Hobby Lobby discriminates against transgender employee

[redheadbaker]

Hobby Lobby Is Now Discriminating Against a Transgender Employee
www.thenation.com/blog/180633/hobby-lobby-now-discriminating-against-transgender-employee
Michelle Chen on July 14, 2014 - 1:45 PM ET

The Supreme Court's decision in Burwell v. Hobby Lobby Stores revealed just how far the law now allows corporations to reach into women’s private lives. Now, another case against the same craft store chain is reaching into the ladies room as well.

Meggan Sommerville, a Hobby Lobby frameshop manager in Aurora, Illinois, has for years been shut out of the store’s bathroom because her boss insists that, as a trans woman, she cannot use the facilities. She is pressing a discrimination case with the Illinois Human Rights Commission, contending that the ban is both insulting and illegal under state laws barring discrimination in both employment and in public accommodations. The lockout has become a full-fledged civil rights battle—and perhaps the next legal showdown in the debate around corporate personhood, religion and civil rights at work.

A 16-year Hobby Lobby employee, Sommerville underwent her transition in 2010, and after informing her manager and having her legal identity changed, she says that her coworkers and customers have been supportive throughout the process. But for management, the bathroom door remains a bridge too far. The company’s persistent rejection of her demand for equal access seems to reflect the ideology that drove its Supreme Court crusade against contraceptive insurance mandates under the federal healthcare law. Hobby Lobby’s willingness to flout public mandates to impose conservative values suggests that bias against transgender workers may be another way the company tries to “live out our faith in the way we do business."

As reported by Newsweek, Sommerville’s pending case, which was first brought in 2011 (and reinstated by the state Human Rights Commission after initially being dismissed by the Human Rights Department for lack of evidence), is arguably an even more explicit example of a culture war being waged in the workplace. According to the complaint, Hobbby Lobby’s management states that unless she would “undergo genital reconstructive surgery” she would not receive equal treatment as a female employee.

When Sommerville showed up for work just after having her name officially changed, she recalls, “I was told I would not be allowed to use the women's restroom even though I had legally changed my name... I was devastated. It was a knife-to-the-gut insult to me.”

(Many transgender people do not have surgery, out of choice or due to economic or medical barriers, and it is generally not necessary for official recognition.)

The policy has affected her body and mind, as well as her ability to do her job. To relieve herself she must find another bathroom at an outside business or public facility. The complaint states that she was diagnosed in 2012 with thyroid problems and Fibromyalgia, which affect the bladder, and has suffered dehydration from “limiting her intake of fluids.”

In addition to the alienation imposed by her employers’ assumptions about her genitalia, the complaint states that, forced to use the men’s room, she has had to wait around or hide to avoid encounters with male users.

The experience that pushed Sommerville to take legal action was the humiliation of being “caught” using the gender-appropriate bathroom and then receiving “a written warning of insubordination”—a reprimand for acting like the woman she was.

“I felt like someone had just basically eviscerated me. My whole world turned upside down,” she says.

The complaint charges that due to Hobby Lobby’s actions, she “has experienced over-anxiousness, embarrassment, shame, depression, anxiety, emotional distress, feelings of helplessness and has had trouble sleeping.”

Hobby Lobby’s exact rationale, however, is still unclear. In contrast to the amped-up Christian rhetoric surrounding the company’s Supreme Court litigation, it has declined to comment publicly on Sommerville’s case (requests from The Nation have so far received no response). According to the complaint, Hobby Lobby has not directly cited religious reasons for its denial of bathroom access.

But Sommerville's attorneys say the bathroom ban—a rule that was communicated to Sommerville by the Human Resources Department—stems from the corporate leadership's ideology. "This is not just an issue of a manager” acting independently, says her lawyer Jacob Meister. “This is a matter that's risen through the corporate level, all the way….They've [dug] in their heels on this one."

As further evidence of ideological motives behind its anti-trans discrimination, advocates point to the massive funds (revealed earlier this year by Salon.com) that Hobby Lobby’s corporate empire has pumped into Christian-right and anti-LGBT lobbying groups.

