Articles Posted in Gender Identity/Expression Discrimination

Federal RegisterNew York City employment statutes continue to lead much of the country in the scope of protection provided for workers, particularly in areas like gender identity and gender expression. Employment laws and regulations at the federal level, however, seem to be moving in the opposite direction. Two events of the past few months affecting gender identity discrimination might offer an idea of the legal challenges ahead. The new administration in the White House has left in place an executive order (EO) issued by former President Obama dealing with sexual orientation and gender identity discrimination, but it has rescinded another EO that facilitated enforcement of that order. An unexpected announcement regarding transgender people serving in the military, meanwhile, has led to at least one lawsuit in Washington.

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President Obama issued EO 13672 in July 2014. 79 Fed. Reg. 42971 (Jul. 23, 2014). The order amended existing prohibitions on various forms of employment discrimination by federal contractors, adding sexual orientation and gender identity as protected categories. Some provisions took effect immediately, while others took effect in 2015. Shortly after issuing that EO, the White House issued EO 13673, entitled “Fair Pay and Safe Workplaces,” which outlined procedures for ensuring compliance by federal contractors. 79 Fed. Reg. 45309 (Aug. 5, 2014); see also 81 Fed. Reg. 58807 (Aug. 26, 2016), 81 Fed. Reg. 58653 (Oct. 25, 2016). This EO required contractors to make disclosures regarding recent judgments or other adjudications under various statutes, as well as pending complaints.

restroom signIn April 2016, a federal appellate court issued a ruling that had the potential to support New York gender identity employment discrimination claims under federal law. G.G. ex rel. Grimm v. Gloucester Cty. School Bd., 822 F.3d 709 (4th Cir. 2016). The court held that the federal statute addressing sex discrimination in education applied to a claim of discrimination on the basis of gender identity. Employment laws in New York City and other jurisdictions expressly prohibit gender identity and gender expression discrimination, but federal employment law does not mention it. The U.S. Supreme Court granted certiorari in the case last August. Earlier this year, it vacated the appellate court’s ruling and remanded the case, noting that the lower court’s decision relied on a federal administrative interpretation of the law that had since been revoked. The Supreme Court may still hear the case, but only after the appellate court reviews it again.

Under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., it is unlawful for employers to discriminate on the basis of sex and other factors. Several federal courts, at both the district and the appellate levels, have ruled that Title VII’s sex discrimination provisions apply to gender identity and gender expression claims. This is also the position of the Equal Employment Opportunity Commission (EEOC), based on its own rulings. The U.S. Supreme Court, however, has not ruled on this question.

The statute at issue in G.G. is Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. Much like Title VII, Title IX’s provisions on sex discrimination make no specific mention of gender identity or gender expression. The G.G. case focused on a regulation requiring schools to provide “comparable facilities,” including restrooms, to students of different sexes. 34 C.F.R. § 106.33. In a 2015 opinion letter, the U.S. Department of Education (DOE) interpreted this rule to mean that schools must allow transgender students to use the restroom that matches their gender identity. The U.S. Department of Justice began enforcing this requirement in the same year, and the two departments issued a joint guidance document in 2016.

dominoesGender identity and gender expression are protected categories under New York City’s employment discrimination statute. Federal law does not expressly address this type of discrimination, and the Supreme Court has not ruled on the issue. Several federal courts have taken steps toward recognizing this as a federal claim, and the Equal Employment Opportunity Commission (EEOC) has recognized it as a valid claim in its own rulings. Recent changes in Washington, however, have raised concerns about the EEOC. After the EEOC appealed the dismissal of a gender identity discrimination lawsuit to the Sixth Circuit, the complainant filed a motion to intervene on her own behalf in early 2017. She cited concern “that the EEOC may no longer adequately represent her interests going forward.” EEOC v. R.G. & G.R. Harris Funeral Homes, No. 16-2424, motion to intervene (6th Cir., Jan. 26, 2017). The court granted the motion in March.

