What the Protected Class, Gender Identity, Means to Employers

Recap of Where Gender Identity is a Protected Class

Nineteen states (Massachusetts, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Utah, Vermont and Washington) and the District of Columbia expressly prohibit discrimination based upon gender identity, in both private and public employment.

Six states (Indiana, Kentucky, Michigan, Pennsylvania and Virginia) have an executive order, administrative order, or personnel regulation prohibiting discrimination in public employment based on sexual orientation and gender identity only.

One state, New York, prohibits discrimination based on gender identity in public employment only.

Ohio previously included gender identity as a protected class, until the Governor allowed the executive order covering it to expire in January 2011.

In February 2015, Kansas’s Governor rescinded an executive order prohibiting discrimination based on sexual orientation and gender identity, introduced by the previous Governor.

Eighteen states have no protection for gender identity or sexual orientation.

In December of 2014, a new rule prohibiting discrimination on the bases of sexual orientation and gender identity in the federal contracting workforce was announced by the U.S. Department of Labor. The rule implemented Executive Order 13672, which was signed by President Obama in July 2014.

The Equal Employment Opportunity Commission (“EEOC”), has held that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex and therefore is covered under the federal law known as Title VII of the Civil Rights Act of 1964.

The EEOC has also found that claims by lesbian, gay, and bisexual individuals alleging sex-stereotyping state a sex discrimination claim under Title VII.

But there is no specific statute protecting gender identity (or sexual orientation) under Title VII.

The Massachusetts Law Making Gender Identity a Protected Class

Massachusetts amended its employment discrimination law and made gender identity a protected class effective July 1, 2012 (3 years ago). Since then, there has been only one case decided by the Massachusetts Commission Against Discrimination (“MCAD”), where it was held that an employee had been discriminated against by her employer because of her gender identity. The case was decided in January 2015.

The outcome was a significant monetary award against the employer, including

  • A back pay award of $154,850;
  • Emotional distress damages of $25,000; and
  • 12% interest from December of 2010 (when the charge was filed by the employee with the MCAD.

The case has been appealed and it remains to be seen what the outcome will be.

What, specifically, is covered under the Massachusetts law is important. It certainly includes individuals who have transgendered from their biological gender to their chosen gender, but it provides protection for many more individuals as well, under several different circumstances.

As defined under the law, gender identity means “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth. Gender-related identity may be shown by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held as part of a person’s core identity; provided, however, that gender-related identity shall not be asserted for any improper purpose.”

What the Law May Mean to Employers and Employees

Pursuant to this definition, it is clear that an individual who has not had gender reassignment surgery, and who is taking steps towards such an eventuality, or exploring doing so, would be protected. This could involve the employee living as a female; presenting as a female; and, for a period of time, undergoing hormone treatments to permit the employee’s body to develop characteristics consistent with the employee’s chosen gender. It could also include the employee asking to be addressed by a different name, consistent with the chosen gender.

For the employer’s part, permitting the employee to present at work as the chosen gender, dressing, being referred to, and treated consistent with the chosen gender is required by the law. This could involve a myriad of things such as providing new business cards; having photographs of the employee that appear on the employer’s web site changed; formulating a communication to clients and customers, or those individuals with whom the employee regularly interacts; and educating the workforce so that co-workers are informed and act consistently with the law. Typically, these communication issues involve input by the employee who is transitioning, as well as the employee’s medical treatment providers who can be of great assistance through the process.

Other changes may be necessary in the workplace, such as permitting the employee to use the restroom that is consistent with the employee’s chosen gender. Frequently, this is something that employers struggle with, for among other reasons, the resistance sometimes offered by other employees to having the employee who is transitioning use the same restroom as they do, at least until such time as the gender reassignment surgery has been completed. This issue can be the stuff of evidence of discriminatory treatment, however, and should be analyzed and handled very carefully.

It is reported that among the many forms of discrimination advocates for transgender men and women say they face on the job, bathroom restrictions have been among the most emotionally painful.

In June, the EEOC sued Deluxe Financial Services, a check-printing company based in Minnesota, for refusing to let a transgender woman use the women’s restroom. This lawsuit, on behalf of Britney Austin, also alleges that her managers and co-workers intentionally referred to her with male pronouns and made fun of her appearance. It is the first workplace discrimination lawsuit the agency has filed against a private employer on behalf of a transgender woman.

The Britney Austin suit follows a decision by the EEOC in April ordering the Department of the Army to pay damages to a transgender employee, Tamara Lusardi, a disabled veteran who transitioned from male to female on the job in 2010. The evidence included that Ms. Lusardi was told she could not use the same restroom as other female employees. Instead, she was required to use a single-person, gender-neutral restroom out of concerns that other employees might feel uncomfortable sharing a restroom with her.

On June 1 the federal Department of Labor’s Occupational Safety and Health Administration (“OSHA”) issued a publication, which does not have the force and effect of law, strongly urging employers to give transgender employees access to bathrooms that correspond to their gender identity, marking a new policy front in the fast-moving campaign for transgender equality.

“… It is essential for employees to be able to work in a manner consistent with how they live the rest of their daily lives, based on their gender identity,” OSHA wrote in a four-page Guide to Restroom Access for Transgender Workers recently posted on the agency’s Web site.

The guide is explicit that restroom access for transgender workers is both a civil rights issue and a health and safety one.

“Restricting employees to using only restrooms that are not consistent with their gender identity, or segregating them from other workers by requiring them to use gender-neutral or other specific restrooms, singles those employees out and may make them fear for their physical safety,”

OSHA wrote, calling its guidance “Best Practices” for employers throughout the country.

An estimated 700,000 adults in the United States are transgender, OSHA says, citing the Williams Institute at the University of California at Los Angeles. It is clear that employers have legal obligations to their employees based upon their gender identity. Employers would be wise to revisit their policies and engage in internal discussion to determine best practices in the workplace to insure the rights of all protected persons are upheld.

MARY E. (BETH) O’NEAL

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