic situations that are specific to your work environment.
  2. Frequent. Once a year or more. Anything less is not enough to highlight it as a high priority.
  3. Interesting. Vary the dynamic, style, form and content each time it is presented. (Keep it fresh!)

To create a systemic culture of inclusion, one place to start is with your Human Resources department.  Your HR department should be diverse and accurately reflect your workforce so that they are able understand and respond to its unique demands.  In addition to HR, the actions and integrity of your corporate leaders are crucial. Your company’s leaders must demonstrate a sense of urgency and commitment to your employees, and particularly to preventing discrimination and harassment. How, you ask? Commit the time and resources towards mindful training and continued support to top-level managers to ensure those who have the power and authority to effect change have the support and resources to do it.  It bears repeating: a culture of tolerance and inclusion starts from the top down.

  1. Allow multiple avenues for reporting harassment.

Most employers have an anti-harassment policy. But simply stating that it is not tolerated is not enough. Make it clear that there are multiple avenues for reporting misconduct. For example, allow employees to notify human resources, contact a higher level executive, or call a third-party hotline.  Giving employees multiple ways of getting the complaints heard further encourages such reporting.

  1. Identify situational risk factors.

Being proactive and identifying risks before they turn into problems (or even worse, lawsuits) is half the battle. One place to start is identifying and addressing circumstances, unique to your company, that may increase the risk for sexual harassment claims. For example, the following situations may increase the risk of sexual harassment claims:

  • Workforces with significant cultural and language differences in the workplace;
  • Workforces with significant age or gender imbalances;
  • Workplaces that value customer satisfaction over employee well-being;
  • Isolated workspaces;
  • Workplace cultures that tolerate or encourage alcohol consumption.
  1. Understand the corporate role.

Even in the wake of heightened media on this issue, protecting your workforce and the company is not impossible.  Employers’ legal responsibilities are to: (1) take reasonable efforts to prevent sexual harassment and (2) to promptly and effectively investigate, respond to, and address complaints. By doing both of these things, employers lessen their chances of being found liable for their employees’ behavior in the wake of a lawsuit.

As recent headlines suggest, “good enough” is “not enough.”  Doing just the bare minimum will not suffice. Strive to do more. Over-train. Over-inform. Over-discuss. If employers can accomplish this, they are on the right path to preventing #MeToo in the workplace.

Next up – We will present insights from Seyfarth Shaw at Work’s Managing Director to share his insights from the front lines and provide his thoughts on how organizations can credibly and effectively combat workplace sexual harassment.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Policies and Handbooks Team or the Labor & Employment Team.

Seyfarth Synopsis:  Over the next few weeks, we’re going to weigh in on the growing national debate around the recent wave of sexual harassment allegations.  To date, no one seems immune from the allegations: celebrities, politicians, presidents. See for instance Time Magazine’s Person of the Year 2017 issue. We hope this dialogue will empower employees and employers, alike, to speak up before inappropriate, but previously unmentioned conduct, festers.  This conversation also creates an opportunity for a company to look hard at its corporate culture and how it can strive to make it welcoming and inclusive. Welcome to our three part series. 

The First in a Three Part Series Addressing Sexual Harassment in the Workplace.  (Part 1)

By Erin Dougherty Foley

A Blog in Three Parts:  Kicking off our three part series – this week’s installment will look at how to avoid some of the landmines that can accompany holiday parties; Part 2 will look at the role corporate culture plays in establishing that feeling of mutual respect and shared courtesy; and then in Part 3 we will invite Philippe Weiss, Esq., Managing Director of Seyfarth Shaw at Work, to share his insights from the front lines and his thoughts on how organizations can credibly and effectively combat workplace sexual harassment.

’Tis the Season: Perhaps more than any other time, lawyers and laypeople alike are talking about sexual harassment.  Indeed, the country is in the midst of an important national conversation about such abuses of power and is trying to come to terms with what the despicable “me too” allegations say about our workplaces and our values.  We hope this conversation, the national headlines, social media campaigns, and watercooler conversations, shine a light on genuine misconduct that should be addressed.  But with the holiday season — and the holiday party season — upon us, this adds an extra layer of anxiety to the already wide range of “what could possibly go wrong” scenarios.

We recognize that this year, perhaps more than others, people may be on heightened alert for misconduct or have a lower threshold for what may be considered inappropriate work place conduct.  But Holiday parties also provide an important opportunity to build comradery, give thanks, show appreciation for your employees’ hard work throughout the year, and recognize past achievements. We don’t think you should scuttle these good intentions, but we do think a little advance planning can ease the process.  So, this week, we’re decking the halls with some blogs from the Ghost of Holiday Party’s past (such as Don’t Let Too Much Eggnog Ruin Your Office Holiday Party: Tips to Limit Employer Liability at Company Parties and Don’t Be Scrooged: Wage & Hour Tips To Help Employers Avoid Holiday Party Humbug) , in which our colleagues have sagely opined on how to spread holiday cheer without getting run over by a reindeer (or a charge of harassment).

