Topic of the Week Gender Identity Discrimination
Gender identity discrimination in the workplace occurs when an employer discriminates against an employee because of their gender identity. Discrimination can include terminating a transgender employee after the employer finds out about the employee's gender identity or planned transition; denying a transgender employee access to workplace restroom facilities available to other employees; requiring a transgender employee to use a restroom not consistent with the employee's gender identity or presentation; harassing a transgender employee; permitting and/or refusing to investigate claims of harassment by coworkers and supervisors; or any other negative employment action taken because of an employee's gender identity.
1. What is the difference between gender identity discrimination and sexual orientation discrimination? Am I protected by sexual orientation discrimination laws?
Sexual orientation as a legal concept is generally understood to refer only to whether a person is homosexual (gay), heterosexual (straight), or bisexual. Not all transgender people are gay. In fact, many transgender people identify as straight; many transgender women have male partners and many transgender men have female partners. When transgender people face discrimination, it often has no relationship to their sexual orientation.
Twenty-two states and the District of Columbia make it illegal to discriminate in employment on the basis of sexual orientation. Of these, Nineteen and the District of Columbia explicitly include transgender and transsexual people. In other states where courts have analyzed the state's sexual orientation anti-discrimination law, courts have narrowly interpreted the laws to exclude gender identity on the grounds that there is no evidence that gender identity was intended to be included in the law's definition of sexual orientation. Maffei v. Kolaeton Industry, Inc., 626 N.Y.S. 2d 391 (N.Y. Sup. Ct. 1995) (holding that the definition of sexual orientation in New York City ordinance does not include transsexualism); Underwood v. Archer Management Services, Inc., 857 F. Supp. 96, 98 (D.D.C. 1994) ("a conclusory statement that [transsexual plaintiff] was discharged on the basis of transsexuality . . . does not constitute a claim for relief on the basis of . . . sexual orientation") However, in all three of these locales, discrimination on the basis of gender identity is now illegal under a state law basis other than sexual orientation: Connecticut (sex); New York (sex); District of Columbia (personal appearance)". For more information about states that have anti-discrimination laws protecting transgender individuals see lgbtmaps.org.
If you are a transgender person who is considering bringing a discrimination claim in a state or city with a sexual orientation discrimination ordinance 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
"What the LGBT community want is [for being LGBT] to be ordinary so that you are seen to be valued on merit. When our employees don’t have to think twice about struggling for the same benefits, recognition, or are afraid of being safe, then productivity goes up."
–Claudia Brind-Woody, VP & Managing Director, IBM
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from The National LGBT Workers Center
BARRIERS FOR LGBT EMPLOYEES
A recent study suggests that nearly 50% of LGBT workers remain closeted at work and fear being stereotyped or jeopardizing professional connections. Anti-LGBT bias is highly prevalent in the workplace and creates massive hurdles in the day-to-day:Hiring/Firing
Wages Despite comprising
- 27% of transgender workers reported being fired, not hired, or denied promotion in 2016-2017.
- 4.5% of adults in the United States, LGBT adults comprise 6.2% of people who earn less than $36,000 a year.
- 1 22% of LGBT workers were not paid or promoted at the same rate as colleagues.
- Gay men report higher salaries than lesbian women, but both report less income than non-LGBT colleagues.
- Only 1 out of 5 U.S. companies offer paid family leave for LGBT employees.
- Only 58% of Fortune 500 companies offer transgender-inclusive benefits.