Gender or sex discrimination occurs in the workplace when a job applicant or employee is treated adversely due to his or her gender or sex. Title VII of the Civil Rights Act of 1964 prohibits sex discrimination, including discrimination based on sex stereotypes, but it does not contain express prohibitions against sexual orientation discrimination or gender identity discrimination. Instead, people in the LGBTQ community find their claims subsumed under the larger prohibition against gender and sex discrimination.
The Equal Employment Opportunity Commission (EEOC) has adopted the position that sexual orientation discrimination and gender identity discrimination are forms of sex discrimination. Any employment action taken against an employee based on their sex violates Title VII, including actions taken based on a job applicant or employee’s failure to conform to sex stereotypes. Accordingly, most sexual orientation discrimination or gender identity discrimination against a job applicant or employee must be couched as a form of sex stereotype discrimination when a claim is pursued under federal law. These claims may also be brought in connection with case law precedent finding discrimination against an employee based on their association with certain groups defined by protected characteristics.
Title VII prohibits discrimination with regard to any aspect of employment, including termination, hiring, pay, job assignments, layoffs, promotions, fringe benefits, and other terms or conditions of employment.
Harassment is one form of discrimination, and sexual harassment can involve quid pro quo or hostile work environment harassment. It can include derogatory statements about somebody’s gender or sex, as well as touching, groping, sexual comments, and violence. Generally, hostile work environment harassment must be very severe or pervasive to constitute actionable sexual harassment. For example, if your boss gropes you because you are transgender, and he is curious about whether you have transitioned, this may be sexual harassment under Title VII, but the issue is complicated by differing interpretations of Title VII around the country.
Transgender employees have been increasingly successful in utilizing Title VII’s sex discrimination prohibition to obtain protection. In Macy v. Holder, the EEOC concluded that a worker’s discrimination claim on the basis of her gender transition was a valid sex discrimination claim under Title VII because an employer is obviously acting on the basis of sex when it acts adversely against an employee because of her gender transition. The EEOC has also ruled that if Title VII protects an employee who does not conform to sex stereotypes in the workplace, it must also protect against discrimination based on someone’s trans status, since status is delineated by actions that contradict what the prevailing gender norms are. Although the EEOC has interpreted Title VII broadly, and in line with Supreme Court precedent, federal lower courts and appellate courts are split on whether gender identity discrimination or sexual orientation discrimination are forms of sex discrimination.
However, past successes with this interpretation of Title VII are not currently a guarantee of protection for LGBTQ individuals in the workplace. For example, President Trump rolled back certain protections provided in connection with President Obama’s Executive Order 13672, which forbade federal agencies and firms with federal contracts from discriminating based on gender identity. The Justice Department filed an amicus brief in a case pending before the United States Court of Appeals for the Second Circuit, arguing that Title VII does not prohibit sexual orientation or gender identity discrimination even implicitly. It is important to consult an attorney who practices employment law in your state and is familiar with LGBTQ issues to determine whether your claim of discrimination is likely to be successful under Title VII.
LGBTQ individuals may find more protection in state or local laws, depending on the state and city. Twenty states, as well as Washington, DC, Puerto Rico, and Guam, specifically ban discrimination based on gender identity in the workplace. In these states or territories, it may be appropriate to sue for gender identity discrimination under state law, rather than federal law.
A minimum of 225 cities and counties around the country also prohibit gender identity discrimination. For example, the New York City Human Rights Law expressly prohibits gender identity and sexual orientation discrimination and harassment, which means that employees in New York City facing these forms of discrimination will not need to frame their discrimination as sex stereotyping. The New York City law does not cap damages, as Title VII does. Similarly, the California Fair Employment and Housing Act (FEHA) also expressly prohibits sexual orientation discrimination and gender identity discrimination.
Certain states have no state law prohibiting sexual orientation or gender identity discrimination, but they are located in a federal circuit that has a ruling expressly interpreting the Title VII prohibition on sex discrimination to include sexual orientation or gender identity discrimination. For example, in Arizona, you may be protected against gender identity discrimination under Title VII, as long as your employer has at least 15 employees. Some states, such as Texas, do not have state laws prohibiting gender identity or sexual orientation discrimination and also are not in circuits with the relevant Title VII case law to provide protection.
