Articles Posted in Gender Identity/Expression Discrimination

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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The New York City Human Rights Law (NYCHRL) is one of country’s the most comprehensive laws dealing with discrimination in employment, housing, public accommodations, and other areas. On May 20, 2019, a new law will go into effect that adds “sexual and reproductive health decisions” to the law’s list of protected categories. Some employers have fought against legal requirements involving matters like contraception in recent years. Similar arguments have appeared in support of employers who terminate, demote, or otherwise penalize employees for some of the most private acts in which people engage, or some of the most personal decisions that people can make.

The NYCHRL already prohibits employers from discriminating on the basis of factors like gender, marital or partnership status, and sexual orientation. N.Y.C. Admin. Code § 8-107(1)(a). The statute defines “gender” to include “actual or perceived” characteristics, including gender identity and gender expression. Id. at § 8-102. This provides express protection against discrimination based on transgender status, which is missing in federal law.

Existing law may apply to some adverse employment actions arguably based on “sexual and reproductive health decisions.” The Second Circuit Court of Appeals reinstated a lawsuit alleging sex discrimination under federal, state, and New York City law. The plaintiff became pregnant before getting married and returned from her honeymoon “visibly pregnant.” She alleged that her employer fired her because it “disapprove[d] of [her] pre-marital pregnancy.”
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The laws of New York state have protected workers from discrimination in employment on the basis of gender identity and gender expression since 2016, thanks to regulations issued by the state’s Division of Human Rights (DHR). New York City’s antidiscrimination law expressly identifies discrimination on the basis of gender identity or gender expression as a form of sex discrimination. It is one of the few laws in the nation to address the issue in unambiguous terms. The New York Legislature passed S1047/A747, known as the Gender Expression Non-Discrimination Act (GENDA), on January 15. The governor signed it into law on January 25. The bill amends the New York State Human Rights Law (NYSHRL) to include gender identity and expression as a distinct protected category in employment, education, housing, and use of public accommodations.

The New York City Human Rights Law (NYCHRL) prohibits discrimination in employment and other areas on the basis of gender and defines “gender” to include “actual or perceived…gender-related characteristic[s], regardless of the sex assigned to that person at birth.” N.Y.C. Admin. Code §§ 8-102, 8-107(1)(a). This includes gender identity and expression. At the state level, the DHR exercised its authority under the NYSHRL to “promulgate…suitable rules and regulations to carry out the [statute’s] provisions” in late 2015. N.Y. Exec. L. § 295(5). It issued regulations, which took effect in January 2016, adding “gender identity and the status of being transgender” to the NYSHRL’s definition of “sex.” 9 N.Y.C.R.R. § 466.13(c), N.Y. Exec. L. § 296(1)(a). The statute’s prohibition on discrimination and harassment on the basis of sex therefore also applies to gender identity.

GENDA amends multiple sections of the NYSHRL to add “gender identity or expression” as a protected category on equal footing with sex, race, age, religion, disability, and others. It defines the term as any “identity, appearance, behavior, expression, or other gender-related characteristic,” whether “actual or perceived,” and “regardless of the sex assigned to that person at birth.” S1047/A747 at § 3. This includes transgender status, but also other gender identities or forms of gender expression. GENDA also adds gender identity or expression to the Penal Law section defining hate crimes.
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The U.S. Supreme Court is considering whether to hear a dispute over whether the provisions of Title VII of the Civil Rights Act of 1964 prohibiting employment discrimination on the basis of sex apply to gender identity and gender expression discrimination. New York City employment discrimination attorneys may rely on the New York City Human Rights Law, but elsewhere, the extent of legal protection is far less clear. The case before the U.S. Supreme Court, R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, is an appeal from a Sixth Circuit ruling in favor of an employee who alleges that her employer fired her shortly after she informed them that she was transgender. The U.S. Department of Justice (DOJ) filed a brief with the Supreme Court in October 2018 that sides with the employer. One year earlier, it rescinded a policy memorandum regarding gender identity discrimination and Title VII issued during the Obama administration.

Title VII states that an employer commits an unlawful employment practice when they discriminate against an individual “because of such individual’s…sex” or certain other factors. 42 U.S.C. § 2000e-2(a)(1). The Supreme Court has identified “sex stereotyping”—”evaluat[ing] employees by assuming or insisting that they matched the stereotype associated with their group”—as a form of sex discrimination under Title VII. Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989). The Equal Employment Opportunity Commission (EEOC) expressly identified “discriminat[ing] against someone because the person is transgender” as a violation of Title VII. Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821 (April 20, 2012).

Former Attorney General Eric Holder issued a memorandum in December 2014 taking the position that Title VII’s provisions on sex discrimination in employment apply to discrimination on the basis of gender identity and gender expression. Under new management in October 2017, the DOJ rescinded this memorandum. It replaced it with a new memorandum stating that “‘Sex’ is ordinarily defined to mean biologically male or female,” and that discrimination “because of sex” therefore does not include gender identity and expression.
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Gender identity and gender expression discrimination violate New York City’s antidiscrimination law, but the question of whether federal law applies to this type of discrimination remains unsettled nationwide. Some federal courts have ruled that gender identity discrimination is a form of sex discrimination, which is prohibited by Title VII of the Civil Rights Act of 1964. Other courts have concluded that Title VII does not apply since it does not mention “gender identity discrimination” by name. In the midst of this uncertainty, a series of lawsuits is challenging the White House’s policy banning transgender individuals from serving in the U.S. military. These lawsuits rely on constitutional arguments, such as violations of the Equal Protection Clause of the Fourteenth Amendment, instead of Title VII or similar statutes. None of these cases have reached a conclusion, but at least two courts recently ruled that the government must produce information about the “deliberative process” that led to the policy. Karnoski, et al v. Trump, et al, No. 2:17-cv-01297, order (W.D. Wash., Jul. 27, 2018); Stone, et al v. Trump, et al, No. 1:17-cv-02459, mem. op. (D. Md., Aug. 14, 2018). If you believe you have been discriminated against due to your gender identity or expression at work, reach out to a New York employment attorney to discuss the facts of your situation.

The current dispute involves a directive from the White House, issued in July 2017 via the social media platform Twitter, to prohibit transgender individuals from serving in the U.S. military. This reportedly took the Department of Defense, among many others, by surprise. Numerous lawsuits were filed within weeks of the announcement. The Karnoski and Stone lawsuits referenced above were filed in August 2017. They sought preliminary injunctions against the enforcement of the new policy, which courts granted in both cases. Causes of action included alleged violations of the Due Process Clause of the Fifth Amendment, the Equal Protection Clause, and the Free Speech Clause of the First Amendment.

As the lawsuits proceeded to discovery, the plaintiffs requested information about how the White House developed the policy. They specifically cited a tweet from the President asserting that he had “consult[ed] with my Generals and military experts” prior to announcing the policy. The White House sought to withhold information responsive to these requests under the “deliberative process privilege,” a common law principle that is often cited in response to requests under the Freedom of Information Act. See 5 U.S.C. § 552(b)(5). The Department of Justice describes the privilege as necessary to enable “candid discussion needed for optimum decisionmaking inside government agencies,” but it also acknowledges that the government’s stated policy is to provide as much information to the public as possible.
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