Articles Posted in Gender Identity/Expression Discrimination

Workplace discrimination on the basis of gender identity and gender expression is a form of unlawful sex discrimination under federal law, thanks to a 2020 U.S. Supreme Court ruling. New York State and New York City employment discrimination laws include specific protections for LGBTQ workers. Laws protecting against sex discrimination in education play as important a role in our society as those addressing workplace discrimination. While the Supreme Court’s decision last year did not include the federal statute prohibiting sex discrimination in education, the new White House administration has filled in the gaps. An executive order (EO) issued in January 2021 cites the Supreme Court in extending Title IX of the Education Amendments of 1972 to protect against discrimination on the basis of gender identity and gender expression. The Department of Justice (DOJ) issued a memo in late March applying the EO to its Title IX enforcement activities.

Title IX prohibits discrimination based on sex in any educational institution or program that receives federal funding. 20 U.S.C. § 1681(a). Title VII of the Civil Rights Act of 1964 bars discrimination by employers on the basis of sex and several other factors. 42 U.S.C. § 2000e-2(a). Neither statute provides a distinct definition of “sex,” except that Title VII includes pregnancy discrimination in its prohibition of “sex discrimination.”

Courts have gradually expanded the scope of “sex discrimination” over the years, to include acts like sexual harassment and discrimination based sex or gender stereotypes. Lawmakers in New York State, New York City, and many other state and local jurisdictions added gender identity and gender expression as distinct protected categories in their antidiscrimination laws. People asserting claims under federal law, for both employment and education discrimination, had to get creative.
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Employment discrimination on the basis of gender identity and gender expression violates both New York State and New York City laws. City and state laws addressing discrimination in education also prohibit this type of discrimination. As New York City employment discrimination attorneys, we have observed many similarities between discrimination in school programs and discrimination in the workplace. While the new administration in Washington DC is taking a much different approach to issues of gender identity and gender expression than its predecessor, it remains a controversial issue, especially with regard to school sports. Discrimination in school sports can keep students from having access to sports at all, which can have wide-ranging effects. New York City and New York State have taken an inclusive approach, unlike many jurisdictions around the country.

New York State’s employment antidiscrimination law expressly bars discrimination based on “gender identity or expression.” N.Y. Exec. L. § 296(1)(a). Its definition of this term includes a person’s actual “gender-related characteristic[s],” as well as characteristics perceived by others and attributed to a person, and includes both transgender and nonbinary statuses. Id. at § 292(35). New York City law prohibits gender discrimination in employment, which includes gender identity and gender expression “regardless of the sex assigned to that person at birth.” N.Y.C. Admin. Code § 8-102.

State law generally prohibits discrimination on the basis of sex in education programs, including allowing people to participate on “state public and high school athletic teams.” N.Y. Educ. L. § 3201-a. The statute does not specifically mention gender identity or gender expression, but it directs the state’s commissioner of education to establish further regulations on the matter. Athletics present a somewhat different issue than many other concerns regarding discrimination since they tend to be separated based on sex or gender.

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The gender gap in employment has received much attention in recent years, and with good reason. Despite advances in opportunities for people of all genders, many disparities still exist in terms of wages and job opportunities. Discrimination on the basis of gender identity and gender expression remains a serious problem. New York City workplace discrimination laws exist, in part, to give workers a way to push back against discriminatory acts by employers. Not all discrimination is intentional, though, and some workplaces seem more prone than others to unconscious biases. Last fall, the scientific journal Nature published accounts by LGBT+ individuals working in STEM fields (Science, Technology, Engineering, and Mathematics) describing their experiences.

Discrimination on the basis of gender identity and gender expression violates multiple employment statutes in New York City. State law specifically identifies gender identity and gender expression as protected categories. N.Y. Exec. L. § 296(1)(a). New York City’s antidiscrimination statute prohibits discrimination on the basis of gender, and its definition of the term includes actual and perceived gender identity or modes of expression. N.Y.C. Admin. Code §§ 8-102, 8-107(1)(a).