Perhaps the company’s quieter stance on Sommerville’s case reflects its own contradictory policies. It has, after all, recognized Sommerville’s gender identity on various legal grounds, but refuses to let her use a public accommodation that is appropriate for that very same identity. (Not to mention the more fundamental paradox that the company is imposing its will, based on an irrational and unhealthy concept of gender, in a way that asserts corporate personhood over the worker’s own sense of personhood.)

Though Sommerville, a practicing Christian, is comfortable with the company’s general faith orientation, she sees the contraceptives dispute as a similar case of overreach.

“I'm not in favor of any corporation dictating what is best for my medical treatment. I think that is best decided between my doctor and myself,” she tells The Nation. “This case, with the Supreme Court, I see as potentially a slippery slope where corporations can continue to deny access to appropriate medical care based on any number of circumstances."

Sommerville’s case folds into a wave of activism on transgender rights at work, school and other public spaces. In recent months, a Maine lawsuit led to legal recognition of transgender students’ right to equal access to bathrooms at school. California has passed a law to ensure gender-appropriate bathroom accommodations for trans students.

Following a landmark ruling by the Equal Employment Opportunity Commission, the Department of Labor recently announced it would update its policies on transgender rights, by enforcing sex discrimination policies in accordance with individuals’ current gender identity.

But such reforms barely dent the problem of institutionalized discrimination in public space. One study of transgender people in Washington, DC, found that, on top of general social stigma and discrimination, “Seventy percent… reported being denied access, verbally harassed, or physically assaulted in public restrooms.”

Although Sommerville brought her case under Illinois state law, advocates hope a ruling in her favor could set a precedent for other states’ treatment of transgender people under the rubric of civil rights and labor law.

But whatever Hobby Lobby does in the political arena, Sommerville is most anxious about how she’s treated when she shows up at work each day—to do a job that she still loves. She’s just waiting for her employer to recognize what her coworkers and her community have already accepted.

[omgzombies]

Gasp, not Hobby Lobby!

[gpw]

SHOCKING!

Oh wait...no it isn't.

[UMaineTeach]

It's their sincerely held religious belief that she is a man and should use the men's restroom. That's all the court needs to know.

It's doesn't matter if they contradict this sincere belief in other areas of her employment.

The SCOTUS ruling was in no way a slippery slope. nope.

[MWOS]

thankfully there isn't any precedent which would allow hobby lobby to act as if the company had religious freedofuuuuuuuuuuuuuuccccccccccccccccccccccckkkkkkkkkkkkkkkkkkk

[mbcdefg]

[teflepi]

Isn't this now illegal? Or no? I thought it was illegal as of very recently.

[secretlyevil]

Jul 14, 2014 14:21:14 GMT -5 mbcdefg said:

quoting this will work.

[ESF]

Jul 14, 2014 14:21:36 GMT -5 teflepi said:

Isn't this now illegal? Or no? I thought it was illegal as of very recently.

What is now illegal?

Some states have laws protecting transgendered people, and it sounds as though Illinois is one of them. 

But per the SCOTUS decision, corporations raise "religious freedom" as a defense to try to avoid complying with these kinds of laws.

So, even if it's illegal on paper, in practice, there's now a loop hole.


It sounds to me like Hobby Lobby wanted to keep this issue quiet while its contraception fight made its way through the courts.  Now that that's been resolved favorably, I'm sure their strategy here will be to invoke the RFRA.

This poor woman will probably be fired.

[Velar Fricative]

Stupid questions - I'm pretty sure transsexual people aren't part of a federally-protected class for discrimination lawsuit purposes, correct? Or does it get included in gender discrimination? Like, she is a trans woman but legally, she's just a woman. So if I as a natural-born woman was somehow forced to only be able to use the men's room at work, that would be grounds for a lawsuit due to gender discrimination (right?). Wouldn't that be the case for this woman even if she wasn't actually born a woman since she is legally a woman?

I probably don't make any sense. But I guess it doesn't matter because corporatepersonhoodreligiousfreedomfuckingSCOTUS.

[pixy0stix]

FUCKING HOBBY LOBBY!

It's just a bathroom. C'MON!

