Gender Identity Discrimination Under Title VII

Sexual orientation and gender identity discrimination have been hot topics in the news as big victories in state and federal courts have been scored, granting individuals equal rights in recent years. As a bi-product of these legal victories, human resources managers are naturally seeking further advice on state and federal laws and regulations regarding the prevention of sexual orientation and gender identity discrimination in the workplace.

Title VII and State Laws

Title VII of the Civil Rights Act of 1964 prohibits discrimination against members of certain protected classes. Among those protected classes enumerated within the law and its implementing regulations are race; color; religion; sex; and national origin. Importantly, federal law is presently silent with respect to issues of sexual orientation.

Several states, including (but not limited to) California, Illinois, Oregon, Colorado, Minnesota, and Washington have enacted comprehensive laws prohibiting discrimination on the basis of sexual orientation and/or gender identity. Moreover, Wisconsin, New York, New Hampshire, and Vermont have enacted laws prohibiting discrimination on the basis of sexual orientation (but not gender identity).

EEOC and Federal Court Interpretation of Title VII

Since 2012, the tide has been changing with respect to EEOC and federal court interpretation of the term “sex” within Title VII. In fact, the EEOC has issued published opinions wherein it has held that discrimination against a person because he or she is transgender is discrimination based on sex, and is therefore discrimination within the meaning of Title VII. Further, federal judges have opined that Title VII can be used to protect homosexual individuals from discrimination in the workplace.

These decisions, which expand the meaning of the term “sex,” as it is used in Title VII, are controversial and will likely face substantial challenges and appeals by conservative groups and other parties interested in preventing the expansion of the anti-discrimination law to include sexual orientation and gender identity as protected classes. Nevertheless, it is safe to assume that more courts will follow suit and recognize equal rights for all employees.

Discrimination lawsuits are costly to defend and can lead to substantial verdicts or settlements as well as public stigma associated with negative press. Human resources professionals need to ensure workplace policies are up-to-date and that managers, supervisors and employees are aware of their rights, responsibilities and obligations to maintain a discrimination and harassment-free workplace.

Syntrio, Inc. specializes in providing Ethics and HR compliance training. Contact us today at 888-289-6670.


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