The U.S. Supreme Court has held that Title VII of the Civil Rights Act of 1964 prohibits discrimination that derives from an employee or job applicant failing to conform to common stereotypes about how people of their particular sex or gender should look or act, also known as “sex stereotyping.” Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Several federal courts and the EEOC have cited Price Waterhouse in ruling that gender identity and gender expression discrimination constitute unlawful sex stereotyping under Title VII. See, e.g., Macy v. Holder, App. No. 0120120821, dec. (EEOC, Apr. 20, 2012).

The complainant in R.G. & G.R. Harris, a transgender woman, alleged discrimination on the basis of gender identity and expression. The complainant informed the defendant of her intention to transition from male to female after several years of employment there. Although she reportedly stated that she would abide by the dress code for female employees, the defendant fired her several weeks later. The EEOC filed suit the following year.

gender equalityThe rights of transgender people have been the subject of multiple victories and setbacks in the past few years. With regard to protections against employment discrimination, New York City law expressly includes gender identity and gender expression as protected categories, as do laws in many other cities and states. At the federal level, however, Title VII of the Civil Rights Act of 1964 does not specifically mention gender identity or gender expression. Many advocates for transgender rights argue that certain judicial interpretations of Title VII’s prohibition on sex discrimination apply its protections to both sexual orientation and gender identity and expression. This argument has had some success at the federal appellate level with regard to sexual orientation. The Equal Employment Opportunity Commission (EEOC) has adopted this view for both types of discrimination. At least one case currently pending in a Circuit Court of Appeals is making a similar argument about the applicability of Title VII to gender identity and gender expression.

Justice William Brennan interpreted Title VII as a clear statement by Congress “that sex, race, religion, and national origin are not relevant to the selection, evaluation, or compensation of employees.” Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989). The plaintiff in that case claimed that she was denied partnership because she failed to conform to common stereotypes about how women should behave. The evidence included a statement by a partner advising her to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Id. at 235. The court held that this sort of “sex stereotyping” was an unlawful form of sex discrimination under Title VII.

Many advocates and judicial opinions have noted the resemblance of sexual orientation discrimination to the type of “sex stereotyping” addressed in Price Waterhouse. Gay and lesbian employees, the argument goes, do not fit the stereotype of whom individuals should love. Some courts have expressed sympathy for this argument, while also stating that their hands are tied without further action by Congress. See, e.g. Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 265 (3d Cir. 2001). Although it has yet to receive much judicial scrutiny, the applicability of the “sex stereotyping” argument to gender identity and expression is not hard to see.

Central ParkSexual harassment in the workplace violates city, state, and federal employment laws in New York City. Under all of these laws, sexual harassment is viewed as a type of sex discrimination. An underlying assumption in many, but certainly not all, cases is that the perpetrator is attracted to the complainant. Employment laws in New York City protect a worker in this sort of scenario, but what about when an adverse employment action is based on a lack of attraction, or other purported concerns about an employee’s appearance? To put that in blunter terms, can an employer fire an employee for being “ugly”?

No employment statute in New York expressly mentions appearance, but other categories might apply in some situations. The New York City Human Rights Law (NYCHRL) prohibits employment discrimination on the basis of sex, gender identity or gender expression, age, disability, and other factors. The New York State Human Rights Law (NYSHRL) provides many of the same protections. Title VII of the federal Civil Rights Act of 1964 lists fewer protected categories, but the U.S. Supreme Court has established fairly broad protections under the umbrella of sex discrimination. The Americans with Disabilities Act (ADA) of 1990 and the Age Discrimination in Employment Act (ADEA) of 1967 also address employment discrimination.

Addressing this issue from a legal standpoint is difficult, since it is largely subjective. Beauty, as they say, is in the eye of the beholder, and some employers have successfully argued that appearance standards are a bona fide occupational qualification exempting them from discrimination laws. This has occurred in cases of men applying at restaurants that only hire female servers and women fired for gaining too much weight. All of these cases arguably involve standards of attractiveness or lack thereof. Several courts have also held that firing a female employee for being too attractive—which borders on an argument that termination was necessary to avoid sexual harassment—is not unlawful sex discrimination. Still, termination for being “ugly” might violate existing laws in certain situations.

