California Public Agency Labor and Employment Blog - Useful Information for Navigating Legal Challenges

This year, in the case of Macy v. Holder, Appeal No. 0120120821 (EEOC Apr. 20, 2012), the U.S. Equal Employment Opportunity Commission (EEOC) ruled that transgendered persons are afforded protection from discrimination under Title VII of the Civil Rights Act of 1964 (Title VII).

Mia Macy, a transgender police detective in Phoenix, Arizona presented as a man when she applied for a position at the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) at its Walnut Creek crime laboratory. During the background check, she told the background investigator that she was in the process of transitioning from male to female. Shortly thereafter, ATF told her that due to federal budget reductions, the position at Walnut Creek was eliminated.

Macy approached an ATF Equal Employment Opportunity (EEO) counselor about her concerns pertaining to the elimination of the position.  The EEO counselor informed Macy that the position had not been eliminated, but that ATF instead hired another applicant who had been farther along in the background investigation.

Macy believed she was denied the position because she told the background investigator that she was in the process of transitioning from male to female.  Macy filed a complaint with the ATF and alleged that she was discriminated because of “sex, gender identity (i.e., transgender woman) and on the basis of sex stereotyping.” The ATF classified Macy’s complaint as one based on sexual orientation and gender identity, and not as sex discrimination.  As a consequence of ATF’s treatment of the complaint, under the Department of Justice’s rules, the EEOC had no jurisdiction over the complaint.  Macy appealed this complaint-processing decision to the EEOC.  The EEOC ruled in Macy’s favor.

In reaching its decision, the EEOC analyzed federal cases that have recognized that claims of discrimination based on gender identity stereotyping are covered under Title VII.  The EEOC found that Title VII’s protections against sex discrimination include gender discrimination in addition to discrimination on the basis of biological sex.  The protections encompassed “the cultural and social aspects associated with masculinity and femininity.”  The EEOC ruled that a transgender person who experiences discrimination based on gender identity may establish a prima facie case of sex discrimination through any number of different formulations (gender stereotyping, gender identity, etc.), which are all “simply different ways of describing sex discrimination.”  The EEOC also noted that applying Title VII to transgender individuals does not create a new “class” of protected individuals because discrimination against a transgender individual is, by definition, discrimination based on sex and therefore in violation of Title VII.

It is noteworthy that in recent years, some federal courts had already interpreted Title VII to protect transgender individuals against discrimination.  Although  Congress has not addressed the issue, in 2011 the California Legislature passed AB 887 which expressly states that the Fair Employment and Housing Act (“FEHA”) prohibits discrimination on the basis of gender, gender identity and gender expression.  Accordingly, in California, FEHA expressly prohibits transgender discrimination and harassment.

Training is advisable to ensure that supervisors and non-supervisory staff alike understand what it means to be transgender, and to ensure all employees enjoy a work environment free of discrimination or harassment. 

This guest post was authored by Peter J. Brown and Connie C. Almond 

In Marken v. Santa Monica Unified School District, a School District investigated a complaint that a high school teacher had sexually harassed a 13 year old student.  The District determined that the teacher had violated the sexual harassment policy and issued him a reprimand.  The California Court of Appeal recently held that, upon request and despite the teacher’s objection, the District had to release the investigation report and reprimand.  

The California Public Records Act (CPRA) generally gives the public the right to inspect any public record.  But the CPRA exempts from disclosure “personnel, medical, or similar files the disclosure of which would constitute an unwarranted invasion of personal privacy.”  The Court held that, although the teacher had a significant privacy interest over the requested documents, there is no unlawful invasion of privacy if the invasion is justified by a competing interest – strong public policy supporting transparency in government. 

The Court stated that a complaint of misconduct which is upheld by the agency or results in discipline must be disclosed.  If the complaint is not sustained, it is still subject to disclosure if it is of substantial nature and there is reasonable cause to believe the complaint is well founded.  Although the teacher did not occupy a high profile position, that factor is only relevant to determine when accusations of misconduct should be disclosed even if not well founded.  The Court ordered the agency to disclose the investigation report and the reprimand with the names and personal information of the student and the witnesses redacted. 

When Should an Agency Disclose Personnel Records 

Prior cases involving CPRA requests for personnel records involved more extreme cases where the complaint involved violence and sexual abuse, or a high profile public official.  But this case clarifies that if a charge of misconduct results in employee discipline, even minor discipline, the complaint must be disclosed upon request.  

If a complaint is not sustained, determining whether it is subject to disclosure is a bit more fact intensive.  The agency will have to assess the reliability of the information and whether there is sufficient support for the charge of misconduct, even if not enough for a sustained finding.  The agency should assess the source of the information, the availability and credibility of any corroborating evidence, the subject employee’s own statements, and each party’s likely motives. 

How Will This Case Impact Your Agency? 

This case, which followed two previous cases on the same topic, carves out a fairly significant exception to the CPRA which, for many, seems counterintuitive.  Most public employees would not expect any of their disciplinary documents or investigations into their alleged misconduct to show up in a newspaper.  This case requires that all public agencies carefully evaluate any requests for such documents and if necessary seek legal counsel on whether the documents requested must be released.  This case is not limited to school district employees.  With the exception of police officer personnel records which are subject to some additional protection under the law, this case and the cases which have preceded it could require your agency to release such documents.  