Federal law prohibits discrimination in employment and education on the basis of sex. See 42 U.S.C. § 2000e-2(a), 20 U.S.C. § 1681(a). While the definition of “sex” found in Title VII of the Civil Rights Act of 1964 has some nuance, Congress has never expressly included gender identity or sexual orientation in that definition. In 2020, however, the U.S. Supreme Court ruled that discrimination on the basis of either sexual orientation or gender identity is, in fact, discrimination based on a person’s sex in violation of Title VII. The ruling, Bostock v. Clayton County, only dealt with Title VII and employment discrimination, not Title IX’s provisions on sex discrimination in education. It is possible, however, that the court may extend the ruling to Title IX as well.

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The U.S. Supreme Court’s landmark ruling this summer in Bostock v. Clayton County, Georgia expanded Title VII’s protection against workplace discrimination to include discrimination based on sexual orientation, gender identity, and gender expression. Prior to the court’s ruling, legal protections against employment discrimination on these bases was highly inconsistent at the federal level, particularly with regard to gender identity and gender expression discrimination. New York State and New York City employment discrimination laws specifically mention these categories, but they do not appear in federal law in so many words. The Supreme Court found that Title VII’s prohibition against discrimination “on the basis of sex” necessarily includes gender identity and sexual orientation. The Equal Employment Opportunity Commission (EEOC) issued a new guidance document on “protections for LGBT workers” about two weeks after the court issued its decision. The document is rather concise, but the EEOC provides rather extensive background for the Bostock ruling elsewhere.

The Supreme Court arguably laid the foundation for the part of Bostock addressing gender identity and gender expression discrimination more than thirty years ago. Its 1989 ruling in Price Waterhouse v. Hopkins held that “sex stereotyping” constitutes sex discrimination under Title VII. The court found that the defendant employer denied the plaintiff a promotion in large part because of “her failure to conform to certain gender stereotypes.” It noted that one partner suggested that she “walk more femininely, talk more femininely, wear make-up, have her hair styled, and wear jewelry.”

In Oncale v. Sundowner Offshore Services, Inc., decided in 1998, the Supreme Court held that sexual harassment among members of the same sex may violate Title VII. Many of the plaintiff’s co-workers harassed him with homophobic slurs. The court ruled that the harassment need not be “motivated by sexual desire” to be actionable under Title VII. The ruling established the possibility of claims for discrimination based on someone’s perceived sexual orientation.

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Federal antidiscrimination law protects against discrimination on the basis of sex in employment, education, health care, and other areas. While New York City employment discrimination law specifically mentions gender identity and gender expression, federal law only mentions sex. The U.S. Supreme Court recently ruled in Bostock v. Clayton County, Georgia that discrimination “on the basis of sex” includes sexual orientation, gender identity, and gender expression. The ruling is already having a significant impact. Shortly after the court issued its ruling, the U.S. Department of Health and Human Services (HHS) issued a final rule that removes protections for transgender patients under the Patient Protection and Affordable Care Act (ACA). A lawsuit against HHS argues that the rule violates Bostock. A federal court in New York stayed enforcement of the rule and granted a preliminary injunction.

Advocates for the rights of LGBTQ people in the workplace have long argued that discrimination against a person because of their gender identity is discrimination on the basis of sex under Title VII of the Civil Rights Act of 1964. In June 2020, the U.S. Supreme Court affirmed this view in Bostock.

Other federal statutes also prohibit sex discrimination. Title IX of the Education Amendments of 1972 bars discrimination “on the basis of sex…under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). The ACA prohibits discrimination in “any health program or activity, any part of which is receiving Federal financial assistance” on the basis of various grounds, including sex. 42 U.S.C. § 18116(a).

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In a landmark decision, the U.S. Supreme Court ruled on Jun 15, 2020 that federal antidiscrimination law bars employers from firing an employee because of sexual orientation, gender identity, or gender expression. New York City’s employment discrimination law specifically includes these as protected categories, but Title VII of the Civil Rights Act of 1964 only covers discrimination on the basis of sex and a few other factors. The Supreme Court’s 6-3 ruling in Bostock v. Clayton County, Georgia holds that Title VII’s prohibition on sex discrimination includes sexual orientation and gender identity or expression. The majority opinion, written by Justice Gorsuch, applies textual analysis to reach this conclusion.