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IdentityNew York City’s anti-discrimination statute protects workers against discrimination based on gender identity and gender expression, but these protections are far less certain in other jurisdictions and under federal laws. The Equal Employment Opportunity Commission (EEOC) has taken the position that the sex discrimination provisions of Title VII of the Civil Rights Act of 1964 cover gender identity discrimination, and some federal courts have also reached this conclusion. Other courts have specifically rejected this view. One federal district court took the unusual step of rejecting a gender identity discrimination claim on the basis of the federal “religious freedom” statute. EEOC v. R.G. & G.R. Harris Funeral Homes, No. 2:14-cv-13710, order (E.D. Mich., Aug. 18, 2016). While the case is likely to be reversed on appeal, it is important to understand the development of the law on this issue.

Title VII prohibits employment discrimination on the basis of various factors, including sex. 42 U.S.C. § 2000e-2(a). The Supreme Court has held that an employer engages in unlawful sex discrimination when it makes decisions based on “sex stereotyping,” which includes “evaluat[ing] employees by assuming or insisting that they matched the stereotype associated with their group.” Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989). This decision has influenced numerous cases dealing with gender identity discrimination.

The EEOC has generally taken the view that Title VII’s prohibition on sex discrimination includes gender identity. See Macy v. Holder, Appeal No. 0120120821, decision (EEOC, Apr. 20, 2012). The Sixth Circuit Court of Appeals, whose jurisdiction includes the court that decided R.G. & G.R. Harris Funeral Homes, has held that Price Waterhouse “eviscerated” narrower interpretations of “sex discrimination” under Title VII. Smith v. City of Salem, 378 F.3d 566, 573 (6th Cir. 2004); see also Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005).

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transgender flagNo federal statute expressly protects workers from discrimination in employment on the basis of gender identity. Over the past several years, however, the Obama administration and several federal agencies have recognized protections against discrimination for transgender workers. This began with a ruling by the Equal Employment Opportunity Commission (EEOC), which found that gender identity discrimination may be considered sex discrimination under Title VII of the Civil Rights Act of 1964. Next came an executive order prohibiting gender identity discrimination in federal employment, as well as a memorandum from the Department of Justice (DOJ) and a new set of rules from the General Services Administration (GSA). These advances may be short-lived, with a new administration set to take over in January 2017, but they are worth reviewing.

Title VII prohibits employment discrimination on the basis of sex and other factors. 42 U.S.C. § 2000e-2(a). The EEOC has found that this includes gender identity discrimination. Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821 (Apr. 12, 2012). In a later case, the agency ruled that Title VII requires employers to allow employees access to common restrooms matching their gender identity, and providing a single-user restroom specifically for transgender employees does not satisfy this requirement. Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, (Mar. 27, 2015). It further held that an employer cannot, as a condition of granting these rights, require a transgender employee to provide proof of any medical procedure related to gender transitioning. These rulings apply to EEOC proceedings but are not necessarily binding on federal courts.

In July 2014, President Obama signed Executive Order 13672, which extended employment discrimination protection to transgender employees of the federal government and government contractors. The order amended two earlier executive orders. Executive Order 11246, issued by President Lyndon B. Johnson, prohibited employment discrimination within the federal government and by federal contractors based on Title VII categories. The Nixon administration amended this order with Executive Order 11478. Additional amendments added sexual orientation as a protected category, and this most recent order added gender identity.

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New York streetA lawsuit filed in a New York City federal court against a major supermarket chain alleges gender identity discrimination, hostile work environment, and retaliation. King v. Whole Foods Market Grp, Inc., No. 1:16-cv-02453, complaint (S.D.N.Y., Apr. 2, 2016). The plaintiff, a transgender man, claims that co-workers and supervisors routinely mocked and harassed him regarding his gender identity. He further claims that supervisors and managers retaliated against him after he complained about the harassment, resulting in a “toxic environment” that compelled him to quit his job. Id. at 6. His lawsuit asserts causes of action under the New York City Human Rights Law (NYCHRL) and the New York State Human Rights Law (NYSHRL).

