Let’s Talk About Sex: U.S. Department of Labor Targets Transgender & Gender Identity Discrimination

On Tuesday, August 19, 2014, the U.S. Department of Labor issued a directive to “clarify that existing agency guidance on discrimination on the basis of sex . . . includes discrimination on the bases of gender identity and transgender status.”  This directive follows President Obama’s Executive Order 13672, issued on July 21, 2014, amending existing orders to specifically prohibit federal contractors from discriminating based on gender identity.

Read More

Sixth Circuit Reverses Cintas Pattern-or-Practice Case

Last week, the Sixth Circuit Court of Appeals reversed summary judgment orders in a Title VII sex discrimination case against Cintas Corporation, holding that the EEOC (the intervening plaintiff) should have been allowed to pursue a pattern-or-practice claim under §706 of Title VII using the analytical framework set forth in Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977). The decision rejects the notion that the Teamsters framework can only be used in cases brought under § 707 of Title VII, paving the way for the EEOC to pursue pattern-and-practice claims under § 706, which allows for the recovery of punitive and compensatory damages.

In Serrano et al. v. Cintas Corp., the EEOC challenged hiring practices used for women who applied to work as truck-driving sales representatives in Michigan. The district court dismissed the EEOC’s pattern-or-practice claim on the grounds that the agency pled the claim under § 706 rather than § 707, which provides specific authorization for such claims. The district court also granted summary judgment for Cintas on thirteen individual claims that the EEOC had pursued, analyzing them under the McDonnell-Douglas framework. Read More

Narrowed Dukes v. Wal-Mart Class Survives Motion to Dismiss

The ongoing saga of the more than decade-old sex discrimination class action against Wal-Mart (Dukes v. Wal-Mart) will continue after the federal district court handling the case allowed plaintiffs’ fourth amended complaint to survive a motion to dismiss in a ruling on September 21, 2012. In June of last year, the Supreme Court rejected the plaintiffs’ attempt to bring a nationwide class action against Wal-Mart, holding that the plaintiffs failed to satisfy Federal Rule of Civil Procedure 23(a) because they could not show sufficient commonality between the almost 1.5 million members of the class and reversing class certification. In response, the plaintiffs filed a fourth amended complaint in district court, narrowing their proposed class to several hundred thousand female Wal-Mart employees in four regions of California. Wal-Mart subsequently filed a motion to dismiss the new complaint, arguing (among other things) that it suffered from the same commonality problems as the class rejected by the Supreme Court.

The district court handling the case rejected Wal-Mart’s argument, finding that the Supreme Court took issue with plaintiffs’ evidence, not necessarily their theories and that plaintiffs should therefore have the opportunity to present evidence to demonstrate commonality among the new class members at the class certification stage. In particular, the district court noted that plaintiffs’ new complaint alleged that they could provide class-wide proof of a “culture and philosophy of gender bias shared by the relevant decision-makers,” citing to allegedly gender-biased comments made at management training meetings. The district court found that this allegation allowed the complaint to survive a motion to dismiss, while noting that the plaintiffs “still must prove that every decision-maker in the group—perhaps four hundred or so…operated under a common policy or mode of decision-making” to obtain class certification. So, although the district court found that plaintiffs’ theories do not fail as a matter of law, whether or not they will actually be successful in a renewed attempt at class certification is a different question entirely. For now, we will all have to wait to find out if the nation’s once largest sex discrimination class action can survive under the Supreme Court’s latest class certification ruling.

EEOC: Gender Identity Discrimination Covered by Title VII

In a decision issued April 23, 2012, the EEOC held that gender-identity discrimination-or discrimination against transgender individuals because they are transgender-constitutes sex discrimination under Title VII. This decision builds on the Supreme Court’s decision in Price Waterhouse v. Hopkins in 1989, which held that the prohibition against sex discrimination includes protection for people who do not conform to gender stereotypes. The EEOC also held that, even if stereotyping was not involved, an employment decision made on the basis of the fact that an employee had a change of sex would be considered sex discrimination under the law. Since transgender employees report facing workplace discrimination at high levels, this decision, coupled with an increasing number of states that now include sexual identity as a protected category under their anti-discrimination statutes, may spark an increase in claims brought on this basis.