Gender Issues in the 2022 Workplace

January 3, 2023
Alexis Ronickher

This article was originally published in PLI Current: The Journal of PLI Press

Since the emergence of the #MeToo movement in October 2017 in the wake of the Harvey Weinstein scandal, the prevalence of sex-based harassment and discrimination in the workplace has gained national attention. The movement has brought long overdue attention to both the importance and power of the law to protect workers, as well as some of its failures to prevent and remedy widespread harassment. Efforts to challenge such mistreatment have gained considerable momentum, both in the courts and in the federal and state legislatures. This paper provides an overview of sex-based harassment and discrimination case law and highlights recent decisions. It also discusses expanded protections for LGBTQ workers in the wake of the U.S. Supreme Court’s decsion in Bostock v. Clayton County,[1]  and recent case law post-Bostock. Finally, it includes a discussion of recent federal and state legislative developments in response to #MeToo.

  1. Developments in Sex-Based Harassment and Discrimination Case Law

  1. Harassment Claims

Sex-based harassment claims fall under the umbrella of “hostile work environment” claims under federal and state anti-discrimination laws. The Supreme Court first recognized the validity of “hostile or abusive work environment” claims under Title VII in Meritor Savings Bank, FSB v. Vinson.[2] The Meritor Court held “that a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment.”[3] However, the Court recognized that “not all workplace conduct that may be described as harassment ‘affects a term, condition, or privilege’ of employment within the meaning of Title VII.”[4] Therefore, the Court required that for sexual harassment to be actionable, it must be unwelcome and “sufficiently severe or pervasive ‘to alter the conditions of the victim’s employment and create an abusive working environment.’”[5]

During the 1990s, courts and legal commentators differentiated between “quid pro quo” sexual harassment and “hostile work environment” sexual harassment. This distinction was “between cases in which threats are carried out and those where they are not or are absent altogether.”[6] The case law had developed to recognize that “both were cognizable under Title VII, though the latter requires harassment that is severe or pervasive.”[7]

An employee has suffered sufficiently severe or pervasive harassment to be actionable if the conduct altered the conditions of the victim’s employment and created an abusive working environment.[8] A court looks at the totality of the circumstances to determine if the harassment was sufficiently severe or pervasive to alter the conditions of employment, including the “frequency” of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”[9] This element is not one of mathematical precision but represents the reality that a line must be drawn along the spectrum between the extremes of a few isolated stray remarks and an ongoing, pervasive barrage of harassing conduct. According to the Supreme Court, the “‘mere utterance of an . . . epithet which engenders offensive feelings in an employee’ does not sufficiently affect the conditions of employment to implicate Title VII,” as opposed to a workplace that is “permeated with ‘discriminatory intimidation, ridicule, and insult.’”[10]

Whether harassment is sufficiently severe or pervasive to be actionable must be judged under objective and subjective criteria, which are based on a standard of reasonableness. Although the conduct must be severe or pervasive, it is not necessary for there to be “concrete psychological harm,” provided that “the environment would reasonably be perceived, and is perceived, as hostile or abusive.”[11] As the Harris Court noted, “Title VII comes into play before the harassing conduct leads to a nervous breakdown.”[12] The Second Circuit aptly remarked, “Harassed employees do not have to be Jackie Robinson, nobly turning the other cheek and remaining unaffected in the face of constant degradation. They are held only to a standard of reasonableness.”[13] Furthermore, numerous federal courts have held that single incidents that are sufficiently severe can constitute a hostile work environment.[14]

In addition to claims under Title VII and analogous state and local statutes, depending on the facts of the case, a sexual harassment plaintiff also may assert claims for, among other things, assault, battery, intentional infliction of emotional distress, false imprisonment, and rape. State common law tort claims may be worth exploring, particularly when workers come forward years after the harassment occurred, as some jurisdictions have extended the statute of limitations for sexual abuse.[15]

State tort claims may also be worth pursuing against individual actors because, depending on the role of the harasser, the employer’s knowledge of the harassment, and other factors, employers’ liability for harassment or discrimination in the workplace may be limited. Under certain circumstances, courts will hold employers liable for the behavior of their employees when one employee is sexually harassed by another. The harassing employee may be a supervisor or a co-worker, but courts will impose different standards depending on whether the alleged harasser has supervisory responsibility and whether the victim of harassment suffers a tangible employment action.

