United States: Gender Identity In The Workplace: A Guide

What employers should know now that it has been included as a protected class in New Hampshire.

Published in NH Business Review 12/21/2018

Effective July 8, New Hampshire added "gender identity" as a protected class under its anti-discrimination law.

Gender identity is defined by the law 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.

Gender-related identity may be shown by providing evidence that includes medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held as part of a person's core identity — provided, however, that gender-related identity shall not be asserted for any improper purpose.

By adding gender identity as a protected class, the state has made it unlawful to discriminate against an employee due to their gender identity — a protection that still does not exist in over half of U.S. states. The law's inclusion of gender identity is a step toward equality in the workforce for a group that consistently experiences harassment, mistreatment and discrimination and currently faces an unemployment rate three times higher than the unemployment rate of the general population, according to the 2015 U.S. Transgender Survey conducted by the National Center for Transgender Equality.

What is gender identity discrimination?

Discrimination occurs when an individual is treated differently in the workplace by an employer due to their gender identity or gender expression. Examples of gender identity discrimination in the workplace include:

  • Failing to hire an applicant because the applicant is a transgender woman or transgender man
  • Firing an employee because the employee is planning, or has made, a gender transition
  • Denying an employee equal access to a common restroom corresponding to the employee's gender identity
  • Harassing an employee because of a gender transition, such as by intentionally and persistently failing to use the name and gender pronoun that correspond to the gender identity with which the employee identifies and which the employee has communicated to management and employees
  • Denying an employee a promotion because of the employee's gender identity or gender expression
  • Discriminating in terms, conditions or privileges of employment, such as providing a lower salary to an employee because of the employee's gender identity
  • Harassing an employee because of their gender identity by, for example, using derogatory terms, making sexually oriented comments or disparaging remarks, or refusing to investigate claims of such harassment by an employee's coworkers and supervisors
  • Discriminating against or harassing an employee because of their gender identity, in combination with another unlawful reason, such as on the basis of transgender status and race.

What employers should know

Although there is currently no specific inclusion of gender identity protection in any federal statute, Title VII of the Civil Rights Act of 1964 has been interpreted by the Equal Employment Opportunity Commission to provide this protection against discrimination.

Through published decisions, amicus curiae briefs and litigation against private companies, the EEOC has clarified the legal basis for concluding that LGBT-related and gender identity-related discrimination constitute sex discrimination under Title VII.

To further protect free expression of gender identity in the workplace, the EEOC and other bodies have begun conducting training and outreach programs to provide guidance to employers regarding non-discriminatory practices in employment. This outreach often provides that the first step an employer can take to remedy discrimination on the basis of gender identity is to review and revise, if necessary, its employment policies to address topics specific to gender identity, such as:

  • Dress code: Often, company dress code policies expect employees to conform to gender stereotypes by requiring, for example, men to wear suits and women to wear skirts. Employers should consider revising their policy to instead use gender-neutral terms such as "business formal" or "business casual."
  • Use of restroom facilities: The Occupational Health and Safety Administration encourages employers to allow employees to use restrooms based on their gender identity, and recommends making available single-occupant, gender-neutral facilities or multiple-occupant, gender-neutral facilities with lockable single-occupant stalls.
  • Update personnel policies: Employers should consider updating their personnel policies to include gender identity-inclusive guidelines for employees to change their personnel records, workplace identification cards and email addresses to reflect their gender identity.
  • Employee confidentiality: Information regarding an employee's past or present gender identity should be kept confidential and company policies should state that disclosure of such information should be made only with the employee's consent and approval.

Participating in and employing these best practices can improve a company's culture of diversity and inclusion and help New Hampshire employers avoid claims for discrimination in the workplace on the basis of gender identity.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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