By Heather R. Falks, Deputy General Counsel • Office of General Counsel
While more prevalent today, discussions about gender and sexual identity can still feel uncomfortable for some. But there is no need to shy away from becoming educated on recent developments in the law related to gender identity and sexual orientation. These developments make clear the responsibilities of judges and how they interact with their employees and the public they serve.
Bostock v. Clayton County, Georgia
Two years ago, the Supreme Court made a landmark decision in Bostock v. Clayton County, Georgia, holding that Title VII protects transgender and homosexual employees from discrimination and termination. 140 S.Ct. 1731 (2020).
An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
Id. at 1734. The Bostock decision requires employers to adjust their perception of what constitutes discrimination on the basis of sex.
The Department of Labor (DOL) issued guidance for employers titled “Policies on Gender Identity: Rights and Responsibilities,” and in this guidance the DOL defines several key terms. Definitions are important because they help facilitate communication and understanding. Having a greater understanding of these definitions will help prevent future sex and gender discrimination in violation of Title VII.
Know these terms
Sex v. Gender
“Sex (i.e., male, female, or intersex) is assigned at birth based on a combination of a baby’s biological characteristics, including chromosomes, hormones, and reproductive organs, and is originally documented on a person’s birth certificate. The World Health Organization defines gender as the ‘socially constructed roles, behaviors, activities, and attributes that a given society considers appropriate’ based on sex.”
Gender identity
“A person’s internal sense of being male, female, or something else such as agender, binary gender, gender fluid, gender nonconforming, genderqueer, or nonbinary. Since gender identity is internal, one’s gender identity is not necessarily visible to others. All people have a gender identity.”
Gender expression
“How a person represents or expresses one’s gender identity to others, often through behavior, clothing, hairstyles, voice, or body characteristics. All people have a gender expression.”
Sexual orientation
“A person’s identity in relation to whom they are attracted to. All people have a sexual orientation. Sexual orientation, gender identity, and gender expression are distinct components of a person’s identity. Sexual orientation should not be confused with a person’s gender identity or gender expression.”
Transgender
“A broad term for people whose gender identity or expression is different from those typically associated with their sex assigned at birth. ‘Trans’ is shorthand for ‘transgender.’ Note: Transgender is correctly used as an adjective, for example: ‘transgender people,’ ‘people who are transgender,’ etc. however, ‘transgenders’ or ‘transgendered’ are incorrect and disrespectful.”
The Civil Rights Act
Prior to the Bostock decision, judges and court employees could not discriminate against anyone on the basis of sex, gender, or sexual orientation due to the ethical requirements of Rule 2.3(B) in the Code of Judicial Conduct. The Bostock decision reinforces those ethical requirements for courts as employers and gives individual employees a remedy for discrimination under Title VII.
Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate against an employee on the basis of race, color, national origin, sex (including pregnancy, sexual orientation, and gender identity) or religion. 42 U.S.C. 2000e -2(a)(1). In Bostock, the Supreme Court made the following finding:
Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII.
Bostock, 140 S.Ct. 1731 at 1734. The court reasons that when an employer discriminates against an employee who is homosexual or transgender then the employer “inescapably intends to rely on sex in its decision making.” Id.
There are some common missteps made by employers that could lead to harassment and discrimination in violation of Title VII. Employers can and should improve their work environment for all employees and avoid sex discrimination by training employees, putting policies in place and modeling appropriate behavior.
Discrimination
An employer cannot refuse to hire, terminate, or take assignments away from an employee based upon their sex or gender. Employers cannot segregate employees based upon actual or perceived customer preferences, nor can an employer ostracize an employee due to sex or gender. An employer cannot take any negative employment action against an employee because they are homosexual or transgender.
Bathroom access is a health and safety issue. Refusal to allow an employee to use the bathroom consistent with their gender identity is discrimination because it singles them out due to their gender identity. The Occupational Safety and Health Administration (OSHA) has issued “A Guide to Restroom Access for Transgender Workers” and in this guidance, OSHA states: “[b]athroom restrictions can result in employees avoiding using restrooms entirely while at work, which can lead to potentially serious physical injury or illness.”
