Lifting the Gender Identity Barrier to Employment Opportunities

The topic of gender identity has been the subject of both media and legislative attention recently. In the workplace, discrimination is a major contributor to the especially high rates of unemployment and underemployment faced by transgender people. These workers are often fired, paid less or harassed because of who they are. So it is not surprising that federal standards and state laws are being crafted to protect from workplace discrimination individuals that are transgender or express their gender in a non-conforming way.

Federal Law
There is no federal law that explicitly protects the transgender or LGBT communities from employment discrimination. Instead, some courts have relied on Title VII, the federal law that prohibits sex discrimination, to conclude that discrimination on the basis of sexual orientation and gender identity violates federal law. This year, the Equal Employment Opportunity Commission (EEOC) conclusively determined that discrimination based on an individual’s sexual orientation violates Title VII. It has recognized transgender Title VII protection since 2012. Earlier this year, federal regulations went into effect prohibiting discrimination on the basis of sexual orientation and gender identity by federal contractors.

State Law
Many state and local governments also prohibit job discrimination based on gender identity and/or expression. In March, Utah become the 19th state to prohibit discrimination in employment based on gender identity or sexual orientation. Over two hundred cities and counties also have laws that prohibit employment discrimination on the basis of gender identity and sexual orientation.

Moving Forward
As states continue to close the gap on protection of gender identity and expression in the workplace, employers should ensure that their policies and procedures are consistent with current federal, state and local laws. This means updating employee handbooks, job announcements and diversity-related materials to include “gender identity or expression” and “sexual orientation” among other legally protected classes. Employers may need to reevaluate benefit programs. Employers should also ensure that discrimination and harassment training is sensitive to transgender, gender expression, and sexual orientation distinctions.

Employers also need to consider practical matters such as uniforms, dress code and access to restroom facilities. For example, OSHA recommends all employees have access to bathrooms that correspond to their gender identity or to single-occupant, gender-neutral restrooms. State laws may be more specific. Employers should be aware of gender stereotyping in appearance and dress standards and make changes accordingly. Creating a workplace free from discrimination is not simply a matter of legal compliance. A healthy workplace depends on treating all employees with dignity and respect.

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