Articles Posted in Gender Identity/Expression Discrimination

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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OpenClipartVectors [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayThe New York City Commission on Human Rights (the “Commission”) issued a guidance document (the “Document”) in late December 2015 regarding discrimination based on gender identity and gender expression, both of which are prohibited in employment and other areas under the New York City Human Rights Law (NYCHRL). The Document has generated some strident responses in opposition, but all the Commission has done is clarify laws that have been in place in New York City since 2002. It offers useful guidance on workers’ rights and remedies, including hypothetical examples of prohibited discriminatory acts.

In April 2002, the New York City Council passed the Transgender Rights Bill, which amended the NYCHRL’s definition of “gender” to include those whose “gender identity…is different from that traditionally associated with the legal sex assigned to that person at birth.” N.Y.C. Admin. Code § 8-102(23). At least 18 states and the District of Columbia have enacted statutes prohibiting various forms of discrimination based on gender identity and expression. See, e.g. N.J. Rev. Stat. § 10:5-12(a), Conn. Gen. Stat. § 46a-60(a)(1). At the state level, New York does not expressly prohibit this sort of discrimination, although the Governor’s Office has issued an executive order that protects state employees. At least six cities—in addition to New York City—and three counties have anti-discrimination ordinances.

The Document provides definitions of numerous important terms. “Gender” and “sex” are sometimes used interchangeably, but they are not the same. “Gender identity” refers to “one’s internal deeply-held sense of one’s gender,” regardless of one’s assigned sex. A person may identify as male, female, or “non-binary.” A “cisgender” person identifies with the sex assigned to them at birth—i.e. a person deemed “male” at birth who identifies as male. A “transgender” person does not identify with the sex assigned to them at birth. A person’s “gender expression” is how they outwardly present themselves through their name, preferred pronouns (he/him/his, she/her/her), or another set of indicators—clothing, etc.

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