Employees should be permitted to determine the most appropriate and safest bathroom option for themselves. It is recommended that employers have options for employees to choose from such as single occupancy gender neutral bathrooms and/or use of multiple occupant bathrooms with lockable single occupant stalls. According to OSHA, all employers, regardless of physical layout in the workplace, need to find solutions that are safe, convenient and respectful for transgender employees.
Harassment
An employer cannot allow harassment or a hostile work environment to occur due to an employee’s sex or gender. An employer cannot allow an employee to be harassed by coworkers or customers due to their sex or gender. Offensive and derogatory remarks about homosexual or transgender individuals cannot be permitted.
Persistent and intentional misuse of an employee’s name or pronouns is harassment and discrimination on the basis of sex and creates a hostile work environment. If an employee has specified how they would like to be referred to, then the employer and coworkers should act in a respectful manner and make every effort to comply with that request. It is unacceptable to refer to a person as “it.”
Mistakes will happen, but those mistakes should be corrected and should be infrequent. If an employer intentionally refuses to use the name and/or pronouns requested by an employee, the employer’s decision is based upon stereotypes and social norms associated with sex, thereby, demonstrating discrimination and engaging in harassment due to the employee’s sex in violation of Title VII.
Transitioning during employment
An employee may decide to begin gender transition during the course of current employment. If this occurs, employers should be aware of best practices when an employee is transitioning. The process of transitioning is private and should be treated as a private medical situation.
All information obtained from the employee—including medical information—should be maintained in confidential files, and the information should not be shared with others in the workplace. Gossip is inappropriate. The treatments that an individual undergoes during the transition process may qualify them for protections under the Family Medical Leave Act (FMLA), therefore, employers should make sure that these employees are notified of their rights under FMLA.
A transitioning employee may decide to change their name. All employees should be referred to by the name of their choosing. Refusal to refer to an employee in the manner they request may be considered harassment or discrimination. Repeated reference to an individual’s former name (a.k.a. deadname) could result in a hostile work environment in violation of Title VII. Employers must make every effort to maintain a work environment of respect.
Name changes during employment may require changes to the employment file so that the records accurately reflect the employee’s name—similar to what occurs when an individual changes their name after marriage. If the employee has not undergone a legal name change, then name changes within the employment file should only be made to items that do not have any legal or security implications, such as employee directories, business cards, name tags, and email accounts.
Questions may arise from coworkers due to name changes and changes in appearance. It is important to discuss with the transitioning employee their preference for communicating their name changes to coworkers and how they would prefer that communication be handled. Employees should be reminded of their ethical obligations under the Code of Judicial Conduct to behave in a respectful non-discriminatory manner.
Employees are not asked to change their own personal beliefs and values, but their behavior in the workplace must conform with the requirements of the Code of Judicial Conduct. Management must immediately address any discriminatory comments or harassing behaviors.
Justice system participants
The justice system interacts with the entire diverse population. Judges are the leaders and set the tone for diversity and respect in their domains. It is important to lead by example by using proper pronouns and being inclusive in the language used to address litigants.
Refer to litigants by the names and pronouns that they dictate. In cases that involve children who have two parents of the same sex/gender, then inquire from the parents about how the children refer to them and use the terms that the children do. Refusing to use the name and pronouns requested by a litigant is discriminatory and may demonstrate bias in violation of the Code of Judicial Conduct.
Courts are responsible for management of probation departments. Probation departments are responsible for conducting searches and drug testing. It is customary to assign probation officers by sex for drug testing observation and body searches. For example, a female probation officer would observe the drug screens for female probationers, and this practice is generally acceptable. However, all probation officers should be trained on cross-gender searches and drug screening because if a transgender probationer requests that an officer of a certain sex observe them, then that request should be honored.
The Prison Rape Elimination Act requires that staff be trained in how to conduct cross-gender searches in a professional and respectful manner that is consistent with security needs. 28 C.F.R. 115.215. Transgender probationers may feel safer with individuals of a particular sex and the safety concerns of a probationer should be taken seriously; every attempt to accommodate the request should be made.
Create a culture that upholds the law
The Bostock decision makes it clear that employers will face liability under Title VII for making negative employment decisions based upon an employee’s sexual orientation or transgender status. The Code of Judicial Conduct has always required judges to perform their duties without bias or prejudice. Discrimination on the basis of sex or gender is never acceptable. Courts as employers should strive to create an environment of respect that is consistent with the values contained in the Code of Judicial Conduct.