In 1998, the Supreme Court’s decisions in two sexual harassment cases, Burlington Industries, Inc. v. Ellerth[16] and Faragher v. City of Boca Raton,[17] significantly clarified and revised the framework for imposing employer liability (respondeat superior) in cases where a supervisor has sexually harassed an employee. The Supreme Court held that “an employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.”[18] It went on to determine that where a supervisor takes a tangible action against the employee, the employer will be subject to strict liability.[19] As the Court explained:

A tangible employment action in most cases inflicts direct economic harm. As a general proposition, only a supervisor, or other person acting with the authority of the company, can cause this sort of injury. Tangible employment actions fall within the special province of the supervisor. The supervisor has been empowered by the company as a distinct class of agent to make economic decisions affecting other employees under his or her control.[20]

A critical question a court will ask when considering whether an employer should be held vicariously liable under Title VII for the discriminatory or harassing conduct of its employees is whether the harassing employee is in fact a supervisor. In 2013, the Supreme Court provided additional clarity regarding the definition of the term “supervisor” in Vance v. Ball State University.[21] The plaintiff in Vance brought suit under Title VII, alleging that her employer is vicariously liable for the racial harassment she suffered at the hands of her supervisor.[22] She argued that the perpetrator of the harassment had the ability to assign her work and determined her hours, and that such a person, having been given control over the day-to-day tasks of other employees and having the ability to significantly alter their work experiences, should be considered a supervisor.[23] The Supreme Court found that the control that the perpetrator had over the plaintiff was insufficient for the perpetrator to qualify as a supervisor and the employer to be vicariously liable for the perpetrator’s harassing conduct.[24] The Court held that a harassing employee could not be considered a supervisor for purposes of Title VII—and therefore the employer vicariously liable for their harassing conduct— unless the harassing employee had the ability to take tangible employment actions against the plaintiff.[25] Specifically, to be deemed a supervisor, a harassing employee must be able to effect a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”[26]

  1. Current State of Sexual Orientation, Gender Identity and Expression Discrimination

In 2020, the Supreme Court ruled that Title VII’s prohibition on discrimination on the basis of sex protected employees from discrimination on the basis of their sexual orientation and gender identity.[27] This decision was momentous for LGBTQ workers who, prior to the decision, faced no protections in some regions, even where an employer explicitly stated the reason for the termination was the worker’s sexual orientation or gender identity.

The Court held that an individual’s sexual orientation or gender identity is not relevant to employment decisions because “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”[28] The Court reasoned that when an employer fires a man who is attracted to a man but not a woman who is attracted to a man, that means the employee’s sex is a but-for cause of his discharge. Similarly, firing a transgender person whose identity at birth was female but not a woman whose identity at birth was female means that the employee’s sex plays an impermissible role in the discharge decision. The Court stressed in each case the employer was penalizing an employee for “traits or actions that it tolerates” in an employee of the other sex.[29] Put another way, the Court stressed that “homosexuality and transgender status are inextricably bound up with sex.” [30]Because these attributes are bound up with sex, it does not matter that an employer’s real intent is to discriminate against homosexual or transgender employees because that amounts to intentional discrimination because of sex. The employer who would fire all gay employees, both men and women, and all transgender individuals cannot escape liability, but “doubles rather than eliminates Title VII liability.”[31]

Following Bostock, LGBTQ employees have successfully litigated claims of discrimination against their employers. In Tudor v. Southeastern Oklahoma State University, a transgender woman challenged her university’s decision not to grant her tenure, a decision which came shortly after she told officials she was planning to transition from male to female.[32] The Department of Justice filed a complaint against Southeastern in 2015 and Dr. Tudor intervened in that suit. The government settled its suit and Dr. Tudor’s case proceeded to trial. A jury found in her favor on her discrimination and retaliation claims and awarded her $1.165 million in damages, which the court reduced in accordance with applicable caps. Both parties appealed. The Tenth Circuit noted that the decision in Bostock had vitiated all Southeastern’s arguments about the unavailability of a Title VII claim based on transgender status, but Southeastern continued to argue that Dr. Tudor “impermissibly brought her case as a female instead of as a male.”[33] The court observed that it did “not see the relevance of the male/female distinction here. There is no question now that Dr. Tudor’s transgender claims are cognizable. The label given to Dr. Tudor’s sex does not change the character of the discrimination based on her transgender identity.” [34]Going forward, employers will be less likely to admit or provide direct evidence of their motives, and plaintiffs alleging discrimination on the basis of orientation or gender identity will have the same difficulties as other discrimination plaintiffs in producing evidence that establishes their protected characteristic, and not a legitimate nondiscriminatory reason, motivated the adverse action.

In Doe v. Triangle Doughnuts, LLC, a plaintiff who had not yet legally changed their gender identity but identified as female stated a cause of action under Bostock based on allegations that she was: misgendered, prevented from using the women’s bathroom, had her duties changed so as to be kept out of the view of customers, was asked probing questions about her anatomy and gender identity, was subject to a stricter dress code than other female and cisgender employees, and ultimately terminated.[35] The court held she had stated a hostile environment claim based on her transgender status under Bostock and also independently stated a sex stereotyping claim under pre-Bostock precedent.[36] Doe settled and dismissed her case on November 9, 2020. In Jarrell v. Hardy Cellular Tel. Co., the district court held that two women plausibly stated a claim for sexual orientation discrimination when, after co-workers discovered their relationship, they were subjected to harassing comments, deliberate disclosure and public disapproval of their relationship, and negative performance evaluations despite consistent performance from previous years.[37] Jarrell dismissed the case on January 5, 2021, after mediation.