[ttt]

I'm not at all siding with Hobby Lobby here but why is she too embarrassed to use the men's room with men around? Presumably this is something she has done before in her life.

Eta I guess this goes to the question of why gender ssegregated restrooms at all.

[teflepi]

Jul 14, 2014 14:35:37 GMT -5 ESF said:

Jul 14, 2014 14:21:36 GMT -5 teflepi said:

Isn't this now illegal? Or no? I thought it was illegal as of very recently.

What is now illegal?

Some states have laws protecting transgendered people, and it sounds as though Illinois is one of them. 

But per the SCOTUS decision, corporations raise "religious freedom" as a defense to try to avoid complying with these kinds of laws.

So, even if it's illegal on paper, in practice, there's now a loop hole.


It sounds to me like Hobby Lobby wanted to keep this issue quiet while its contraception fight made its way through the courts.  Now that that's been resolved favorably, I'm sure their strategy here will be to invoke the RFRA.

This poor woman will probably be fired.

Discriminating against people who are transgendered...everywhere.  Here is what I had read (as I thought it was not widespread):
In case you needed some clarification, transgender discrimination is illegal. According to the Department of Labor, it is considered discrimination based on sex and violates Title VII. The Dept. of Labor is the latest federal agency to clarify their policy on anti-trans discrimination:
“Labor Secretary Tom Perez said, ‘These changes reflect current law. In Macy v. Holder, for example, the Equal Employment Opportunity Commission concluded that discrimination because a person is transgender is sex discrimination in violation of Title VII of the Civil Rights Act of 1964. The Office of Federal Contract Compliance Programs and Civil Rights Center, along with the Employment and Training Administration, will issue guidance to make clear that discrimination on the basis of transgender status is discrimination based on sex. ‘”

Now I am confused by your post on it being that it is in IL.  I am seeing the loophole aspect, but am wondering how big of one there is?  

[pixy0stix]

Jul 14, 2014 14:42:58 GMT -5 ttt said:

I'm not at all siding with Hobby Lobby here but why is she too embarrassed to use the men's room with men around? Presumably this is something she has done before in her life.

Eta I guess this goes to the question of why gender ssegregated restrooms at all.

She shouldn't have to if she is female. End of story.

[lyssbobiss, Command, B613]

I don't know why everyone is so upset. I mean, if you don't like the four kinds of birth control HL discriminates against, you don't have to use them. If a transgendered person can't use the bathroom she belongs in, she has other options.

Oh, wait. No. Because it's bullshit and terrible.

[ESF]

Jul 14, 2014 14:40:32 GMT -5 Velar Fricative said:

Stupid questions - I'm pretty sure transsexual people aren't part of a federally-protected class for discrimination lawsuit purposes, correct? Or does it get included in gender discrimination? Like, she is a trans woman but legally, she's just a woman. So if I as a natural-born woman was somehow forced to only be able to use the men's room at work, that would be grounds for a lawsuit due to gender discrimination (right?). Wouldn't that be the case for this woman even if she wasn't actually born a woman since she is legally a woman?

I probably don't make any sense. But I guess it doesn't matter because corporatepersonhoodreligiousfreedomfuckingSCOTUS.

No federal law explicitly protects transgendered people, but yeah, you are on the right track.

Some attorneys have had some success getting creative with Title VII (the federal employment discrimination statute). For example, they've argued that because a person (lesbian or transgendered) doesn't fit a stereotypical idea what what a "woman" is, she's been discriminated against on the basis of sex.  These theories *sometimes* work, depending on the particular facts in the case and the judge.   I imagine a good attorney would probably try to push an angle under the Americans With Disabilities Act too, for failure to accommodate her medical condition.

[pixy0stix]

Also? I would not have to be forced to go in the one bathroom stall in the mens room. Holy gross, batman.

[twotrue]

I'm confused as to whether she has legally changed her gender or just her name. The article states uses "legal identity changed." I'm on her side but I would think cases like this are better fought if legally she is a female, not just a MTF with a woman's name. kwim?

[pixy0stix]

Jul 14, 2014 14:50:30 GMT -5 twotrue said:

I'm confused as to whether she has legally changed her gender or just her name. The article states uses "legal identity changed." I'm on her side but I would think cases like this are better fought if legally she is a female, not just a MTF with a woman's name. kwim?

