Tag Archives: gender identity

NEW LAW: Prohibits Discrimination Based on Gender Identity or Expression in New York

On January 25, 2019, New York Governor Andrew Cuomo signed The Gender Expression Non-Discrimination Act (GENDA) into law. This new law amends the New York State Human Rights Law (NYSHRL) by adding gender identity and gender expression to the list of protected classes. With this addition, discrimination in the workplace based on an individual’s gender identity or gender expression is now prohibited.

“The term “gender identity or expression” means a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender”.

What does this mean for employers?

  • Employers will have to develop and implement new anti-discrimination policies and anti-harassment policies.
  • Make sure anti-discrimination/anti-harassment training programs address gender identity or expression discrimination.
  • Training managers on detecting such discrimination will be needed.
  • Education/train employees on the forms of harassment and discrimination.
  • Provide reasonable accommodation if needed.

NEW LAW: Pennsylvania Human Rights Commission Expands Protections Of Pennsylvania Human Relations Act To Include LGBT Bias

In new Guidance Materials (“Guidance On Discrimination On The Basis Of Sex Under The Pennsylvania Human Relations Act”), the Pennsylvania Human Rights Commission has stated that it will consider sex discrimination to include not only an individual’s biological sex, but also sexual orientation, gender identity, gender expression, gender transition, and/or transgender status.

What this means for employers – it is recommended that employers take note of this expansion in the definition of sex and educate their managers/supervisors that an employee’s LGBT status is protected under Pennsylvania law.

NEW LAW: Cuyhoga County, Ohio Protects LGBTQ Employees From Discrimination

The Cuyahoga County Council recently passed County Ordinance #O2018-0009, while protects individuals from discrimination based on sexual orientation and gender identity in employment, among other things.  Employers in this county should review the new ordinance and provide training to their managers about the new ordinance.

NEW LAW: New Hampshire Adds Gender Identity As Protected Class

On June 8, 2018, New Hampshire Governor Chris Sununu signed HB1319 (An Act Prohibiting Discrimination Based on Gender Identity) into law.  This new law, which goes into effect on July 8, 2018, amends the New Hampshire Law Against Discrimination (NHLAD) to include gender identity to the list of protected classes under the NHLAD.

Under this new law, employers are prohibited from discriminating against an individual based on gender identity with respect to the terms and conditions of employment, including hiring, compensation, employment benefits, advancement, employment training, assignments and termination of employment.  In addition, workplace harassment of an individual because of his/her gender identity is also strictly prohibited.

For purposes of the new law, “gender identity” is defined as “a person’s gender-related identity, appearance, or behavior, whether or not that gender-related identity, appearance, or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” Continue reading NEW LAW: New Hampshire Adds Gender Identity As Protected Class

NEW LAW — Gender-Neutral Restrooms Coming to Vermont

The movement towards gender-free restrooms has continued to gain momentum with Vermont joining as the latest state to authorize single-user restrooms for use by all genders in public facilities.

The new law (H.333), signed by Governor Phil Scott, will require all single-user bathrooms in public buildings or places of public accommodation to be marked as gender-neutral.

For purposes of the new law, a “single-user bathroom” is defined as “a single-occupancy restroom with at least one water closet and with an outer door that can be locked by the occupant.” 

The law, which goes into effect on July 1, 2018, has been embraced by the state’s LGBT community, who has been vocal about protecting transgender individuals by embracing equality and inclusivity. Gov. Scott said, “This is especially important for kids in school who face anxiety and bullying over something as simple as using the restroom. Treating others in this way is not who we are as Vermonters, and I hope the signing of this bill will send a powerful message that that’s not the way we act.” Continue reading NEW LAW — Gender-Neutral Restrooms Coming to Vermont

The Change Continues: Transgender Status Ruled Protected Under Title VII

In continuing with the theme of the year, another appellate court has taken more expansive view of the protections under Title VII to extend its previous limits to cover a newer issue: discrimination on the basis on an individual’s transgender status.  In so doing, the Sixth Circuit Court of Appeals became the first federal appellate court to recognize such rights under the federal law.

Some Background

R.G & G.R Harris Funeral Home hired Aimee Stephens when she was living and presenting as a man.  She worked for the funeral home for approximately 6 years, until in 2013, when she informed the owner that she intended to begin living and working as a woman.  The owner terminated Aimee’s employment two weeks later on the basis that “the public would not be accepting of her transition.”

Aimee filed a complaint with the EEOC which brought a lawsuit against the funeral home for discrimination based on Aimee’s sex and gender identity. The district court, interpreting Title VII within its traditional limits, dismissed the claims against the funeral home alleging discrimination based on transgender status.

The Sixth Circuit disagreed.  In taking a more expansive approach to Title VII, the court ruled that it was “analytically impossible” to terminate an employee based on their transgender status without being motived, at least in part, by the employee’s sex.  Thus, the court found “[discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex” in violation of Title VII.

What Does This Mean for Employers?

Most employers are by now well acquainted with the reality that the EEOC will bring and has brought charges for perceived discrimination or harassment of employees based on their transgender status.  The EEOC has held that position since 2012. What’s changed now is that a federal appellate court has affirmed the EEOC’s position.  This will likely encourage employees, and their attorneys, to file claims for transgender discrimination where they would have otherwise been hesitant to do so. Continue reading The Change Continues: Transgender Status Ruled Protected Under Title VII

NEW POSTER — California Publishes New Mandatory Transgender Rights Poster

As previously reported (in NEW LAW: New Requirements for California Sexual Harassment Training) aside from increasing California’s sexual harassment training requirements to include discussing harassment based on gender identity, gender expression, and sexual orientation and including practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation, Senate Bill 396 also requires all California employers post a workplace poster related to transgender rights. 