In other cases, courts have refused to dismiss Title VII discrimination and retaliation claims brought by LGBTQ plaintiffs who were terminated after reporting harassment based on sexual orientation or gender identity to their employers.[38] For example, in Cimbalo v. BASF Corp., Cimbalo, an employee in the HR department, complained internally to her supervisor that one of the managers was demonstrating “racial, sexual orientation and gender hostility.”[39] In denying BASF’s motion to dismiss, the court held that opposing discrimination based on sexual orientation is protected conduct under the Kentucky statute, which the court concluded the Kentucky state courts would interpret consistently with the Supreme Court’s interpretation of Title VII in Bostock.[40]

Plaintiffs must still meet the traditional evidentiary burdens under Title VII in order to succeed on their claim. For example, in Krohmer v. American Airlines, Inc., the plaintiff alleged he was fired in violation of Title VII and the Americans with Disabilities Act because he is gay and has AIDS. [41]The court granted summary judgment for American Airlines on both discrimination claims because the plaintiff failed to make out a prima facie case in that he adduced no evidence of animus, and even if he had, he did not rebut the non-discriminatory, misconduct-based reason for his termination.

Other plaintiffs have invoked Bostock unsuccessfully when advocating for a more expansive read of its holding. For example, in Rodriguez v. Boeing Co., the court granted summary judgment for Boeing on the plaintiff’s claim of sexual orientation discrimination because he alleged only that he was perceived to be gay, based on comments by a co-worker, which did not rise to the level of creating a hostile environment and which were not connected in any way to the decision to terminate his employment.[42] The court concluded that Rodriguez was not a member of a protected class and his sexual orientation claims were barred as a matter of law. In Whetstine v. Woods Services, the plaintiff was treated adversely out of personal animus by a female supervisor who resented the plaintiff’s sexual relationship with a man who had once been the supervisor’s boyfriend.[43] The court dismissed plaintiff’s sex discrimination claims holding that the plaintiff had not pled sufficient facts to show that her sex was the reason for her termination.[44] Rather, the facts as pled showed that she was fired because of personal animus caused by her relationship with Mr. Whetstine, regardless of the sex of any of the individuals involved.[45]

The Supreme Court’s ruling in Bostock has also contributed to broader protections for LGBTQ individuals before executive agencies. On January 20, 2021, President Biden signed Executive Order 13988, “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation,” which seeks to ensure that all federal agency policies, regulations, and actions are consistent with the Administration’s goals of advancing gender equity.[46] The Executive Order adopts an expansive interpretation of gender equity that encompasses protections on the basis of gender identity and sexual orientation. The Order cites the Supreme Court’s ruling in Bostock that Title VII’s prohibition on sex discrimination covers discrimination on the basis of sexual orientation and gender identity. The Administration extends Bostock’s reasoning to other laws that prohibit sex discrimination, including those related to education, health, and housing. The Order also acknowledges how discrimination on the basis of gender may intersect with other forms of discrimination, such as race or disability. With this expansive understanding of gender equity, the Order instructs agencies to review all existing agency actions to ensure that they are consistent with this new framework.

In accordance with Executive Order 13988, the Department of Justice issued guidance specifically instructing federal agencies to apply Bostock’s definition of sex discrimination to Title IX. [47]Accordingly, the EEOC and the Department of Education issued guidance on the interpretation of Title VII and Title XI, respectively, following Bostock and Executive Order 13988.[48]

In response, twenty states filed suit challenging the legality of the EEOC and Department of Education guidance documents.[49] The court subsequently granted a preliminary injunction preventing the implementation of the challenged guidance documents against the twenty plaintiff-states, although refused to issue a nationwide injunction.[50] The court based its decision on the finding that the plaintiff-states had a likelihood of success on the merits that the guidance documents failed to comply with the required notice and comment procedures under the Administrative Procedures Act.[51] The case is currently on appeal before the Sixth Circuit.

Courts have also invoked Bostock to hold that Title VII and the ACA protect LGBTQ employees’ right to have their employer-sponsored insurance offer coverage for same-sex partners and gender-affirming surgeries, among other benefits. In Jimenez v. Laborer’s Welfare Fund of the Health & Welfare Department of the Construction & General Laborers’ District Council of Chicago & Vicinity, Jimenez, a gay woman, was denied spousal coverage for her wife under her union’s health insurance plan.[52] When Jimenez applied for coverage for her wife, she received a letter stating that “same-sex partners are not eligible dependents.”[53] The court held that, following Bostock, there was no longer “any dispute that the conduct alleged constitutes sex discrimination,” so long as Title VII’s other requirements were met. [54]As the court explained, “[h]ad Jimenez been a man seeking spousal coverage for a wife, coverage would not have been denied.”[55] Accordingly, “Jimenez’s sex was a but-for cause of the Fund’s denial of spousal coverage.”[56]