I took it to mean that she is legally female.

[heyjude]

Oh what a tangled web SCOTUS weaves when first it practices to deceive.

[ESF]

Jul 14, 2014 14:46:03 GMT -5 teflepi said:

Jul 14, 2014 14:35:37 GMT -5 ESF said:

What is now illegal?

Some states have laws protecting transgendered people, and it sounds as though Illinois is one of them. 

But per the SCOTUS decision, corporations raise "religious freedom" as a defense to try to avoid complying with these kinds of laws.

So, even if it's illegal on paper, in practice, there's now a loop hole.


It sounds to me like Hobby Lobby wanted to keep this issue quiet while its contraception fight made its way through the courts.  Now that that's been resolved favorably, I'm sure their strategy here will be to invoke the RFRA.

This poor woman will probably be fired.

Discriminating against people who are transgendered...everywhere.  Here is what I had read (as I thought it was not widespread):
In case you needed some clarification, transgender discrimination is illegal. According to the Department of Labor, it is considered discrimination based on sex and violates Title VII. The Dept. of Labor is the latest federal agency to clarify their policy on anti-trans discrimination:
“Labor Secretary Tom Perez said, ‘These changes reflect current law. In Macy v. Holder, for example, the Equal Employment Opportunity Commission concluded that discrimination because a person is transgender is sex discrimination in violation of Title VII of the Civil Rights Act of 1964. The Office of Federal Contract Compliance Programs and Civil Rights Center, along with the Employment and Training Administration, will issue guidance to make clear that discrimination on the basis of transgender status is discrimination based on sex. ‘”

Now I am confused by your post on it being that it is in IL.  I am seeing the loophole aspect, but am wondering how big of one there is?  

Huh, I didn't know this.  This is good info! Thanks!

My point about Illinois is that some states have laws that explicitly protect transgendered people.  

Loophole - not sure how big it will be.  Courts now have to consider how compelling the government's interest in imposing on someone's religion with their discrimination laws, and whether the laws are narrowly tailored.  There's going to be a LOT of litigation over the next decade trying to figure out what the limits of the SCOTUS ruling actually are.

If I had to predict, courts will say that companies don't get a free pass on race discrimination (since that was some what explicit in the SCOTUS rulings), but we'll see a lot of companies getting free passes on other kinds of discrimination (since the SCOTUS ruling was notably silent on that).

[wawa]

Jul 14, 2014 14:42:58 GMT -5 ttt said:

I'm not at all siding with Hobby Lobby here but why is she too embarrassed to use the men's room with men around? Presumably this is something she has done before in her life.

Eta I guess this goes to the question of why gender ssegregated restrooms at all.

Well yeah I'm sure she used the mens room before she transitioned, but now when she has the outward appearance of a woman she'd get some awfuly funny looks in the men's room. And what if a customer said something to her? Or complained to management? Most dudes don't care about a chick in the bathroom but she shouldnt have to run that risk to take a pee.

[mominatrix]

transgender discrimination is one of the most... fluid and confusing and legally mystifying areas of discrimination law. I spent MONTHS researching it for purposes of a case before me a long time ago, and it blew my mind...

here's the ways it can go...


Sex/Gender discrimination... lots of love for this theory. The easiest way to conceptualize this is seeing sex or gender as a "mutable" characteristic, and the discrimination occurring because of the change, not the status as one or the other. The best analogies are to one of the other 'mutable' protected classes: religion. So, say an employee was Christian and converted to being Jewish. Employer might have Christian and Jewish employees, but doesn't like somebody changing their religion... that's discrimination based on religion. Same as this with Sex discrimination.

Disability (ADA) Discrimination... beloved by lawyers, not so much by the trans community. This theory hinges on using the fact that in order to transition, individuals need a diagnosis of Gender Dysphoria. The theory is that, under the ADA, Gender Dysphoria is a condition that substantially impairs a major life activity. As such, ADA protected. What I (as a lawyer) like about this is that it requires employers not just to NOT discriminate, but to ACCOMMODATE the disability. Hence, HL could have a "only bio women in the womens' restroom" policy, but they'd have to accommodate the disability by allowing use to transgendered individuals. The argument against this theory is that it medicalizes and stigmatizes transsexuality.  (edit: gaaah: I forgot the ADA explicitly excludes... we're talking state ADA analogues here, which mostly don't. MY bad.)

