Friday, October 10, 2014

Upcoming webcast on transgender employment discrimination claims

Upcoming webcast on transgender employment discrimination claims 

 I am doing a continuing legal education webcast for on transgender employment discrimination claims on Monday, October 13, 2014. The video will also be available afterwards.

 Go to for details.

 Here is the blurb from Lawline:

 Join attorney, professor, and consultant Jillian Weiss as she examines the legal framework for gender identity-based employment claims.

 Gender identity-based employment claims comprise a relatively new area of the law of employment discrimination. Starting in the late 1990’s, courts and legislatures have increasingly recognized that discrimination based on transgender identity is inappropriate. Court opinions interpreting sex discrimination and disability statutes have found sources of protection. Legislatures have included “gender identity or expression” and similar formulations as protected classes. The United States Equal Employment Opportunity Commission has ruled that such discrimination is sex discrimination.    
In this program, Ms. Weiss will also describe some ethical considerations for those representing transgender clients or defending against their employment discrimination claims.

 Learning Objectives:

I. Understand transgender identity
II. Interpret laws protecting gender identity
III. Address ethical considerations for transgender issues

Sunday, September 28, 2014

Lakeland woman part of historic transgender civil rights lawsuit

Lakeland woman part of historic transgender civil rights lawsuit

My client, Brandi Branson, is part of an historic lawsuit filed by the United States Equal Employment Opportunity Commission. The EEOC has for the first time filed a lawsuit in federal court alleging discrimination based on transgender identity. (Note: I have notified the station of the proper usage of "transgender," rather than "transgendered." I also notified the reporter of the impropriety of using a transgender person's birth name, but the EEOC did put it in the complaint, so it is now public information.)

 Here is the coverage from Tampa Bay's Fox 13.

  FOX 13 News

 LAKELAND (FOX 13) - A Lakeland woman is filing an historic lawsuit, saying she was wrongly fired after her employer found out she was transitioning from male to female.

 It's the first time the federal government is suing on behalf of a transgender person who says their civil rights were violated in the workplace.

 Brandi Branson is one of the plaintiffs. She used to fit people for hearing aids, and she loved it. "It was really a heartfelt thing, to be able to assist people to have a higher quality of life," Branson said of her job. In July of 2010, her name was "Michael." Michael was hired by Dr. Kevin Dorsett's Lakeland Eye Clinic to be his first director of hearing services. The next February, she took the name “Brandi” and started showing up for work in women's clothing and makeup. "I would get the snickers and rolled eyes," she said. She says her boss confronted her and patient referrals stopped coming. 
Within two months, she says she was told her position was being eliminated.

 "The emotional impact was deep, because I was a veteran at doing what I did, worked at this for over 30 years, and suddenly I was found to be useless,"

Branson said. Weeks later, she says they hired someone new for the same job. Attorney Jillian Weiss agreed to go after Lakeland Eye Clinic.

 "Transgendered people have been hidden from public consciousness because of prejudice,"

Weiss said. Weiss says the federal government's Equal Employment Opportunity Commission agreed to make Brandi's one of two cases filed this month on behalf of transgendered people who were fired.
“They have been seen as strangers to the law, often being without the legal protection the rest of us take for granted,"

Weiss said. The 1964 Civil Rights Act bars gender discrimination. Weiss says that includes transgendered people. Branson says she is being so public about something so personal, to stop this from happening to someone else.

 "I have had to deal with things I never dreamed of,"

said Branson.

"Whether or not somebody determines I am a hero or not is up to them. I am doing what I think is the right thing to do."

 She is suing for unspecified damages, but hopes it includes any back and future pay. Lakeland Eye Clinic declined an opportunity to comment.

 Original URL

Friday, September 19, 2014

Judge Backs EEOC’s Right to Investigate Companywide Policy

Here is an interesting press release from the EEOC.  Often, employers resist the idea that they should have to show what their policy has been company-wide. They want to restrict the documentation to the specific incident involved. If they can get away with it, it can make the employee's case harder to prove. 

In this case, the federal court backed up the EEOC in asking for three years of documentation regarding their implementation of the policy. 

Based on Applicant's Allegation That Company Required Unlawful Pre-Offer Health Questionnaire
TAMPA, Fla. - A federal court has ordered KB Staffing, Inc., a staffing firm servicing central Florida, to comply with an administrative subpoena issued by the U.S. Equal Employ­ment Opportunity Commission (EEOC), the agency announced today.  The subpoena, issued in December 2013, seeks informa­tion pertaining to a charge filed with the agency alleging that KB Staffing discriminated against current and prospective applicants for employment and/or employees because of improper health questionnaires.