In Lange v. Houston County, Georgia, Lange, a transgender woman, challenged her employer’s health insurance plan, which precluded coverage for transition surgery, arguing that the exclusion violated Title VII, the Equal Protection Clause, and the ADA.[57] Defendants argued, in part, that the health insurance plan did not violate Title VII because it offered all employees the same coverage, with no distinctions on the basis of sex or transgender status.[58] The court rejected this argument, noting that “[t]he suggestion that an employer with a single health insurance plan could fill the plan with discriminatory exclusions and avoid Title VII liability because the employer offered that one ‘coverage package’ to all employees lacks any merit.”[59] Rather, the court held that the exclusion of coverage for transition surgery “plainly discriminates because of transgender status.”[60] Other lower courts have similarly held that the denial of health insurance coverage for gender-confirming treatment violates Title VII and the ACA’s anti-discrimination provision.[61]

Elsewhere, efforts to enshrine LGBTQ rights have faced setbacks, as employers and covered entities have raised religious objections. Several courts have halted enforcement of regulations protecting access to gender-affirming surgeries. In Religious Sisters of Mercy v. Cochran, the court permanently enjoined enforcement of the EEOC and  U.S.  Department  of  Health  and  Human  Services  (HHS)’s  interpretation  of

Section 1557 of the Patient Protection and Affordable Care Act (ACA), which required plaintiffs to perform and provide insurance coverage for gender-transition procedures.[62] Plaintiffs, who were all Catholic entities, successfully argued that the interpretation violated their sincerely held religious beliefs and failed to satisfy strict scrutiny under the Religious Freedom Restoration Act (RFRA), [63]and the Eighth Circuit upheld the district court’s grant of injunctive relief for all the named plaintiffs.[64] Likewise, in Franciscan Alliance, Inc. v. Burwell, the court preliminarily enjoined HHS’s regulation forbidding discrimination on the basis of “gender identity” or “termination of pregnancy.”[65] The court held that the regulation (1) was arbitrary, capricious, and contrary to law under the Administrative Procedure Act (APA) because it failed to incorporate Title IX’s religious and abortion exemptions; and (2) likely violated RFRA, as applied to plaintiffs, because it placed substantial pressure on plaintiffs to perform abortions and transition surgeries, in contravention of their religious beliefs, without satisfying strict scrutiny.[66] While the case was on appeal, HHS repealed and modified the rule, excising the portions of the rule that the Franciscan Alliance had challenged. On remand, the district court nevertheless issued a permanent injunction against future regulations that might require plaintiffs to perform abortions or gender-reassignment surgeries, which was affirmed on appeal.[67]

Other courts have also granted religious exemptions to employers facing Title VII discrimination claims. In Bear Creek Bible v. EEOC, a case currently on appeal before the Fifth Circuit, a Christian church and Christian-owned business that did not wish to hire or retain employees who identified as gay or transgender sued the EEOC and Department of Justice, seeking a declaration that they were entitled to exemption from Title VII and that their workplace policies did not violate Title VII.[68] The businesses and the government defendants moved for summary judgment. The district court certified two classes and held that the sub-class of church employers was exempt from Title VII by virtue of the exception for religious corporations in 42 U.S.C. § 2000e- 1(a).[69] Notably, although the exemption allows religious entities to discriminate on the basis of religion in selecting employees, the court held that the exemption exempts religious employers from all forms of discrimination claims “so long as the employment decision was rooted in religious belief.” [70]The court held that the sub-class of “Religious Business-Type Employers” did not qualify for the Title VII religious exemption but that the class was exempt under RFRA because the government did not demonstrate that it had a compelling interest in denying them an exemption.

  1. Causation Requirement for Harassment and Discrimination Claims

In addition to expanding protections for LGBTQ workers, in Bostock, the Supreme Court also reinforced Title VII jurisprudence that the discriminatory reason need only be one of the reasons for the employer’s adverse action.[71] The Supreme Court has emphasized the “but for” pleading requirement for harassment claims: “Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at ‘discriminat[ion] . . . because of . . . sex.’”[72]

In Bostock, the Court made a number of crucial observations about the meaning of but-for causation. The Court emphasized this is a “sweeping standard” and that events can have more than one cause so a defendant cannot avoid liability by citing some other factor that contributed to its decision so long as the plaintiff’s sex was one but-for cause of the decision.[73] The Court noted that Congress could have adopted a sole cause or primary cause standard but in fact had gone in the opposite direction by enacting the “motivating factor” provision, a more forgiving standard than but-for causation. [74]Immediately after invoking the “motivating factor” provision of Title VII, the Court said its analysis did not turn on that test, and it would focus on “the more traditional but-for causation standard that continues to afford a viable, if no longer exclusive, path to relief  under Title VII.”[75]  The Court’s emphasis on the breadth  of  but-for cause, especially its repeated admonition that it need not be the only or primary cause, should help all discrimination plaintiffs in meeting that burden.

Federal  courts have relied on the Court’s discussion of but-for causation under Title  VII  in  Bostock  when  analyzing   the  causation  requirements  for  plaintiffs’ discrimination and retaliation claims.[76]

  1. Legislative Developments

  1. Federal Legislative Changes

On March 3, 2022, President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.[77] The new law provides an employee with the option to file a sexual harassment or assault claim in court even if the individual entered into an arbitration agreement before the harassment or assault occurred.

