Foley & Lardner Labor and Employment Law Weekly Update (Week of March 27, 2012)

California Considers Joining Small but Significant Trend Toward Prohibiting Discrimination Against Unemployed Job Applicants
Written by: Jeremy Wooden

The California assembly recently continued a trend of federal and state legislatures seeking to prohibit discrimination against unemployed job applicants. Later this month, the California assembly will consider passage of a bill that would prohibit discriminating against an employee on the basis of his or her status as unemployed, and it also would prohibit publishing job advertisements that exclude the unemployed from submitting job applications.

California's proposal comes on the heels of two similar provisions that were proposed (but not passed) in President Obama's September 2011 American Jobs Act and the House of Representatives' July 2011 Fair Employment Opportunity Act. Each of these federal proposals, if enacted, would have prohibited job-status discrimination as well as publishing job advertisements that exclude or discourage the unemployed from seeking employment. The administration sought public comment for these proposals in February 2011, when experts opined to the EEOC that employment status is a weak indicator of future job performance and that job-status discrimination disproportionately impacts minorities and the disabled. February 16, 2011 EEOC Press Release.

Other states have enacted legislation similar to that now being considered in California. Last month, Oregon's Legislature passed a law prohibiting job advertisements that include language suggesting that the unemployed need not apply. New Jersey passed a similar law in 2011, although it created a limited exception for those employers who were seeking applicants from current employees, but otherwise implemented a broad ban on job-status discrimination as well as advertisements stating that current employment is a job qualification or currently unemployed applicants will not be considered.

These measures and proposed measures are a reminder that job application and screening processes have come under intense scrutiny in recent years. Employers should remain cognizant of this ever-shifting statutory environment where anti-discrimination measures are being proposed on an intermittent basis in Congress and, outside of Congress, on a state-by-state basis. These measures differ in several key respects, including breadth of coverage, remedies, and defenses and exceptions available to employers.

Transgender Employees Also Protected From Sex-Based Discrimination
Written by: Nan Chen

Most employers have policies related to sex-based discrimination and conduct harassment trainings or sensitivity workshops based on traditional gender roles, but a new case highlights the need to consider transgender employees. Although there is no federal law explicitly prohibiting discrimination against transgender persons in employment, a transgender employee successfully sued her employer for discrimination on the basis of her gender non-conformity.

The Eleventh Circuit federal court ruled in Glenn v. Brumby that transgender employees may invoke federal constitutional protections against sex-based discrimination based on gender non-conformity. In the case, the employee was born a biological male, but was diagnosed with gender identity disorder. She was hired by her employer while still a male and later told her direct supervisor she was taking steps to become a woman. Shortly thereafter, the employee was terminated, allegedly because the employee's "gender transition was inappropriate, that it would be disruptive, that some people would view it as a moral issue, and that it would make [the employee's] coworkers uncomfortable." The employee then sued her employer.

The employee argued that the employer terminated her based on her transsexual gender and that this constituted sex discrimination. The Eleventh Circuit court ruled in the employee's favor and held that people, whether transgender or not, are protected from discrimination on the basis of "gender stereotype." Therefore, the employer "violated the Equal Protection Clause's prohibition of sex-based discrimination when [he] fire[d] a transgender or transsexual employee because of his gender non-conformity."

While the Eleventh Circuit's ruling on the Equal Protection Clause currently only applies to governmental employees, private employers should be wary of discrimination against transgender employees. The ruling also referenced and analogized discrimination under Title VII of the Civil Rights Act, which does apply to private employers, and the favorable language may be used in private employer suits.

Thus, all employers private and public should be vigilant about their employment practices and policies with regard to discrimination, whether based on gender or gender non-conformity. If you do not currently include transgender employees in your list of protected categories in your EEO and no-harassment policies, you are falling behind.

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