Employment discrimination on the basis of sex or gender is unlawful under anti-discrimination statutes at the federal level, in every state, and in cities and counties all over the country. Both the NYSHRL and the NYCHRL expressly prohibit gender discrimination in employment. N.Y. Exec. L. § 296(a), N.Y.C. Admin. Code § 8-107(1)(a). Discrimination based on gender identity does not necessarily fall under prohibitions on gender discrimination. Court decisions in several jurisdictions have held that gender identity discrimination is a form of unlawful sex or gender discrimination, but this view of anti-discrimination statutes is not yet widespread.

Unlike many anti-discrimination laws, the NYCHRL expressly addresses gender identity discrimination. It defines “gender” to include a person’s “actual or perceived sex” and their mode of appearance or behavior, regardless of whatever is “traditionally associated with the legal sex assigned to that person at birth.” N.Y.C. Admin. Code § 8-102(23).

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restroom-signLegal protections against discrimination based on gender identity and expression have made some progress in recent years, but they have also seen some highly publicized setbacks. Some state and local anti-discrimination statutes include gender identity and expression as protected categories, but no federal statute specifically mentions them. The Fourth Circuit Court of Appeals, however, recently ruled that a federal prohibition on sex discrimination includes gender identity. G.G. v. Gloucester Cty. Sch. Bd., et al, No. 15-2056, slip op. (4th Cir., Apr. 19, 2016). The case involved Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., rather than the federal employment discrimination statute, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Title IX has many important parallels to Title VII, however, and developments in the interpretation of one could affect interpretations of the other.

The term “gender identity” refers to the gender with which a person identifies, regardless of whether it is the gender assigned to them at birth. “Gender expression” refers to the manner in which a person outwardly expresses their gender identity. They collectively form the “T,” for “transgender,” in “LGBT,” but these terms are not synonymous with sexual orientation. The “L,” “G,” and “B” generally refer to a person’s preference in a romantic or sexual partner, not their identity.

Anti-discrimination laws that cover gender identity and expression might treat them as distinct protected categories, or as forms of sex or gender discrimination. The New York City Human Rights Law, for example, defines “gender” to include “gender identity, self-image, appearance, behavior or expression,” and it prohibits employment discrimination on any of those bases. N.Y.C. Admin. Code §§ 8-102(23), 8-107(1)(a). The New Jersey Law Against Discrimination includes gender identity and expression as its own category. N.J. Rev. Stat. § 10:5-12(a).

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New York City has had a law prohibiting discrimination in employment and other areas based on gender identity and gender expression since 2002. The New York City Human Rights Commission (NYHRC) published new guidelines in December 2015 detailing the extent of these legal protections, which protect transgender people and people who do not conform to a stereotypical gender identity (“non-conforming”) or a binary male/female gender identity (“non-binary”). This has, to put it mildly, generated some dissent. The backlash seems to be focused on a particular location:  restrooms. The NYHRC’s guidelines could affect the status of restrooms in the workplace, but not in the way many or most critics seem to think.

By AxelBoldt (talk · contribs) (Own work) [Public domain], via Wikimedia CommonsThe New York City Human Rights Law (NYCHRL) prohibits discrimination in employment based on a wide range of factors, including gender identity and expression. The statute defines “gender” to include an individual’s “gender identity, self-image, appearance, behavior or expression,” regardless of whether any of these are “traditionally associated with the legal sex assigned to that person at birth.” N.Y.C. Admin. Code § 8-102(23). A “transgender” person, generally speaking, is someone whose gender identity does not match the sex assigned to them at birth, and a “cisgender” person is someone whose gender identity is the same as their biological sex.

The new guidelines regarding gender identity and gender expression discrimination list eight areas in which violations may occur. One of these, in the context of employment, consists of refusing or failing to allow employees “to use single-sex facilities, such as bathrooms or locker rooms…consistent with their gender.” Opponents of expanded legal protections for transgender people and other non-conforming or non-binary people frequently mention restrooms as a reason for concern.

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