In evaluating this legislation, the House Judiciary Committee, identified many of the challenges that arbitration presents to employees who wish to litigate their claims, including:

    • Imposition of arbitration provisions in employment contracts that are offered on a take-it-or-leave-it-basis;
    • Arbitrators’ freedom to interpret laws in ways that do not conform to judicial precedent;
    • Employers’ significant advantage over employees because companies are repeat players in arbitration;
    • Confidential nature of the proceedings and decisions, which prevent the public from knowing whether arbitrators properly enforced the law, or even if the dispute ever existed. (This means that many individuals may accuse the same defendant of the same wrongdoing, but all accusations are hidden from the public—and from other employees who may be at risk of the same mistreatment.)

The new law gives employees, as well as consumers, who allege that they were sexually harassed or sexually assaulted the right to bring their claims, even if they have signed a contract with the business that contains a mandatory arbitration provision. The main provision of the law states:

Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.[78]

The statute defines “sexual harassment dispute” as a dispute in which the individual alleges conduct that constitutes sexual harassment under applicable federal, state, or tribal law.[79] Recognizing that some plaintiffs may wish to proceed with arbitration, which is private and not public, Congress provided plaintiffs with sexual harassment or assault claims the option of vindicating their rights in arbitration or in court.

Finally, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act applies to any claim that arises on or after March 3, 2022, the day it was signed into law. This means that regardless of when the arbitration agreement was signed or otherwise became effective, if the sexual harassment or assault occurred on or after March 3, the law against forced arbitration applies.

Congress has also passed legislation to limit the use of non-disclosure agreements. The Speak Out Act has passed the House and Senate and is expected to be signed into law by President Biden. [80]The Act would render unenforceable predispute nondisclosure and nondisparagement clauses related to sexual harassment or sexual assault. Another piece of proposed legislation, the Accountability for Workplace Misconduct Act, would require employers to establish various avenues for employees to report discrimination and harassment complaints, and it would require employers to conduct an investigation into such complaints.[81] The law would also deem certain settlement agreements unenforceable if such agreements prohibit a party from disclosing information to Congress, a federal, state, or local government agency, or a law enforcement entity.

  1. State Legislative Changes

While the federal government has taken some strides to enhance workplace protections, those reforms are slow-moving compared to proposed and enacted legislation in some states. In 2022, Maryland passed a law that expanded the definition of sexual harassment to unwelcome and offensive conduct, which need not be severe or pervasive.[82] Specifically, the definition of harassment was changed to include, “based on the totality of the circumstances, conduct [that] unreasonably creates a working environment that a reasonable person would perceive to be abusive or hostile.”[83]

In 2021, Texas enacted law S.B. 45, S.B. 282 and H.B. 21, which extended protections for sexual harassment victims in the workplace. Each bill took effect on September 1, 2021, revising vital parts of the Texas Commission on Human Rights Act. These changes include expanding the definition of employer to include businesses with at least one employee acting “directly in the interests of an employer in relation to an employee.”[84] The law broadened the class of tortfeasors to include individuals such as supervisors for failure to take immediate corrective action. It also increased the statutory filing period from 180 to 300 days. The law also prohibited the use of taxpayer dollars to pay sexual harassment awards against appointed or elected officials and their staff, a provision that underscores the nationwide impact of the #MeToo movement.

Virginia also expanded its protections in 2021 to include domestic workers, a category of workers who are predominantly women and particularly vulnerable to workplace discrimination and harassment.[85] Domestic workers are often excluded from anti-discrimination protections, both at the federal and state level.

Legislation to enhance protections from harassment and discrimination is also pending in other states. In New Jersey, the legislature has proposed S. 3352, which, if passed, would become one of the strongest workplace harassment laws in the country. The bill would require employers to have workplace policies on discrimination and harassment and to conduct interactive workplace antidiscrimination and anti- harassment trainings ninety days after hire and every two years. The law would also extend antidiscrimination protections to interns, independent contractors, and domestic workers, categories of workers who are excluded from federal protections. The New Jersey proposed legislation would expressly revoke the requirement that a plaintiff show that the harassment was severe or pervasive. Instead, it would create an affirmative defense that put the burden on the defendant to show “that the harassment does not rise above the level of what a reasonable victim of discrimination of the same protected category would consider petty slights or trivial inconveniences.”[86]

New York introduced a slate of legislation that would expand existing protections by banning “no-rehire” provisions in workplace settlement agreements and extending the statute of limitations from two years to six years in employment discrimination and harassment suits.[87]

Not all states are moving towards expanding protections for workers, however. Ohio recently rolled back its expansive protections for workers who faced discrimination in the workplace. The Ohio Employment Law Uniformity Act took effect on April 15, 2021.[88] While it changed Ohio employment discrimination law such that it aligned with federal law, those changes effectively rolled back some unique protections employees had previously enjoyed in Ohio. Ohio shortened the statute of limitations for filing a workplace discrimination claim from six years to two years and limited employer liability for hostile work environment claims.[89] Ohio also joined a majority of others states to require the exhaustion of administrative remedies before the Ohio Civil Rights Commission prior to commencing a lawsuit.[90] The new law also provided an affirmative defense to harassment claims for employers that take appropriate action to prevent and promptly correct harassing behavior in the workplace, a defense available under federal law, and it removed personal liability for managers and supervisors. The law clarified that the caps on damages in Ohio’s Tort Reform Act apply to employment actions.

