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.
The Nature article, published in October 2020, includes accounts from six scientists and science graduate students in the U.S., the United Kingdom, and New Zealand, including a non-binary clinical neuropsychology student in New York City. They describe feeling “invisible” in their workplaces, and note how issues ranging from unspoken assumptions to outright hostility have affected their careers. This includes doubts about continuing in their chosen fields at all because of widespread microaggressions and other issues that might not rise to the level of legally actionable discrimination.
A common theme in research and reporting on the underrepresentation of LGBT+ people in STEM fields is reminiscent of subtle forms of discrimination seen in other workplaces: The Nature article notes that employers might pass on a candidate who is openly gay, lesbian, or transgender because they perceive that they would not be a good “‘fit’ for the departmental, institutional or local culture.” These types of institutional barriers often begin long before the job search, as early as when people are deciding on their majors in college. Beyond the impact this can have on the individuals themselves, research also suggests that it could have a negative impact on innovation.
The employment lawyers at Phillips & Associates represent New York City employees, former employees, and job seekers in claims for gender identity discrimination and other violations of local, state, and federal law. Please contact us online or at (212) 248-7431 today to schedule a free and confidential consultation to see how we can help you with your case.