The EEOC's litigation is based on the company's refusal to comply with a subpoena issued during the course of an investigation. The charge alleged that a job applicant was not hired for a position with KB Staffing because she refused to complete a pre-offer health questionnaire.  Based on that, the EEOC charged the company with violating the Americans With Disabilities Act (ADA).  KB Staffing argued that the EEOC's subpoena exceeded the scope of the charge and that the request for three years' worth of documents was too broad.

The court rejected KB Staffing's arguments, finding that the subpoena issued by the EEOC was within the agency's authority and was relevant to the charge.  U.S. Magistrate Judge Anthony E. Porcelli wrote the recommendation, which was adopted in its entirety by U.S. District Court Judge James S. Moody, Jr. on September 16, 2014.

"EEOC maintains the authority to investigate whether KB Staffing engaged in systemic discrimination when it used a pre-offer health questionnaire during its application process, despite the victim-specific relief it could pursue on the Charging Party's behalf and despite KB Staffing's assertion that it ceased use of the health questionnaire as of December 2012," the judge wrote (EEOC v. KB Staffing, LLC, No. 8:14-mc-41 (M.D.Fla. Aug. 28, 2014) (Report and Recommendation, A. Porcelli, M.J.).

The EEOC subpoena enforcement action was litigated by Supervisory Trial Attorney Kimberly A. Cruz and Trial Attorney Aarrin Golson, and the administrative investigation is being managed by Tampa Field Director Georgia Marchbanks.

"Systemic investigations are important to all charges handled by the EEOC, and the use of subpoenas is vital to carrying out those investigations" said Marchbanks. "We are pleased that the Magistrate and Judge gave us the go ahead to enforce our subpoena and continue our investigation."
Eliminating policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or that impede the EEOC's investigative or enforce­ment efforts, is one of six national priorities identified by the Commission's Strategic Enforcement Plan (SEP).

The EEOC is responsible for enforcing federal laws against employment discrimination. The Miami District Office's jurisdiction includes Florida, Puerto Rico and U.S. Virgin Islands. Further information is available at

Thursday, September 11, 2014

EEOC Challenges Overbroad Medical Releases In Lawsuit Against Cummins Power

An interesting release from the EEOC. Non job-related medical inquiries are prohibited under the Americans With Disabilities Act, as well as many state laws. Although gender identity disorders are excluded from the ADA as a disability (unless there is a physical cause), the prohibition on non-job related medical inquiries apply to everyone, regardless of disability. Thus, requests for medical and surgical status might very well be prohibited by the ADA and similar state laws.

EEOC Challenges Overbroad Medical Releases In Lawsuit Against Cummins Power Company Violated Two Federal Laws by Making Invasive and Irrelevant Inquiries Through Its Medical Releases, Federal Agency Charges 

MINNEAPOLIS - Shoreview, Minn.-based Cummins Power Generation violated federal law by requiring an employee to submit overbroad medical release forms to have a fitness for duty examination, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed today. In its lawsuit, the federal agency contended that Cummins required an employee to sign various medical release forms that sought irrelevant information.

Cummins informed the employee that he had to sign a release before taking a fitness-for-duty examination. When the employee objected to executing the releases presented to him, Cummins informed him that he had to sign a release or face termination. Cummins ultimately fired the employee for failing to sign the release, the EEOC said. The EEOC maintains that by requiring the employee to execute an overly broad release, Cummins was making disability-related inquiries that were not job-related or consistent with business necessity. Such alleged conduct violates the Americans with Disabilities Act (ADA).

 Further, the EEOC asserts that the releases presented to the employee would have resulted in the disclosure of family medical history in violation of the Genetic Information Nondiscrimination Act (GINA). The EEOC argues that Cummins also violated the anti-retaliation provisions of the ADA and GINA by firing the employee for his good-faith objections to the releases. The EEOC brought the suit under Title I of the ADA, which prohibits disability discrimination in employment, and under Title II of GINA, which prohibits the acquisition of genetic information, after first attempting to reach a pre-litigation settlement through its conciliation process. The case (EEOC v. Cummins Power Generation, Civil Action 0:14-cv-03408-SRN-SER) was filed in U.S. District Court for the District of Minnesota, and is assigned to U.S. District Judge Susan Richard Nelson.