Finally, some states have addressed the prevalence of nondisclosure agreements in settlements involving harassment and discrimination in the workplace. While some plaintiffs may wish to execute a nondisclosure to protect their identities and to put past traumatic experiences behind them, others may feel strongly about maintaining the right to speak about their experiences and the harm that it caused, even after resolving their claims with their employer. California passed the Silenced No More Act, which clarifies that employers may not use non-disparagement agreements or nondisclosure agreements to prevent an employee from discussing factual information related to a claim for workplace harassment or discrimination, whether or not the harassment or discrimination is based on sex.[91] Washington State also passed a similar Silenced No More Act in 2022, which prohibits agreements containing nondisclosure and non- disparagement provisions that restrict applicants, employees, and independent contractors from openly discussing conduct or a legal settlement involving, inter alia, discrimination, harassment, and retaliation. [92]In Nevada, contract and settlement provisions will be deemed void and unenforceable if the provision restricts a party from testifying at a judicial or administrative proceeding related to the other party’s commission of a criminal offense, sexual harassment, discrimination, or related retaliation.[93] New York also limited the use of certain non-disclosure agreements in the context of discrimination, harassment, and retaliation claims.[94]

  1. Conclusion

Growing national awareness of the prevalence of sex-based harassment and discrimination has helped propel federal and state efforts to enhance workplace protections, by extending statutes of limitations and eliminating the use of nondisclosure agreements and mandatory arbitration clauses, among other measures. In the courts, recent case law has strengthened protections against harassment and discrimination. For example, courts increasingly recognize that a single incident of harassment can be sufficiently severe to create a hostile work environment and be actionable. At the same time, Bostock and the lower-court cases it spurned have expanded LGBTQ employee rights and Title VII protections. Moving forward, Bostock may have applications in other areas, such as Title IX. Its application may also be limited, however, by defendants’ invocation of religious objections to discrimination claims  or  states’  challenges  to  agency  guidance  implementing  Bostock.  The  2022 workplace contains more protections for employees than ever before, but it remains to be seen how efforts from defendant employers may halt or reverse recent progress.

 


[1]  140 S. Ct. 1731 (2020).

[2] Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986).

[3] Id. at 66.

[4] Id. at 67.

[5] Id. at 67-68.

[6] Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 751 (1998).

[7] Id. (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)).

[8] See Clark Cnty. School Dist. v. Breeden, 532 U.S. 268, 270 (2001).

[9] Id.

[10] Harris v. Forklift Sys., Inc., 510 U.S. at 21 (quoting Meritor, 477 U.S. at 65, 67).

[11] Id. at 22 (1993) (emphasis added).

[12] Id.

[13] Torres v. Pisano, 116 F.3d 625, 632-33 (2d Cir. 1997) (footnote omitted).

[14] See, e.g., Woods v. Cantrell, 29 F.4th 284, 285 (5th Cir. 2022) (single incident in which plaintiff’s supervisor called him the n-word was sufficient to state hostile work environment claim); Castleberry v. STI Grp., 863 F.3d 259, 265–66 (3d Cir. 2017) (“The Supreme Court’s decision to adopt the ‘severe or pervasive’ standard—thereby abandoning a ‘regular’ requirement—lends support that an isolated incident of discrimination (if severe) can suffice to state a claim for harassment.”); Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 268 (4th Cir. 2015) (en banc) (“[W]e underscore the Supreme Court’s pronouncement in Faragher . . . that an isolated incident of harassment, if extremely serious, can create a hostile work environment.”); Adams v. Austal, U.S.A., LLC, 754 F.3d 1240, 1254 (11th Cir. 2014) (although a racially offensive carving on a workplace wall “was an isolated act, it was severe” enough that a “reasonable jury could find that [plaintiff’s] work environment was objectively hostile”); Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1243 (10th Cir. 2001) (“[A]n isolated incident may suffice if the conduct is severe and distressing.”); Noviello v. City of Bos., 398 F.3d 76, 84 (1st Cir. 2005) (“Most hostile work environments are bred from an ongoing series of harassing incident. However, a single act of harassment may, if egregious enough, suffice to evince a hostile work environment.”); Richardson v. New York State Dep’t of Corr. Serv., 180 F.3d 426, 439 (2d Cir. 2000) (“There is neither a threshold ‘magic number’ of harassing incidents that gives rise, without more, to liability as a matter of law, nor a number of incidents below which a plaintiff fails as a matter of law to state a claim.”) (quoting Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir. 1993)). Rumors based on sex may also be considered unlawful harassment. See Parker v. Reema Consulting Servs., Inc., 915 F.3d 297, 302-03 (4th Cir. 2019) (reversing motion to dismiss and finding that rumors that plaintiff slept with her boss to obtain a promotion was harassment based on her sex).