Sex Discrimination Under Title VII

Title VII’s provision regarding sex discrimination in employment has an unusual history. The statutes other titles did not originally include any mention of sex discrimination. The member of the House of Representatives who introduced the amendment adding sex to Title VII’s list of protected categories reportedly did so “in a spirit of satire and ironic cajolery.” The amendment became part of the final statute, and remains a critically important tool in protecting people’s rights.

Since 1964, the Supreme Court has expanded the meaning of sex discrimination to include a rather wide range of acts. In Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), for example, the court held that sexual harassment constitutes sex discrimination under Title VII. Justice Gorsuch’s opinion in Bostock cites three cases that built on Title VII’s concept of sex discrimination:
Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971): A policy excluding mothers of young children from consideration for employment violated Title VII.
Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702 (1978): A company violated Title VII when it required female employees to make larger pension contributions than male employees.
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998): Sexual harassment between members of the same sex can be actionable under Title VII.
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Legal protections for workers who are transgender or gender-nonconforming are, at best, a patchwork around the country. New York City gender identity discrimination attorneys can choose between city and state law when preparing a claim for gender identity or gender expression discrimination. In places where people must rely on federal law, their options may be less clear. An executive order (EO) issued during the Obama administration extended legal protections against gender identity discrimination to civilian government employees and employees of government contractors. That EO remains in effect, but the new administration has chipped away at its protections. This includes both substantive law and publicly available information. A report published in November 2019 by the Web Integrity Project (WIP) examines how the administration has removed information about LGBTQ legal protections from government websites, even when those legal protections remain in place.

The Equal Employment Opportunity Commission (EEOC) ruled in 2012 that the prohibition on sex discrimination in Title VII of the Civil Rights Act of 1964 covers gender identity and gender expression. The agency cited precedent recognizing “sex stereotyping” as a type of sex discrimination, and found that discrimination on the basis of a complainant’s gender identity was discrimination based on her sex. Most federal courts have not reached this conclusion. The U.S. Supreme Court is expected to rule on the question in 2020.

President Obama issued EO 13672 on July 21, 2014. The order amended two earlier EOs. EO 11246, signed by President Johnson in 1965, established rules against discrimination by employers that contract with the federal government. EO 11478, signed by President Nixon in 1969, addressed discrimination in the federal civilian workforce. EO 13672 added gender identity protections to both of the earlier EOs. Various executive agencies implemented the new EO over the following months. See, e.g. 79 Fed. Reg. 72985 (Dec. 9, 2014), 41 C.F.R. § 60-1.1 et seq.

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Federal law prohibits various discriminatory acts by employers, such as discrimination on the basis of pregnancy or childbirth, but its protections have limitations. Title VII of the Civil Rights Act of 1964 only applies to employers with fifteen or more employees. 42 U.S.C. § 2000e(b). It also does not apply to religious organizations with regard to “the employment of individuals of a particular religion.” Id. at § 2000e-1(a). The statute does not provide guidance on how to determine whether an employer is a religious organization or not. A number of for-profit businesses, rather than churches or other expressly religious organizations, have claimed religious exemptions in recent years. A proposed rule published by the U.S. Department of Labor (DOL) could expand the definition of “religious organization.” This can be an issue for New York City pregnancy discrimination attorneys when an employer claims a religious exemption from antidiscrimination laws.

Title VII prohibits pregnancy discrimination, which includes “pregnancy, childbirth, [and] related medical conditions,” as a type of sex discrimination. Id. at § 2000e(k). In 1965, the president issued Executive Order (EO) 11246, which expanded the requirements of Title VII to all federal contractors, regardless of their number of employees. “Religious entities,” however, are exempt on the same basis as the exemption from Title VII. 41 C.F.R. § 60-1.5(a)(5). This means that, for example, an expressly Christian organization may refuse to hire individuals who are not Christian for certain positions. A similar exemption applies to religious schools. See id. at § 60-1.5(a)(6).