This guest post was authored by Meredith Karasch

We have all heard about the scandal at Penn State that brought down college football royalty.  We cringe at what happened (or didn’t happen).  We agree there was a moral obligation to report child abuse.  However, moral obligation aside, all public and private entities need to know that, if this situation occurred in California, anyone who failed to report suspected child abuse may not only be out of a job.  They would be prosecuted. 

I know what you are thinking; “This doesn’t apply to us, we are not a school.”   Maybe you are not even a public agency.  Please keep reading.  All public and private entities must know that everyone who works with minors is required to report any suspicion of child abuse when they learn of it “within the scope of his or her employment.”    

The California Penal Code contains provisions detailing who are mandated reporters in the Child Abuse and Neglect Reporting Act.  You may be surprised about the scope of those who are “mandated reporters.”  The list includes far more than teachers and other school district employees.  Here is a partial list:

• An administrator of a public or private day camp;
• An administrator or employee of a public or private youth center, youth recreation program, or youth organization;
• An administrator or employee of a public or private organization whose duties require direct contact and supervision of children;
• Any employee of a county office of education or the State Department of Education, whose duties bring the employee into contact with children on a regular basis;
• A public assistance worker;
• A peace officer or police department employee;
• A non-volunteer firefighter;
• A physician, surgeon, psychiatrist, psychologist, dentist, resident, intern, podiatrist, chiropractor, licensed nurse, dental hygienist, or optometrist;
• An EMT or paramedic;
• A coroner or medical examiner;
• A commercial film and photographic print processor;
• An animal control officer;
• A clergy member.

In order to trigger the duty to report, a mandated reporter must actually know or have an objectively reasonable suspicion that abuse or neglect has occurred.  A mandated reporter must make a telephone report to a child protective agency immediately and follow up with a written report in 36 hours.  Reporting to a supervisor does not satisfy the reporter’s duty.  People who report suspected abuse generally have immunity from liability.  On the other hand, a mandated reporter who fails to report an incident of suspected child abuse “is guilty of a misdemeanor punishable by up to six months confinement in a county jail or by a fine of $1,000 or both.” 

We would like to use this as a teachable moment:  this situation, and the abuse itself, might have been prevented if everyone who was a witness or heard suspicions from a witness knew exactly what to do.  All entities should train their mandated reporters regarding their duties, as well as the procedures they must follow to fulfill those duties.  

A California Court of Appeal recently ruled there has to be evidence of sexual desire where someone is complaining of sexual harassment at work by a member of the same sex. This is contrary to other cases that hold that no sexual desire is necessary. Additionally, consideration of whether the perpetrator had a sexual desire toward the target is not part of the analysis in harassment complaints against the opposite sex. 

In Kelley v. The Conco Companies, Patrick Kelley was hired as an apprentice ironworker at Conco, a construction company.  A few days after he started his employment, he was exposed to multiple violent, offensive and sexually explicit comments that were directed at him.  David Seaman, his supervisor, and another co-worker made various threats about forcing sexual acts on Kelly. Kelley complained to the job site's Field Safety Manager.  However, the behavior toward Kelley worsened, even after he was assigned to a different job site.  Kelley continued to complain to supervisors and was essentially told that there was nothing they could do for him. 

Kelley sued Conco for, among other things, sexual harassment in violation of the Fair Employment and Housing Act (FEHA).  The court considered whether extremely violent and sexually explicit comments made by a male supervisor to a male subordinate employee were sufficient to establish sexual harassment.  The court held that Kelley could not pursue his sexual harassment claim without evidence that Seaman was motivated by sexual interest in Kelley.  There was no evidence, however, to conclude that Seaman made an expression of actual sexual desire or intent, or that Seaman was motivated by Kelley's actual or perceived sexual orientation.

Although the Kelley decision may be used as a defense in the event of litigation against same sex harassment (i.e., to argue that there can be no claim for sexual harassment unless there is evidence of sexual desire), public agencies can better avoid the cost of lawsuits and risk of liability by implementing and enforcing a zero tolerance harassment policy, without regard to whether the perpetrator harbored any sexual desire for the target of the harassment.  While some harassing behavior may not be sufficiently severe or pervasive to violate the law, it can result in increased costs to the employer and a toll on the employees due to disruption in the workplace, turnover, loss of productivity, absenteeism, and low morale.

There are a couple of significant benefits to the zero tolerance approach.  For example, prohibiting inappropriate behavior allows a public agency the opportunity to take corrective action at an early stage, thus preventing more severe and potentially unlawful conduct from  developing.  In addition, an employer can find that an employee has violated its policy without inadvertently admitting that the conduct violated the law.

The Kelley decision represents a substantial departure from the previous case law relating to sexual harassment complaints against members of the same sex.  It remains to be seen how broad of an application and what kind of impact the Kelley decision will have.  In the meantime, public agencies should continue to adopt and enforce zero tolerance policies with the aim of maintaining harmonious work environments, and preventing liability and litigation.

