Monday Morning Minute
In This Issue
Trump Labor Board Proposes Employee Free Choice Election Protections
Part 2 - Harris Funeral Home v. EEOC- Sex Stereotyping
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                  August 26, 2019


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In the middle of August, the National Labor Relations Board (NLRB) published a Notice of Proposed Rulemaking to amend Part 103 of the NLRB's Rules and Regulations. The proposed amendment, published in the Federal Register, seeks public comment on amendments that will provide better protection to employee election rights to have a free choice on whether or not to be represented by a union for collective bargaining with employers.  Three amendments are proposed:
  1. Blocking Charges: The amendment seeks to replace the current blocking charge policy with a "vote-and-impound" procedure. Elections would no longer be blocked by pending unfair labor practice charges, perhaps for years.  Rather, the amendment would provide for voting, and the ballots would be impounded until the unfair labor practice charges are resolved. 
  2. Voluntary Recognition Bar: The Board proposes returning to the rule of Dana Corp. (2007), which provides that for voluntary recognition to bar a subsequent representation petition-and for a post-recognition collective-bargaining agreement to have contract-bar effect- the unit employees must receive notice that voluntary recognition has been granted, and provided a 45-day open period within which to file an election petition.
  3. Section 9(a) Recognition in the Construction Industry: The rule amendment proposes changes in the construction industry, where less-than-majority employee support bargaining relationships established under Section 8(f) cannot bar petitions for a Board election.  To bar an election based upon an alleged Section 9(a) relationship, positive evidence of majority employee support will be required, and cannot be based on contract language alone, overruling Staunton Fuel (2001).
Board Chairman John F. Ring stated: "There are few more important responsibilities entrusted to the NLRB than protecting the freedom of employees to choose, or refrain from choosing, a labor organization to represent them, including by ensuring fair and timely Board-conducted secret ballot elections. We believe that the changes we propose today further the goal of protecting this vital freedom."

Public comments must be submitted within 60 days of the Notice's publication in the Federal Register.  Please contact Spognardi Baiocchi, LLP if you would like to retain the firm to submit comments on behalf of your organization.    

There are two legal questions presented in the Supreme Court case Harris Funeral Homes vs. the EEOC. The two questions are whether Title VII prohibits discrimination against transgender people based on:
  1. their status as transgender; or
  2. sex stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
Last week we discussed why Title VII may not protect transgender status based upon its original passage and lack of any current amendment to expand the protections of Title VII (similar to the issue of pregnancy).  This week we will discuss sex stereotyping in light of this matter.
What is sex stereotyping ? Generally, sex stereotyping occurs when a person is discriminated against because of someone's else's beliefs of how a person should look, behave or act based on his or her gender; and then employment decisions are made based on those beliefs. It was first recognized by the Supreme Court as part of Title VII in Price Waterhouse v. Hopkins (May 1, 1989).

Sex stereotyping is but one way to prove an employment action was motivated by sex in violation of Title VII. However, the Price Waterhouse case coupled with Oncale require that in order to prove discrimination because of sex, there must be a showing of disadvantageous treatment of members of one sex relative to similarly situated members of the other sex.
How did sex stereotyping come up in the Harris Funeral Home case ? The Plaintiff argues that transgender-status discrimination inherently constitutes sex stereotyping because it necessarily entails considering sex and how each sex is supposed to act. (By way of history, the funeral home in this matter had strict dress codes for men and women. The Plaintiff, Stephens, born male, began to identify as a woman. After identifying as a woman, Stephens informed the funeral home that she would be undergoing the physical transformation required to become a female; and as such, would begin dressing for work under the required dress code for woman).
However, the DOJ argues in its brief that one cannot only set forth sex stereotyping as proof for discrimination, a Plaintiff must also argue and prove that similarly situated members of the opposite sex were also treated more favorably and that Stephens did not allege or prove this:
A transgender plaintiff therefore cannot prevail in a Title VII suit simply by showing that an employer relied on sex stereotypes. The plaintiff must show that the employer treated similarly situated members of the opposite sex more favorably. Like any other plaintiff, a transgender person may use evidence of sex stereotyping in making that showing. But the individual's transgender status does not alter the legal standard.   Here, Harris Homes did not discriminate against Stephens based on sex stereotypes in violation of Title VII. It terminated Stephens for refusing to comply with Harris Homes' sex-specific dress code. Since the court of appeals did not address and Stephens does not challenge that dress code in this Court, it must be assumed that the dress code burdens men and women equally. As a result, neither Stephens nor the Sixth Circuit has identified evidence that Harris Homes treated Stephens, a biological male, less favorably than similarly situated females. ...

(DOJ Brief, August 2019, p. 14)
Sex stereotyping is a little-known nuisance of Title VII but it is one that employers should take notice of and address as it can be very subtle in its application but cause the company great harm in litigation. Ensuring that processes and procedures are in place, including training for managers and supervisors who make employment related decisions goes a long way in preventing protracted and very public litigation. 

Contact any Spognardi Baiocchi Attorney of your choice for further discussion on this matter. 

SPOGNARDI BAIOCCHI llp is a law firm dedicated to partnering with companies of all sizes to address the full spectrum of legal concerns for its business.  Our commitment is to find common sense solutions that fit each clients' unique situation to labor, employment, human resources and general business needs. 

With over 50 combined years of experience among its 2 founding partners in these areas, we can assist businesses in developing custom solutions to today's tough issues.  And as litigators, who combined have over thousands of trials  "under their belts" before state and federal courts as well as administrative agencies (such as the NLRB) you will find no better advocate and partner. 


For more information on the firm, please go to our website at or Lisa at