Sexual Orientation discrimination (NOT federal)... this will vary from state to state, locality to locality. Some will explicitly cover transsexuality, some will explicitly not cover it (and some have bathroom-specific language). Many (most) use "orientation" language, which is tricky when it comes to trans coverage.





In terms of this. Yeah.
There are going to be a shitton of companies using the HL decision to do all kinds of crap.
My guess is it'll be at least a decade or two of really really shitty employer actions before it gets (hopefully) cleaned up.

[StrawberryBlondie]

I really don't understand why transgender issues always seem to be about what bathroom is appropriate to use. Has there been a wave of transgender,-related bathroom violence and/or rapings I haven't heard about?

[aurora]

When I worked in Denmark all of the bathrooms were single-stall co-ed (or a small cluster of single-stalls, each with individual toilet/sink/locking door). People were very respectful and clean and it worked out well. I actually don't get why we're so anti adults sharing restroom facilities in the U.S. I think there were about 60 people working in my department, with ~2/3 of those being men.

Obviously this wouldn't apply to large public areas where you have huge restrooms with lots of stalls.

[pixy0stix]

Jul 14, 2014 15:10:34 GMT -5 aurora said:

When I worked in Denmark all of the bathrooms were single-stall co-ed (or a small cluster of single-stalls, each with individual toilet/sink/locking door). People were very respectful and clean and it worked out well. I actually don't get why we're so anti adults sharing restroom facilities in the U.S. I think there were about 60 people working in my department, with ~2/3 of those being men.

Obviously this wouldn't apply to large public areas where you have huge restrooms with lots of stalls.

DH and I were talking about how it would nice if all restrooms were like women's restrooms with stalls. He said it would cut down on a lot of dick staring and weird-ass comments men make to each other in the bathroom.

[josieposy]

Well now this is convenient timing.

Bastards.

[elleblue]

Jul 14, 2014 14:50:30 GMT -5 twotrue said:

I'm confused as to whether she has legally changed her gender or just her name. The article states uses "legal identity changed." I'm on her side but I would think cases like this are better fought if legally she is a female, not just a MTF with a woman's name. kwim?

If she's living as a woman, that's good enough for me. I know some won't see it that way, but considering there's usually a lot of steps (and time) between first deciding to transition and completing it with surgery, the only way to really address it is to treat anyone living as a specific gender, as that gender, kwim?

[blink]

Jul 14, 2014 15:02:49 GMT -5 mominatrix said:

Sex/Gender discrimination... lots of love for this theory. The easiest way to conceptualize this is seeing sex or gender as a "mutable" characteristic, and the discrimination occurring because of the change, not the status as one or the other. The best analogies are to one of the other 'mutable' protected classes: religion. So, say an employee was Christian and converted to being Jewish. Employer might have Christian and Jewish employees, but doesn't like somebody changing their religion... that's discrimination based on religion. Same as this with Sex discrimination.

I don't have anything to add, except that this was really, really helpful and insightful. 

[mominatrix]

Jul 14, 2014 15:27:07 GMT -5 @dyermaker said:

What would they do if they had hired this woman after transition? Do they inspect the genitalia of all their employees before bathroom use? This woman is being discriminated against because she has identified as a transsexual and since they would let her use the female restroom if she had surgery, the only way to validate that would be accessing confidential medical records or a strip search. Since the employee has privacy rights over her records and person, this is so unfounded.

the case I had, the individual was interviewed and hired as a woman, did all the paperwork as a woman, was working as a woman...  after a couple days manager told her she had to fill out some paperwork that required she send a copy of her drivers' license or somesuch to corporate. THAT had a M instead of an F... 

so... she started to get disciplinary notices for 'violating' the dress code (which allowed female employees to wear skirts and certain kinds of jewelry male employees couldn't).  One, two, three notices for violating dress code, and terminated.