The Supreme Court’s recent ruling in Thompson v. North American Stainless has caused some commentators to sound the alarm warning employers of employee friendly courts and impending lawsuits as a result of the decision.  Hans Bader of the Washington Examiner wrote that the Thompson decision shows the Supreme Court is not pro-business.  Tim Gould of the website HRMorning.com warns that the decision will result in increased employer exposure to retaliation lawsuits.  However, for California employers, the ruling represents just another pro-employee decision which is part of doing business in California’s pro-employee environment.

In Thompson, Miriam Regalado and her fiancé Eric Thompson were employees of North American Stainless (NAS).  Regalado filed a charge alleging sex discrimination against NAS with the Equal Opportunity Commission (EEOC) which, in turn, notified NAS of the complaint in February 2003.  Within weeks of learning of the charge, NAS fired Thompson.  Following his termination, Thompson filed his own EEOC charge and sued NAS under Title VII of the Civil Rights Act of 1964 claiming the company fired him to retaliate against Regalado for filing her EEOC charge.  Both the District Court and the U.S. Court of Appeals affirmed the dismissal of Thompson’s Title VII claim on the ground that the law does not permit third party retaliation claims.  The Supreme Court reversed the Court of Appeals’ decision on the ground that NAS’s firing of Thompson was retaliatory and that he could sue NAS for violation of Title VII. 

The Court reasoned that the purpose of Title VII’s anti-retaliation provision is to prohibit any employer action that might dissuade a reasonable worker from making or supporting a discrimination charge.  Thus, the Court thought “it obvious” that a reasonable worker might be dissuaded from filing a complaint against her employer if she knew her fiancé would be fired.  Although the Court declined to identify “a fixed class of relationships” for which third party reprisals are unlawful, it indicated that a close family member who is fired will “almost always” be able to assert a claim under Title VII while a “mere acquaintance” will “almost never” be able to do so.  The Court also reasoned that Thompson was a “person aggrieved” for standing purposes because he fell within the “zone of interests” protected by Title VII.  Thompson was an employee of NAS, and the purpose of Title VII is to protect employees from their employers’ unlawful actions.  Finally, the Court found Thompson was not an accidental victim of retaliation.  Rather, NAS intentionally fired him in order to punish Regalado for filing her EEOC charge. 

While the Thompson decision is significant and will undoubtedly spawn more lawsuits nationwide, employment claims by third parties are not an entirely new concept in California.  Government Code section 12926(m), part of California’s Fair Labor and Employment Act (FEHA), already gives employees the ability to sue their employers over adverse actions taken against them because of their association with “another person” in a protected class (e.g. race, marital status, sex).  However, it remains to be seen whether this FEHA provision would provide a basis for a claim such as the one asserted by Thompson.  Thus, employers should make sure that the harassment training provided to employees, supervisors and managers includes a discussion which educates them on the possibility of third party employment claims.  Employers should also consider revising existing anti-harassment policies to explicitly prohibit discrimination, harassment and retaliation against an employee who associates with a person, including another co-worker, in a protected class.  

Two headline making lawsuits ignited a national debate over whether it should be illegal for an employer to make employment decisions based on an employee’s appearance.  The Wall Street Journal reported that Cassandra Marie Smith filed a lawsuit against her former employer, Hooters, alleging that restaurant management told her during a performance evaluation to join a gym in order to “lose weight and improve her looks so that she would better” fit into the uniform she was required to wear.  Smith also claims she was required to sign an agreement placing her on “weight probation” as a condition of staying employed.

Within weeks, Debrahlee Lorenzana made headlines across the country for suing her former employer, Citigroup, for firing her for being “too attractive.”  Lorenzana alleges she was fired after complaining about comments made by male managers telling her to refrain from wearing clothing that accentuated her curvaceous figure because it distracted her male colleagues.  Lorenzana also alleges that, when she pointed out that some co-workers wore more revealing clothes than she, a manager told her “your body is very different from them” and “it’s OK for them to dress like that” because they “are short or fat.”

Discrimination lawsuits based on appearance are not new in California.  For example, in Cassita v. Community Foods, Inc., a female applicant claimed she was not hired for a job because she was overweight.  However, since California has no law prohibiting discrimination based on weight, the applicant sued under a disability discrimination theory and lost because she had no evidence her weight was the result of a physiological condition or disorder.  Perhaps if California had a specific anti-discrimination law targeting appearance and weight, the outcome in Cassita might have been different.  The State of Michigan (where the Hooters lawsuit was filed), City of Santa Cruz, and City of San Francisco currently have anti-weight discrimination laws. 

The Hooters and Citibank lawsuits should serve as a reminder to employers that bias may arise from an unconscious reaction to an applicant’s or employee’s appearance.  Employers should also remain vigilant in preventing workplace harassment, discrimination and retaliation.  Employees, particularly supervisors and managers, should be trained regularly on how to avoid discrimination and harassment.  Finally, all applicants and employees should be treated equally and employment decisions should be based on the person’s qualifications and individual merits without regard to their physical appearance or any other protected status.