In order to help employers comply with this new posting requirement, the California Department of Fair Employment and Housing (DFEH) recently published the English and Spanish language versions of the poster.  Starting January 1, 2018, the “Transgender Rights in the Workplace” poster (as with all DFEH-mandatory posters) must be posted “in a prominent and accessible location in the workplace” where it can be “easily seen and read by all employees and job applicants.”   In addition, if ten percent or more of a company’s workforce speaks a language other than English, the poster must also be displayed in that language (or languages).

It is recommended that all California employers download the new poster and display it in the workplace as soon as possible.

NEW LAW: New Requirements for California Sexual Harassment Training

Attention California employers … on October 15, 2017, California Governor Jerry Brown signed SB 396 into law.  This new law amends the California Fair Employment and Housing Act (FEHA) and requires that employers’ sexual harassment training programs include an additional training element.

Under current law, California employers who employ 50 or more employees are required to provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees in California within six months of their assumption of a supervisory position.  The training program must be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation and must include the following elements:

  • Information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment,
  • Information and practical guidance regarding the remedies available to victims of sexual harassment in employment,
  • Practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation,
  • Information and practical guidance regarding prevention of abusive conduct.

Under the new law, starting January 1, 2018, the sexual harassment training program must also address harassment based on gender identity, gender expression, and sexual orientation and include practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation.

In addition to the new training requirements, all California employers are required to post a poster regarding transgender rights in a prominent and accessible location in the workplace.  This poster will be developed by the DFEH and is not yet available on the DFEH website.  It is also recommended that employers consider distributing the DFEH’s brochure regarding transgender rights (Transgender Rights in The Workplace) to all employees.

Take Home for Employers

It is recommended that all affected California employers verify their sexual harassment training programs include the new required elements.  In addition, all California employers should make sure to post the new poster in the workplace once it is available.

NEW LAW – Birmingham City Council Passes Nondiscrimination Ordinance

On September 26, 2017, the Birmingham City Council passed a new nondiscrimination ordinance, which is the first of its kind in Alabama.

Under this new law, the City of Birmingham has prohibited discrimination on the basis of a person’s real or perceived race, color, religion, national origin, sex, sexual orientation, gender identity, disability, or familial status.

This new law applies to housing, public accommodations, public education, and employment. There are only two exceptions for compliance — one for religious corporations and one for employers with bona fide affirmative action plans or seniority systems.

In addition, the new law creates a Human Rights Commission that will advise the Mayor and Council on matters related to eliminating discriminatory practices within the City.

The ordinance still needs to be signed into law by the mayor, in order for it to become effective.  However, the mayor has indicated that he will sign it into law immediately.

NEW REGULATIONS – California’s New Transgender Regulations Now In Effect

On July 1, 2017, the California Department of Fair Employment and Housing’s (DFEH) regulations concerning transgender employees went into effect.  The new regulations interpret the California Fair Employment and Housing Act’s (FEHA’s) provisions prohibiting discrimination on the basis of “gender identity” and “gender expression.”

New Definitions

The new regulations provide new definitions for the following terms:

  • “Gender expression” means a person’s gender-related appearance or behavior, or the perception of such appearance or behavior, whether or not stereotypically associated with the person’s sex assigned at birth.
  • “Gender identity” means each person’s internal understanding of their gender, or the perception of a person’s gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth, or transgender.
  • “Transitioning” is a process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth. This process may include, but is not limited to, changes in name and pronoun usage, facility usage, participation in employer-sponsored activities (e.g. sports teams, team-building projects, or volunteering), or undergoing hormone therapy, surgeries, or other medical procedures.

Clarifying Concepts

Restrooms

The new regulation clarify that employers are required to provide “equal access to comparable, safe, and adequate facilities” to all employees without regard to the sex (which is defined to include gender identity and gender expression) of the employee.  Employers are also expressly required to “permit employees to use facilities that correspond to the employee’s gender identity or gender expression, regardless of the employee’s assigned sex at birth.”

The regulations also remind employers that if they have “single-occupancy facilities” under their control, they are required to use gender-neutral signage for those facilities, such as “Restroom,” “Unisex,” “Gender Neutral,” “All Gender Restroom,” etc.

Finally, the regulations clarify that employers are not permitted to require employees provide proof of any medical treatment or procedure or to provide any identity document to use facilities designated for use by a particular gender.

Dress Codes

While employers are still permitted to impose a dress code, the new regulations clarify that it is unlawful for an employer to impose upon an applicant or employee any “dress code” (i.e. physical appearance, grooming or dress standard) which is inconsistent with an individual’s gender identity or gender expression.  In addition, the dress code must serve a legitimate business purpose and cannot discriminate based on an individual’s sex, including gender, gender identity, or gender expression.

The only exception to this prohibition is if the employer can establish business necessity for the particular dress code restriction.

Preferred Name and Identity

The new regulations add a new requirement that employers comply with an employee’s request to be identified by a certain name or gender identity.  The only exception to this requirement is if the employer is under some other legal obligation to identify the employee by his or her legal name or gender marker.

Employers are also prohibited from inquiring into an employee or applicant’s sex, gender, gender identity or gender expression.  The only exception is if the employer can establish a business necessity for such an inquiry.

Recommendations for Employers

It is recommended that all California employers review the new regulations and verify their employment practices comply with the new regulations.  Specifically, employers should consider the following:

  • Revising existing anti-discrimination policies to include express protections relating to sexual orientation, gender identity and gender expression;
  • For employers with single-user restrooms, verify that the restroom is labelled with the appropriate signage (i.e. the unisex signage);
  • Verify that any dress code policy avoids gender stereotypes and is enforced consistently; and
  • Most importantly, provide training to your managers and supervisors about the new regulations.