In an employment context, gender and sex discrimination refer to situations in which an employee or a group of employees is harassed or treated differently by an employer, solely because of their sex or gender.
This discriminatory behavior may come from a variety of people in the workplace, including:
- Human resources personnel; and
- Other co-workers.
The umbrella term for this would be employment discrimination. Employment discrimination involves wrongful or different treatment of an employee based on certain characteristics. An example of this would be how it is illegal for an employer to discriminate against an employee due to their:
- Political affiliation;
- Gender; and
- Other protected traits, such as disability. It is considered to be illegal to treat one group of workers differently or better based on such characteristics.
Examples of gender and sex discrimination include:
- Deciding against hiring someone based solely on their gender or sex;
- Paying one employee less than other employees who perform the same type of work, based on their sex or gender;
- Denying an employee a raise, access to benefits, or a promotion because of their belonging to a protected class;
- Harassing an individual worker or a group of workers based on their gender or sex;
- Firing or terminating an employee for reasons that depend solely their sex, and not on their performance or other factors; and
- Treating one group of workers better or differently than another group of workers, based on their sex or gender.
The federal law known as the Civil Rights Act of 1964 (or, Title VII) protects against such acts. However, states may have varying definitions and requirements for claims involving employment discrimination under their own separate state laws. Both states and the federal government have various laws prohibiting governmental and private organizations from discriminating against people because of their sex or gender, which prevent employers from discriminating or harassing individuals on the basis of sex and gender. This will be further discussed later on.
Why Should The Term “Transsexual” Be Replaced By The Term Transgender?
When discussing discrimination against the transgender community in any form, it is of the utmost importance to be respectful and aware. In order to truly understand how transgender individuals are discriminated against, you must first understand that discrimination begins with the language that is used to undermine how a transgender individual identifies themselves.
It is absolutely imperative to note that most transgender individuals prefer the term transgender, over the term transsexual. Traditionally, it was believed that the difference between the two terms depended on the difference between gender as “in the mind,” and sex as “bodies and biology.”
However, scientists, transgender rights activists, scholars, attorneys, and the transgender community at large have all clarified that there is no meaningful difference between sex and gender. Additionally, definitions that intend to put biology in opposition to psychology are harmful and must be avoided in order to reduce harm to the transgender community.
Moving forward, this article will only refer to individuals as transgender, and not transsexual. This is because the term transsexual is sometimes used to imply that a person has, or wants to have, gender affirmative surgery. This is not true of every transgender person. Additionally, transgender may be used as an umbrella term for any person who does not identify with the gender or sex that was assigned to them at birth.
It is important to note that many transgender individuals have rejected the term “transsexual” because the term places undue emphasis on “sex,” or that being trans is more about sexuality than gender identity. As such, it is vastly more respectful to use the term transgender. However, in practice, it is most respectful to ask each individual person which word they themselves use to identify their gender.
What Is Transgender Discrimination?
Transgender discrimination refers to a person being discriminated against because they are transgender, or are otherwise gender nonconforming. Gender nonconforming can be described as not adhering to society’s ideas or stereotypes of how a person should look or act based on the sex that they were assigned at birth.
As of August 2017, the Equal Employment Opportunity Commission (“EEOC”) considers transgender discrimination to be a form of gender discrimination. As of a Supreme Court ruling in June 2020, discrimination against transgender people is considered to be discrimination based on sex, and as such is protected under Title VII of the Civil Rights Act.
Employers who engage in the following acts on the basis of a person’s protected class has likely violated Title VII:
- Hiring and firing, meaning actively choosing not to hire or to fire a person based on their protected class, and not on their qualifications or performance;
- Access to training or apprenticeship programs, such as when the employer does not make such advancement opportunities accessible to all employees;
- Scheduling work or mandatory work activities so that they intentionally conflict with an employee’s religious holiday;
- Creating dress codes that intentionally discriminate against protected class employees, such as banning head coverings or considering certain hairstyles to be unprofessional; and/or
- Harassment, or failure to resolve a co-worker’s harassing behavior.
These examples are not exhaustive, but are meant to provide a basic understanding of discrimination against protected classes because transgender employees are considered to belong to a protected class. Some specific examples of transgender discrimination include, but are not limited to:
- Failing to hire an otherwise qualified applicant because they are transgender;
- Firing an employee that is planning to undergo or is currently undergoing gender confirming procedures, such as hormone replacement therapy and surgery;
- Firing an employee who did not initially disclose that they are transgender, as it is not required that they do so;
- Refusing access to a common restroom that corresponds with the employee’s gender identity;
- Denying a promotion or advancement opportunities to an otherwise qualified employee simply because they are transgender;
- Harassing an employee because of their gender identity; and/or
- Creating or enabling a hostile work environment, or encouraging any hostile work environment behavior, because an employee is transgender.
Are There Any Laws Protecting The Restroom Rights Of Transgender Individuals?
There are currently no federal laws which explicitly protect transgender people; as was previously mentioned, transgender people must rely on the sex discrimination protection of the 1964 Civil Rights Act. However, some judges have ruled that discrimination based on being transgender is considered to be a type of sex discrimination.
At the state level, the following prohibit discrimination based on gender identity:
- District of Columbia;
- New Mexico;
- Rhode Island; and
Other states protect transgender people either as a subcategory of sexual orientation or sex discrimination, as was previously discussed. In 2014, California became the first state in the country which allows transgender students to use the restroom or locker room that the student identifies with, as opposed to the restroom or locker room that correlates with the gender they were assigned at birth. At the local level, some school districts give exceptions to individual students who identify with a certain sex.
In terms of using the correct restroom as a transgender employee, this may depend on your state. If your state explicitly or implicitly (through case law) protects transgender people, you may have a lawsuit if your employer refuses to allow you to use the restroom of your choice.
If you are an employer creating a restroom policy, there are a few options:
- Give your transgender employee an exception, and allow them to use the restroom of their choice;
- Make all your existing restrooms unisex; or
- Create a third, unisex restroom.
It is important to note that the third option might still be grounds for a lawsuit, if the employee believes that they are being segregated based on their identity.
Do I Need A Lawyer For Help With Gender Identity and Transgender Restroom Conflicts?
If you are a transgender employee who hase been denied the use of a restroom at work, or a business creating an inclusive and nondiscriminatory bathroom policy, you should consult with a discrimination lawyer.
An experienced attorney can help you understand your legal rights and options according to your state’s specific laws, and will also be able to represent you in court, as needed.