Party Planning Tips to Consider:

  • Prior to the party, circulate a memo (or an email to all employees) reiterating your company’s policy against sexual and other forms of harassment.
  • Remind employees in that communication that the policy applies to their conduct at company parties and other social events, and they should act in a professional manner at all times.
  • Make attendance at the holiday party entirely voluntary and convey that message to employees with unwavering clarity.
  • Set a tone of moderation by reminding employees of the company’s policy against the abuse of alcohol and zero tolerance with respect to the possession, use, or sale of illegal drugs.
  • Consider limiting the amount of alcohol served and/or stop serving well before the party ends (and have lots of non-alcoholic alternatives).-
  • Have plenty of food, (and curb the concern that someone may be drinking on an empty stomach).
  • No mistletoe, no scantily clad elves, and no “bad Santa” (for all the obvious reasons)!
  • Remind managers to set a professional example, and designate several managers to be on the lookout for anyone who appears to be impaired or intoxicated.
  • Anticipate the need for alternative transportation and don’t allow employees who have been drinking heavily to drive home.

Post-Party Wrap-Up: Of course, if post-party concerns are raised, they should be addressed promptly (investigated if necessary), and, where applicable, dealt with consistent with other incidents of inappropriate conduct.  Remember, just because something happened “off campus” does not make it “off limits” from the Company’s standpoint.  Ensuring that your employees know you are going to respond to any allegation of misconduct sends a powerful message.

Once you’ve gotten past the holidays, and as you face 2018 with a clear head and renewed hope for the new year, it’s a good time to start thinking about whether your company needs to change its ways (like Scrooge after meeting the Ghost of Christmas Future) or to improve its employee communications (like Walter the Dad in Elf) or to be more inclusive (like Santa stopping at the Island of MisFit Toys).  And while making such changes can be challenging, think of the good that can come from them.

Next week, we’ll look at the importance of corporate culture in these times of heightened awareness.  Stay tuned.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Policies and Handbooks Team or the Labor & Employment Team.

By Scott Rabe, Sam Schwartz-Fenwick, and Marlin Duro

Seyfarth Synopsis: In the first case following the Department of Justice’s pronouncement that Title VII does not prohibit discrimination against transgender persons on the basis of gender identity, a court in the Western District of Oklahoma held that Title VII protects transgender individuals from discrimination. Tudor v. Se. Okla. State Univ., No. civ-15-324-C. (W.D. Okla. Oct. 26, 2017).

With the recent October 5, 2017 memorandum from the Department of Justice stating that Title VII does not prohibit discrimination against transgender persons, the legal landscape regarding Title VII’s protection of transgender individuals is very much in flux. The DOJ’s interpretation is a reversal of the DOJ’s interpretation under the Obama administration and also conflicts with the current interpretation of the EEOC, both of which interpret Title VII to prohibit discrimination on the basis of gender identity. U.S. Circuit courts are also split on the issue, meaning this issue is likely primed for resolution by the Supreme Court in the not too distant future.

The latest decision addressing this issue comes from Tudor v. Southeastern Oklahoma State University, a case from the Western District of Oklahoma in which Tudor, a transgender former professor at Southeastern Oklahoma State University, alleged among other things that she was harassed and discriminated against on the basis of her gender identity after she was denied tenure following her transition from male to female. The court in Tudor denied the university’s motion for summary judgment, finding that there were triable issues of fact with respect to each of Tudor’s claims. This decision is important because it shows that, despite the DOJ’s memorandum, courts are still willing to extend Title VII protections to transgender persons. It also provides helpful guidance to employers as they ponder how their own internal policies and procedures affect transgender employees.

Importantly, the court in Tudor rejected the University’s argument that Tudor was not entitled to protection under Title VII because “transgender” is not a protected class. The court, relying on its prior ruling on the issue, reiterated that Title VII’s prohibition of gender discrimination extended to transgender individuals to the extent they were discriminated against based on “gender non-conformity.” Specifically, Tudor had alleged that Defendant’s actions towards her occurred because she was female, yet Defendants regarded her as male.

The Court also denied the University’s motion for summary judgment on Tudor’s hostile work environment claim, finding that there was a triable issue of fact. In particular, the court highlighted Tudor’s evidence that for four years the University placed restrictions on what restroom she could use, how she could dress, what makeup she could wear, and that it used the wrong pronouns when referencing her. The Court found that these facts, if true, could be sufficient to establish a hostile work environment claim.

The Court also rejected the University’s Faragher/Ellerth defense, which can provide a complete defense to an employer that has non-discrimination and non-harassment policies in place but where an employee fails to take advantage of those procedures. Here, the court explained that the defense would not apply because the University’s sexual harassment and sex discrimination policies did not contain specific language regarding protections for transgender employees.

Even though the law in this area remains uncertain, there is much for employers to glean from the Tudor case. First, it is clear that the DOJ’s recent memorandum has not resolved the question of whether Title VII protects transgender employers on the basis of gender identity. Therefore, employers should be vigilant in establishing and maintaining non-discrimination and anti-harassment policies that extend protections to individuals on the basis of gender identity. This will help ensure that employers stay compliant with federal (and applicable state and local) laws, and it also preserves a potential Faragher/Ellerth defense to a hostile work environment claim. Employers should also be mindful of the unique conduct that may be considered harassing in nature to transgender employees. For example, Tudor demonstrates that denying employees access to their bathroom of choice, enacting strict gender normative dress codes, and refusing to use preferred pronouns may all contribute to a hostile work environment. Thus, employers should update their anti-harassment policies and trainings to include examples that address some of the unique scenarios affecting transgender employees.

As always, we invite employers to reach out to their Seyfarth contact for solutions and recommendations regarding anti-harassment and EEO policies and addressing compliance with LGBT issues in the law.