[15] See, e.g., D.C. CODE § 12-301(11) (“for the recovery of damages arising out of sexual abuse that occurred while the victim was less than 35 years of age–the date the victim attains the age of 40 years, or 5 years from when the victim knew, or reasonably should have known, of any act constituting sexual abuse, whichever is later”).

[16] Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 764-65 (1998).

[17] Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998).

[18] Ellerth, 524 U.S. at 765; accord Faragher, 524 U.S. at 807 (quoting Ellerth).

[19] Ellerth, 524 U.S. at 760-62.

[20] Id. at 761-62; accord Faragher, 524 U.S. at 803 (“an employee generally cannot check a supervisor’s abusive conduct the same way that she might deal with abuse from a co-worker. When a fellow employee harasses, the victim can walk away or tell the offender where to go, but it may be difficult to offer such responses to a supervisor.”).

[21] Vance v. Ball State Univ., 570 U.S. 421 (2013).

[22] Id. at 425.

[23] Brief for Petitioner-Appellant at 19-20, Vance v. Ball State Univ., 570 U.S. 421 (No. 11-

556).

[24] Vance, 570 U.S. at 449-50.

[25] Id. at 431.

[26] Id.

[27] See Bostock v. Clayton Cnty., 140 S.Ct. 1731 (2020).

[28] Id.

[29] Id.

[30] Id. at 1742.

[31] Id. at 1742-43.

[32] Tudor v. Se. Okla. State Univ., 13 F.4th 1019 (10th Cir. 2021).

[33] Id. at 1028 & n.4.

[34] Id. at n.4.

[35] Doe v. Triangle Doughnuts, LLC, 472 F. Supp. 3d 115, 129-30 (E.D. Pa. 2020).

[36] Id. at 129 & n. 14.

[37] Jarrell v. Hardy Cellular Tel. Co., 2020 WL 4208533 (S.D. W. Va. July 22, 2020).

[38] See, e.g., McLucas v. Home Depot U.S.A., Inc., No. 5:19-CV-437, 2020 WL 6326097, at

*3-*4 (E.D.N.C. Oct. 28, 2020) (denying motion to dismiss Title VII retaliation claims brought by former gay employee who was disciplined and terminated after reporting harassment based on the employee’s sexual orientation to the human resources department); Barreth v. Reyes 1, Inc., No. 5:19-cv-00320, 2020 WL 4370137, at *4, 12, 14 (M.D. Ga. July 29, 2020) (denying motion to dismiss Title VII retaliation claim by transgender employee but dismissing other sexual harassment, hostile environment, and constructive discharge claims for failing to plead sufficient facts to support those claims, but citing Bostock in finding that employee was a member of a protected group).

[39] Cimbalo v. BASF Corp., No. 3:21-cv-309-DJH, 2022 WL 696798 (W.D. Ky. Mar. 8,

2022).

[40] Id. at *3-*5.

[41] Krohmer v. American Airlines, Inc., No. 2:17-cv-01239, 2021 WL 3828150 (W.D. Pa. Aug. 27, 2021).

[42] Rodriguez v. Boeing Co., No. 18-1213, 2021 WL 4847957 (W.D. Wash. Oct. 18, 2021).

[43] Whetstine v. Woods Services, No. 21-02289, 2022 WL 221526 (E.D. Pa. Jan. 24, 2022).

[44] Id. at *5

[45] Id.

[47] See Memorandum from Pamela S. Karlan, Principal Deputy Assistant Att’y Gen., U.S. Dep’t of Justice, Civ. Rts. Div., to Fed. Agency Civ. Rts. Dirs. And Gen. Counsels, Application of Bostock v. Clayton County to Title IX of the Education Amendments of 1972 (Mar. 26, 2021).

[48] See Dept of Educ., Enforcement of Title IX of the Education Amendments of 1972 With Respect to Discrimination on Sexual Orientation and Gender Identity in Light of Bostock v. Clayton County, 86 Fed. Reg. 32637 (June 22, 2021); EEOC, Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity (June 15,

2021).

[49] Tennessee v. U.S. Dep’t of Educ., No. 3:21-CV-308, 2022 WL 2791450 (E.D. Tenn. July 15, 2022).

[50] Id. at *24.

[51] Id. at 22.

[52] Jimenez v. Laborer’s Welfare Fund of Health & Welfare Dep’t of Constr., 493 F. Supp. 3d 671 (N.D. Ill. 2020).

[53] Id. at 674.

[54] Id.

[55] Id.

[56] Id.

[57] Lange v. Houston Cnty., Georgia, No. 5:19-CV-392 (MTT), 2022 WL 1812306 (M.D. Ga. June 2, 2022).

[58] Id. at *13.

[59] Id.

[60] Id. at *14.

[61] See, e.g., Kadel v. Folwell, 446 F. Supp. 3d 1 (M.D.N.C. 2020), aff’d sub nom. Kadel v. N. Carolina State Health Plan for Tchrs. & State Emps., 12 F.4th 422 (4th Cir. 2021), as amended (Dec. 2, 2021), cert. denied, 211 L. Ed. 2d 568, 142 S. Ct. 861 (2022); Boyden v. Conlin, 341 F. Supp. 3d 979 (W.D. Wis. 2018); but see Scott v. St. Louis Univ. Hosp., No. 4:21-CV-01270-AGF, 2022 WL 1211092, at *4 (E.D. Mo. Apr. 25, 2022) (holding that plaintiff, an employee receiving health insurance for her and her dependents, could not state a claim pursuant to Title VII for discrimination against her transgender son after her employer refused to cover his gender-confirming healthcare); Toomey v. Arizona, No. CV-19-00035- TUC-RM (LAB), 2021 WL 753721, at *5–6 (D. Ariz. Feb. 26, 2021) (denying plaintiff’s motion for preliminary injunction to enjoin his state-sponsored healthcare plan’s exclusion of coverage for gender reassignment surgery).

[62] Religious Sisters of Mercy v. Cochran, No. 3:16-CV-00386, 2021 WL 1574628 (D.N.D. Feb. 19, 2021).

[63] See also Christian Emps. All. v. United States Equal Opportunity Comm’n, No. 1:21-CV- 195, 2022 WL 1573689, at *9 (D.N.D. May 16, 2022) (granting preliminary injunction enjoining enforcement of EEOC and HHS interpretation of Section 1557 against plaintiff).

[64] The Religious Sisters of Mercy, et al. v. Becerra, No. 21-1890, 2022 WL 17544669 (8th Cir. Dec. 9, 2022).

[65] Franciscan Alliance, Inc. v. Burwell, 227 F. Supp. 3d 660 (N.D. Tex. 2016) (citing 42 U.S.C. § 18116(a); 45 C.F.R. § 92.4).

[66] Id. at 691–95.

[67] See Franciscan All., Inc. v. Becerra, 47 F.4th 368, 379 (5th Cir. 2022).

[68] Bear Creek Bible Church v. EEOC, No. 4:18-cv-00824, 2021 WL 5449038 (N.D. Tex. Nov. 22, 2021).

[69] Id. at *22.

[70] Id. at *6.

[71] See Bostock, 140 S. Ct. at 1739 (“Often, events have multiple but-for causes………. When it

comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff’s sex was one but-for cause of that decision, that is enough to trigger the law.”).

[72] Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 80 (1998).

[73] See Bostock, 140 S. Ct. at 1739 (citing Burrage v. United States, 571 U.S. 204, 211-212

(2014) and Nassar, 570 U.S., at 350).

[74] See 42 U.S.C. § 2000e-2(m).

[75] Id. at 1740 (citing 42 U.S.C. § 2000e-2(a)(1)).

[76] See, e.g., Frappied v. Affinity Gaming Black Hawk, LLC, 966 F.3d 1038 (10th Cir. 2020) (holding sex-plus-age claims are cognizable under Title VII, citing Bostock); Black v. Grant Cnty. Pub. Util. Dist., 820 F. App’x 547, 551 (9th Cir. 2020) (reversing grant of summary judgment on retaliation claim because protected activity “was one but-for cause of the decision,” citing Bostock); Peterson v. W. TN Expediting, Inc., 856 F. App’x 31, 34 (6th Cir. 2021) (upholding jury verdict of unlawful retaliation despite evidence of other reasons for the adverse action because “it doesn’t matter if other factors. . . contribute to the decision,” citing Bostock).

[77] 9 U.S.C. §§ 401, 402.

[78]  9 U.S.C. § 402.

[79] 9 U.S.C. § 401.

[80] S.4524, 117th Cong. (2022), https://www.congress.gov/bill/117th-congress/senate- bill/4524.

[81] H.R. 8146 (2021).

[82] S.B. 450 (Md. 2022).

[83] Id.

[84] TEX. LAB. CODE § 21.141.

[85] S.B. 1310, 2021 Special Sess. (Va. 2021); H.B. 1864, 2021 Special Sess. (Va. 2021); H.B.

2032, 2021 Special Sess. (Va. 2021).

[86] S. 3352 (NJ 2021).

[87] See S.B. S776 (NY 2021) (workplace settlement agreements that prevent an employee or independent contractor from applying for, accepting, or engaging in future employment with the employer (“no-rehire” provisions) are not enforceable).

[88] H.B. 352, 133rd Gen. Assemb. (Oh. 2021).

[89] OHIO REV. CODE ANN. § 4112.02.

[90] OHIO REV. CODE ANN. § 4112.05.

[91] S.B. 331 (Cal. 2021).

[92] HB 1795 (Wash. 2022).

[93] A.B. 60, 81st Leg. (Nev. 2021).

[94] See S.B. S738 (N.Y. 2021).

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