The “ministerial exception” provides another exemption from antidiscrimination laws for religious organizations. It states that religious organizations are not bound by antidiscrimination laws with regard to “ministers.” For example, a church can refuse to hire a person as a priest or pastor who is not a part of that church’s religion. Recent court decisions, however, seem to have expanded the definition of “minister.” In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012), the Supreme Court affirmed the dismissal of a teacher’s disability discrimination lawsuit, finding that her position with the school was “ministerial.” The Second Circuit recently affirmed that the ministerial exception barred a former Catholic school principal’s sex discrimination lawsuit. Another court, however, found that the exception does not apply in a pregnancy discrimination lawsuit brought by a college professor.
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New York City employment discrimination laws protect transgender and gender-nonconforming workers by prohibiting discrimination on the basis of how they identify or express their own gender. State law in New York has similar provisions. A lawsuit filed in New York County Supreme Court in June 2019 alleges that a restaurant discriminated against a gender-nonconforming employee by requiring them to follow a dress code designed for people who identify as male. The New York City Commission on Human Rights (CHR), in interpreting city law regarding gender identity and gender expression discrimination, specifically identifies gender-specific dress codes as a violation.

The New York City Human Rights Law (NYCHRL) bars discrimination by employers based on gender and other factors. N.Y.C. Admin. Code § 8-107(1)(a). The statute defines “gender” as an individual’s “actual or perceived sex, gender identity and gender expression,” without regard to “the sex assigned to that person at birth.” Id. at § 8-102. The New York State Human Rights Law (NYSHRL) identifies gender identity and gender expression as a distinct protected class, defining it as one’s “actual or perceived…appearance, behavior, expression, or other gender-related characteristic,” also without regard to one’s assigned gender at birth. N.Y. Exec. L. §§ 292(35), 296(1)(a).

The City Council intended the NYCHRL to provide comprehensive protection, specifically noting its “uniquely broad and remedial purposes” and setting it apart from federal and state antidiscrimination statutes. N.Y.C. Admin. Code § 8-130(a). The CHR has stated that gender-specific dress codes or grooming standards violate the NYCHRL, and that individuals should not bear the burden of “demonstrat[ing] why a particular distinction…does not conform to their gender expression.” Employers may enforce dress codes or grooming standards as long as they are applied on a gender-neutral basis.

New York City discrimination laws prohibit employers from taking adverse actions against employees and job applicants because of a wide range of factors. The laws of New York state also provide broad protection against discrimination in the workplace. At the federal level, Title VII of the Civil Rights Act of 1964 only identifies five protected categories, including sex. While municipal and state laws in New York City offer protection against discrimination based on gender identity, gender expression, and sexual orientation, federal courts are split on whether Title VII’s ban on sex discrimination implicitly includes these categories. The U.S. Supreme Court granted certiorari to several cases in April 2019 that raise these questions. Two cases involve sexual orientation discrimination, and involve conflicting circuit court decisions. A third case involves gender identity discrimination. No circuit split exists, because this is reportedly the first such case to reach the federal appellate level. The Supreme Court agreed to hear the case anyway.

New York City’s antidiscrimination law prohibits discrimination on the basis of gender, and expressly includes “actual or perceived…gender identity and gender expression” in its definition. N.Y.C. Admin. Code § 8-102. At the state level, gender identity and gender expression are protected categories in their own right. N.Y. Exec. L. § 296(1)(a). Federal law identifies a cause of action for discrimination on the basis of sex. 42 U.S.C. § 2000e-2(a)(1). Congress and the courts have expanded the definition of “sex discrimination” to include matters like pregnancy discrimination and sexual harassment.

The Equal Employment Opportunity Commission (EEOC) has found that discrimination on the basis of sexual orientation, gender identity, and gender expression falls under Title VII’s prohibition on sex discrimination. This is based in part on a Supreme Court case that ruled that discrimination on the basis of “sex stereotypes,” meaning stereotypes about how member of a certain sex should look or act, violates Title VII. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The EEOC’s interpretation of Title VII has not caught on in most federal courts.
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