"The EEOC doesn't challenge Cummins' request for a fitness-for-duty examination, but Cummins had an obligation to request only those medical records and information that actually pertained to that issue," said John Hendrickson, regional attorney for the EEOC's Chicago district. "Employees don't give up all rights to privacy of their medical information when they get a job. By asking for all and sundry medical information, Cummins went too far. The EEOC is here to make sure employers follow the requirements of ADA - and of GINA, which is a newer statute that everyone needs to understand and observe."

The EEOC's Chicago District Office is responsible for processing discrimination charges, administrative enforcement, and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. Further information about the EEOC is available on its website at

Wednesday, August 27, 2014

Important New Resource for Employees From Lambda Legal

Below is a press release from Lambda Legal for its new "Know Your Rights At Work" online resource. It has excellent practical tips for what to do if you experience harassment or other discrimination. I highly recommend it. It's the kind of thing you'll wish you read before if you start having a problem at work. The website URL is

Lambda Legal Launches “Know Your Rights At Work” for LGBT and HIV+ People 

 “Among callers to our Legal Help Desk, workplace issues are a top concern year after year—second only to relationship recognition.”

 (New York, August 27, 2014) — As Labor Day approaches, Lambda Legal has launched its newest section of the Know Your Rights information hub. Know Your Rights Workplace provides information for LGBT and HIV+ people who face discrimination at work. “Among callers to our Legal Help Desk, workplace issues are a top concern year after year—second only to relationship recognition,” said Greg Nevins, Counsel and Workplace Fairness Project Strategist based in Lambda Legal’s Southern Regional Office in Atlanta. “We hope the Know Your Rights Workplace resource will help people advocate for themselves as well as assist them if issues arise.”

 The Know Your Rights: Workplace hub provides a wide range of information about the rights of employees who are LGBT or HIV positive. This hub will soon be mobile friendly as well as translated into Spanish and is a user-friendly tool for LGBT and HIV + people. It includes legal and advocacy guidance on an array of issues including:

 - What to Do If You Experience Discrimination
- The Laws that Protect You - HIV Discrimination in the Workplace
- What to Do if You are Fired
- Gender Identity Discrimination
- Your Job Search
- Immigrant Rights
- Good Company Policies
- How Unions Can Help
- Same-Sex Spousal and Partner Benefits

 This is the third Know Your Rights hub Lambda Legal has launched joining Know Your Rights: Teens and Young Adults and Know Your Rights: Transgender. The organization is planning additional Know Your Rights hubs in the coming year.

 Check out Lambda Legal’s Know Your Rights Workplace resource page:

Tuesday, August 26, 2014

Do you have to be friendly to customers that stalk you? Costco Says Yes

Do you have to be friendly to customers that stalk you? Costco says yes, but not according to the EEOC, which is suing Costco.

"John Rowe, the EEOC district director in Chicago, said that the agency's administrative investigation revealed that the employee repeatedly complained to her managers at the Glenview, Ill., Costco where she worked about being pursued, approached, and confronted in the Costco by the man.  In addition, Rowe said, the employee eventually obtained an order of protection against the warehouse member for the unwelcome stalking.

"The employee's efforts weren't enough for Costco," Rowe said.  "One of her managers apparently told the young woman that he agreed the man was 'not right' and that Costco would monitor the situation.  But what actually happened was that when the situation persisted and the employee complained to the police, Costco management allegedly yelled at her and told her to be friendly to the customer."

Read more:

Can non-sexual harassment be used to bolster a sexual harassment claim?

Yes, according to the Second Circuit federal Court of Appeals, covering New York, Connecticut and Vermont.

"The evidence of harassment is quite brief. The supervisor left plaintiff three inappropriate notes in 1998 and 1999. He also summoned her to his hotel room on a business trip and said he thought of her while he was taking a shower. He also insisted that she see him in person at work and not communicate with him by email or phone. The supervisor then denied her certain promotions and denied her opportunities to work from home and take vacation even though male counterparts were able to do these things. The district court dismissed the hostile work environment case, saying there was not enough sexual harassment within the statute of limitations.

The Court of Appeals (Walker, Cabranes and Parker) reinstates the claim. "Moll’s Complaint includes both sexually overt and facially sex-neutral incidents to allege a sex-based hostile work environment. The district court should have considered all incidents in their totality—including sex-neutral incidents—before it dismissed Moll’s hostile work environment claims for failure to allege an actionable incident within the applicable statute of limitations."

Read more here: