Behind closed doors: good intentions or good old boys’ club?

The story goes that the Texas law firm of Scheef & Stone at one point enforced a policy that prohibited males and females from being alone together both in the workplace and outside the workplace.

While it is certainly conceivable that such a policy might have represented the firm’s (albeit misguided) attempt to avoid situations where sexual harassment might arise, according to the complaint filed against the firm by one of its female partners, the unwanted effect of this policy was actually to build a segregated workplace that harmed the firm’s female employees rather than protected them.

The complaint filed against Scheef & Stone alleges that this policy effectively created a workplace culture where male attorneys worked, and even socialized, primarily if not exclusively, with other male attorneys, shutting out female lawyers and hindering their ability to develop professional relationships within the firm.  The result, it was alleged, was greater opportunity for male rather than female attorneys and ultimately lower pay for the the women lawyers in the firm.  Scheef & Stone denied the allegations, including implementing a “closed doors” policy, claiming that the plaintiff simply disagreed with the firm’s business decisions, which it said were not based on gender.

While Georgia employers with similar (formal or informal) policies may think that they can breathe a small sigh of relief in that the complaint against Scheef & Stone was filed under the Texas Commission on Human Rights Act and not a state or federal law available to Georgia plaintiffs, the issues raised by the case are certainly relevant to business in all states, including Georgia. Any employer with fifteen (15) or more employees is subject to Title VII of the Civil Rights Act of 1964, which prohibits any form of discrimination based on an employee’s sex, and it is hardly a stretch of the imagination to see the potential of a Title VII lawsuit arising out of a policy similar to the one allegedly used by Scheef & Stone.

The bottom line is that any policy–from an official firm rule to an informal management policy–that seeks to treat one employee differently from another because of her or his race, sex, age, religion, national origin, or disability, even those policies that a company or manager may allegedly seek to put in place for the protection of the employee, should be examined very carefully with an employment lawyer, as there is a good chance that such actions will not only be perceived differently by the employee receiving the “protection,” but they may well also be illegal under a range of state and federal employment laws.  The employment lawyers at Briskin, Cross & Sanford are always happy to discuss your employment practices and help you develop policies and procedures that comply with both state and federal law.

One Year Later: Revisiting Glenn v. Brumby

On December 6, 2011, the United States Court of Appeals for the 11^th Circuit (which includes Georgia), issued the decision in Glenn v. Brumby, which established, for Georgia at least, a controversial precedent. Vandy Beth Glenn began work in the Georgia legislature as a male, and when she was fired from her position in the Georgia legislature, had transitioned to a female. Defendant, the General Assembly’s Legislative Counsel, Sewell Brumby, fired Ms. Glenn in October 2007 after telling her that she was “immoral” and her transition was unacceptable and inappropriate. Both the Georgia District Court and the 11^th Circuit Court of Appeals found that Ms. Glenn’s rights were violated by Defendant Brumby under the Equal Protection Clause of the United States Constitution by terminating Glenn’s employment because of her sex. In the opinion, the Court of Appeals specifically held that “[a]ll persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype.” Glenn v. Brumby, 663 F.3d 1312 (11^th Cir. 2011).

Although decided under the Equal Protection Clause, which only applies to public employers (like the government), the Court of Appeals in Brumby relied heavily on precedent decided under Title VII of the Civil Rights Act of 1964 (“Title VII”), which applies to all employers that employ 15 or more employees and prohibits discrimination based on the employee’s race, color, national origin, sex, or religion. While not conclusive, the implication is that the Brumby decision may continue expanding the definition of “sex” from meaning simply “male and female equality” (its historic meaning) to include protection against gender stereotyping, including gender stereotyping against transsexual individuals.

Practically, this means that any policies adopted by employers with 15 or more employees that simply prohibit discrimination (including harassment) based on sex alone may not be enough under Title VII. Even more practically, this means that all employers with 15 or more employees may need to review their employment practices, manuals, or policies to ensure those practices do not discriminate against or improperly impact employees based on that employee’s gender stereotypes and not just on that employee’s sex alone.