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Workplace Fairness Weekly

Workplace Fairness Weekly (6/22/20)

Topic of the Week  Gender Identity Discrimination

  • What federal law covers gender identity discrimination?
  • What is the difference between gender identity discrimination and sex discrimination? Am I protected by sex discrimination laws?
  • What if I'm being harassed because of my gender identity?

What federal law covers gender identity discrimination?

Currently there is no federal law that universally and explicitly provides protection for LGBT workers, and fewer than half of states have laws that protect workers based on sexual orientations and gender identity/expression. Discrimination based on gender identity is not specifically prohibited by the federal laws that generally apply to discrimination in employment. Discrimination laws specifically prohibit discrimination based on race, color, sex, religion, national origin, age, and disability.

The Employment Non-Discrimination Act currently being proposed in Congress is federal legislation which explicitly prohibits discrimination in the workplace based on sexual orientation or gender identity. The Act is modeled after current civil rights legislation like the Civil Rights Act of 1964 and the Americans with Disabilities Act. ENDA would protect transgender workers from being denied jobs and promotions, fired, demoted, or otherwise discriminated against solely on the basis of their gender identity.

As recently as December of 2014, the federal government has stated that in cases against state and local public employers the Department of Justice will interpret the Civil Rights Act of 1964 to protect people from discrimination based on gender identity.

What is the difference between gender identity discrimination and sex discrimination? Am I protected by sex discrimination laws?

Sex discrimination is treating an applicant or employee unfavorably because of that person's sex, or affiliation with an organization or group associated with a particular sex. The law forbids discrimination based on sex when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits and any other term or condition of employment. Gender identity discrimination is more specific to people who don't conform to stereotypes of gender identity and/or gender expression. For example:

  • Albert identifies himself as a male. His peers continually refer to him directly as "Ms" and he repeatedly hears comments from peers about himself using female pronouns such as "she" and "her". Albert has asked that people address him appropriately but most make no effort; or
  • You are hired for a new job and subsequently inform your new employer that you will be transitioning. After hearing this your employer tells you that the position you were hired for is no longer available.

Until recently, federal courts have uniformly held that transgender people are not protected under Title VII (the law which makes sex discrimination illegal) on the ground that Congress did not intend for the term "sex" to include being transgender.

Recently, however, some courts have concluded that transgender persons are protected from discrimination under Title VII and other sex discrimination statutes. These decisions are based upon an older U.S. Supreme Court case that considers discrimination based on gender stereotyping to be illegal sex discrimination prohibited by Title VII.

This issue has developed similarly in state courts as in federal courts. In the past, employment gender identity discrimination cases brought under state laws prohibiting sex discrimination have been unsuccessful, including cases in Connecticut, Pennsylvania, and the District of Columbia. More recently, however, some state courts and state administrative agencies have indicated a willingness to depart from older Title VII precedents and to interpret state and local sex discrimination laws to include transgender people. These states and cities include Massachusetts, New York City, Connecticut, Hawaii, Vermont and New Jersey.

If you have been discriminated against because of your gender identity and/or gender expression, you may wish to consult with a local attorney to determine whether you can and/or should bring a claim for sex discrimination under federal or state law.

What if I'm being harassed because of my gender identity?

Harassment is a form of discrimination which can also rise to the level of a hate crime. It can include inappropriate comments, jokes, and threats. In 2009 a federal law protecting transgender people from hate crimes was passed in Congress and signed by President Obama. Some states have transgender-inclusive hate crime laws. These laws also prohibit sexual harassment, which is a form of discrimination that occurs when a boss, supervisor, or co-worker subjects you to hostile, offensive or intimidating behavior because of your sex that is so severe or pervasive that it interferes with your ability to perform your job.

Some courts and administrative agencies have indicated a willingness to interpret state and local sex discrimination laws to include transgender people. The U.S. Supreme Court has also allowed sexual harassment claims under federal law where the person responsible for the harassment and the victim of harassment are of the same sex, as long as the harassment was because of sex. Because sexual harassment is a form of sex discrimination prohibited under these laws, it may seem logical to assume that a transgender employee harassed because of his or her gender identity would be able to file a harassment claim, as long as the harassment was because of sex. However, the law is not yet fully developed in this area and it is unclear how a court or administrative agency would respond to this type of legal claim.

If you are a transgender person considering bringing a harassment claim in a state or city with a discrimination law that does not specifically include gender identity, you should consult with a local attorney as well as a person familiar with the history of the state law or city ordinance to determine whether this strategy is likely to be successful.

Thought of the Week

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Weekly Comic by Jerry King

Weekly Comic by Jerry King

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    List of the Week

    from National Center for Transgender Equality (NCTE)

    Transgender Employment Statistics

    • More than one in four trans workers have lost a job due to bias
    • Over three-fourths of trans workers reported that they’ve experienced discrimination at work.
    • 30% of trans workers report experiencing harassment at work.
    • Trans workers experience unemployment at a rate three times higher than those in the general population do.
    • For trans workers of color, the unemployment rate is four times higher.

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