Discrimination based on gender identity does occur in the workplace. It could show itself in the termination of a transgender employee once the employer finds out about the employee's gender identity or planned transition. It could also be seen when transgender employees are denied access to workplace restroom facilities available to other employees. Certainly, harassment of transgender employees is common in some workplaces. If you, or someone you know, has fallen victim to this mistreatment because of their gender identity, here are 3 things you need to know.
No. 1 - How gender identity discrimination is defined
Gender identity discrimination simply means treating someone different, or taking a negative employment action against someone, because of their gender identity or gender expression. The term "transgender" refers to an individual whose self-identity does not conform to conventional notions of male or female gender. A transgender employee may nor may not have undergone gender reassignment surgery. Some common forms of gender identity discrimination may include:
• Termination when an employer finds out about a plan to undergo gender reassignment surgery.
• Termination for cross-dressing outside the workplace
• Termination or discipline for failure to conform to a company dress code policy, by wearing clothing appropriate to your gender identity
• Being refused access to workplace restrooms
No. 2 – There is no federal law prohibiting gender identity discrimination
At this time, no federal law exists that explicitly prohibits discrimination based on gender identity. In fact, there is no federal law that provides general protection against discrimination for LGBT employees. On the state level, less than half of the country has enacted laws that protect employees based on sexual orientation and gender identity/expression. The federal anti-discrimination laws that are in place specifically prohibit discrimination based on race, color, sex, religion, national origin, age, and disability. While there is a proposed federal legislation that would explicitly prohibit sexual orientation or gender identity discrimination, it is having a difficult time getting passed.
No. 3 – Sexual orientation and gender identity are not the same
Many clients are somewhat confused about the difference between discrimination based on sexual orientation and discrimination based on gender identity. In the legal arena, sexual orientation refers to whether or not an individual is homosexual, heterosexual or bisexual. In other words, your sexual preference – gay, straight or bisexual. However, not everyone who is transgender is homosexual. There are many transgender individuals who consider themselves straight. For example, a transgender woman may have male partners. Essentially, transgender discrimination often has little to do with sexual orientation.
So, what can I do?
For transgender employees who believe they have been the victim of workplace discrimination, especially those who live in a state that does not have a specific law protecting them from such discrimination, it is very important to consult with an employment law attorney who is familiar with this area of the law, and can suggest possible theories to pursue, based on your situation.If you feel you have been the victim of discrimination, or if you have any questions regarding your employment rights, please contact the experienced employment attorneys at Wrady & Michel, LLC, either online or by calling us at (205) 265-1880.