Protection Against Transgender Discrimination in Employment is Available to Some Employees, but Not All

The federal government took an important step last year in recognition of the rights of trangender individuals to live and work free from discrimination and harassment based on their gender identity. The Obama administration modified the language in the federal jobs website to include an explicit ban on gender identity discrimination in government employment. This only applies to jobs in the federal government, and the change was really only a formality, as the government had informally prohibited such discrimination for several years. The change still signals the improvements occurring in legal protections against employment discrimination, not only based on gender identity but on characteristics like gender and sexual orientation. It also demonstrates the difference between the scope of public anti-discrimination laws and private anti-discrimination policies set by individual employers.

“Transgender” is a very broad term encompassing a wide range of characteristics and identities. The National Center for Transgender Equality (NCTE) defines “transgender” as “people who live differently than the gender presentation and roles expected of them by society.” Gender identity exists independent of sexual orientation, although the two are often incorrectly conflated.

Transgender people are still a very misunderstood and marginalized group, and this is reflected in their employment. A study released by NCTE in February 2011 revealed that transgender people are unemployed at twice the rate of the general population. Ninety percent of the people surveyed reported some sort of harassment or discrimination in their jobs. Forty-seven percent said they had suffered some negative job outcome, including getting fired or losing a promotion, because of their gender identity. Sixteen percent reported that, after losing their jobs, having to work in the “underground economy,” which includes sex work and drugs. Transgender people also reported four times the rate of homelessness as the general population.

Statistics such as the ones discovered by the NCTE study are difficult to verify because of the very few legal protections available to transgender people to combat employment discrimination. Fifteen states and the District of Columbia, as well as over 100 local jurisdictions, have laws prohibiting discrimination based on gender identity in employment and other areas. Multiple attempts to enact legislation at the federal level to prevent gender identity discrimination have stalled or failed. A proposed law, the Employment Non-Discrimination Act, has lingered in Congress since the 103rd Congress in 1993. A version of the bill with gender identity included appeared in the 110th Congress in 2007, and again in 2009 and 2011, but has never found enough support to pass. New York does not have a law addressing transgender workplace discrimination, although it enacted a law in 2010, the Dignity for All Students Act, which includes protections against bullying based on gender identity.

The majority of protections for transgender people against employment discrimination therefore come from employers themselves. Wal-Mart announced in September 2011 that it had added provisions protecting transgender people to its employment non-discrimination policy. The Human Rights Campaign identified 337 major U.S. companies that earned the top ranking in its 2011 Corporate Equality Index, which analyzes and rates businesses’ policies relating to lesbian, gay, bisexual, and transgender employees.

The New York gender discrimination lawyers at Phillips & Associates represents employees and job seekers who have been the victims of discrimination in the workplace based on gender or gender identity. To schedule a free and confidential consultation, contact the firm today.

Web Resources:

Injustice at Every Turn: A Report of the National Transgender Discrimination Survey (PDF), National Center for Transgender Equality, February 2011
Corporate Equality Index 2011, Human Rights Campaign
More Blog Posts:

Kohl’s Faces Claim of Employment Discrimination Based on Medical Condition, New York Employment Attorney Blog, October 27, 2011

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