Jackson Lewis Partner Discusses Sexual Stereotyping, Gender Identity in Workplace

Jackson Lewis Partner Michelle Phillips has presented a one-hour webinar addressing sexual stereotyping and gender identity in the workplace, a topic receiving heightened attention in light of Equal Employment Opportunity Commission initiatives and state and local laws prohibiting gender identity discrimination.

While gender identity and gender expression are not explicitly protected by federal law, Ms. Phillips explained, 16 states (California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington) and the District of Columbia include gender identity and/or gender expression in their employment non-discrimination statutes. Shortly after Jackson Lewis posted the webinar, Delaware’s Gender Identity Nondiscrimination Act became effective, making the state the 17th to enact a law prohibiting gender identity discrimination. (For more on the Delaware law, see our article, Delaware Enacts Gender Identity Nondiscrimination Law.)

Courts and human rights agencies in at least six states (Connecticut, Colorado, Hawaii, Massachusetts, New Hampshire, and New York) have ruled that transgender employees are protected by their state anti-discrimination laws. New legislation in this area is moving rapidly. Ordinances prohibiting workplace discrimination on the basis of gender identity or expression are even more prevalent at the local level, Ms. Phillips said.

Beyond state and local laws, Ms. Phillips explained, the EEOC has said that transgender discrimination is discrimination on the basis of “sex” under Title VII of the Civil Rights Act of 1964. (For details, see our article, Title VII Prohibits Discrimination against Transgender Workers, EEOC Decides.) Further, the EEOC’s Strategic Enforcement Plan (see our article, Targeting Class-Based Discrimination Tops EEOC’s Ambitious 2013-2016 Strategic Enforcement Plan) focuses, in part, on seeking protection for lesbian, gay, bisexual and transgender individuals under the post-Price-Waterhouse sexual stereotyping cases derived from Title VII.

Ms. Phillips provided an overview of how “gender identity” differs from “gender expression” in the first step in helping employers understand their compliance obligations. She also explained the meaning of transsexual, transgender, and sexual orientation and transitioning.

After reviewing significant court decisions involving gender identity and expression, Ms. Phillips provided examples of conduct seen as discriminatory and harassing toward transgender employees. These included preventing appropriate restroom usage, repeated failures to address an employee by his/her proper name and pronoun (i.e., Mr./Ms. and his/her), invasive inquiries about medical history or genitalia, and allowing teasing or intimidating behavior.

The webinar also covered gender transition planning in the workplace and concluded with tips for ensuring legal compliance.

The free “Sexual Stereotyping & Gender Identity in the Workplace” webinar can be viewed at any time by clicking here or through our Webinars page. Please contact webmaster@jacksonlewis.com if you have any problems accessing the webinar.

If you have any questions about this or other workplace matters affecting your business, please contact the Jackson Lewis attorney with whom you regularly work.