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Gender Identity and Gender Expression Discrimination

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Employers Cannot Discriminate Against Employees and Job Applicants Based on Gender Identity and Gender Expression.

Gender identity and gender expression discrimination occur when you experience unfair treatment in the workplace because of how you identify your gender or how you express yourself. Gender identity and gender expression are common phrases in today’s society. You may have a gender assigned at birth. However, it may not be the gender you identify with or how you wish to express yourself.

Companies that refuse to accept your gender identity or expression are violating your rights under the law. You have the right to live your truth as the gender for which you identify. You have the right to express yourself however you feel appropriate. If your employer denies you this right, you have the right to work with an LGBTQ attorney to help you stand up for your rights in the workplace.

What Is Gender Identity?

A person is assigned the gender of male or female at birth. However, as a person develops, they may identify as a different gender. For instance, a man may identify as a woman (transgender) or vice versa.

Some people identify as non-binary (they do not identify with any gender) or cisgender (they identify with the gender they were born).

Gender identity also relates to the pronouns a person uses to identify themselves. Some people will use he or she pronouns. Others will use “they” to identify themselves.

Respecting gender identity means others must respect the pronouns you use to identify yourself as well.

Gender expression is how a person shows gender to society. A person may identify as male and yet dress in feminine styles with makeup and nail polish. In contrast, a person may identify as female and choose to wear their hair short and dress in clothing more in line with how men typically dress. How a person expresses themselves and their gender has nothing to do with their gender identity.

For instance, many people may perfectly feel content with their assigned gender. They may be heterosexual. Yet, they may still choose to dress wearing clothes from either or both genders. If you experience discrimination and harassment related to how your express your gender, you have the right to seek justice and compensation.

Employers, CEOs, supervisors, managers, coworkers, clients, customers, and non-employees who use an employee’s or job applicant’s gender identity or gender expression to make negative employment decisions are guilty of discrimination in the workplace.

If they refuse to use the proper pronouns to address a person based on their gender identity, they have committed an act of discrimination. Discrimination based on gender identity and expression targets the LGBTQ community and their allies in employment-related decisions.

Some examples of gender identity and expression discrimination include, but are not limited to:

  • A customer complains to your supervisor that you should not be allowed to work with the public if you are a man with painted nails. Your supervisor reprimands you, even though the dress code and company policy do not mandate men have clear nails.
  • An employer refuses to hire a transgender job applicant. The employer says they do not want “those people” representing the company.
  • Your employer insists employees use the bathroom that fits their assigned gender.
  • Your employer insists you dress based on your assigned gender and the social norms for that gender.
  • Your boss refuses to provide transgender employees medical coverage.
  • Your coworker insists on calling you “she.” You made it abundantly clear that you identify as a male and use the pronoun “he.”
  • Your boss insists all men cut their hair short and all women grow their hair long to match their assigned gender.
  • Your client refuses to work with you once she learns you are a transgender man.
  • You get fired from work because your new manager refuses to work with people who do not identify with their assigned gender.

When you choose to bring your claim for gender identity and expression discrimination against your employer, you are looking for compensation. Should you win your case, you may receive the following remedies from the court:

  • Reinstatement of employment and benefits
  • Revamping of company policy
  • Legal fees
  • Lost Wages
  • Emotional distress
  • Pain and suffering
  • Punitive damages

The laws not only protect you from discrimination in the workplace. They also protect you against retaliation, such as demotions, negative performance reviews, wrongful termination, and shift changes based on your gender identity or expression. Furthermore, you cannot get fired from work or retaliated against because you choose to speak up against workplace discrimination.

Federal laws require you to file a charge with the Equal Employment Opportunity Commission (EEOC) before filing a federal court complaint. You must file your charge within 180 days to 300 days, depending on your state.

State laws, however, provide different statutes of limitations. Some states provide a timeframe of 180 days. Others insist you file your claim within a few years. Consult a discrimination lawyer to determine the best laws for your case and ensure you file your claim within the proper time limit provided by law.

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How Long Will It Take to Settle a Gender Identity and Expression Discrimination Lawsuit?

The court system takes time. You may work out a settlement with your employer before you file your claim with the appropriate agency or court. In that case, you may receive your settlement within 4 to 6 months of speaking with your attorney.

However, most times, the lawsuit gets filed before employers agree to negotiate towards a settlement. Settlement negotiations can take months to even years. You and your employer may reach a settlement at any point before the court enters a final judgment.

What Federal Law Protect Employees from Gender Identity and Expression Discrimination?

In June 2020, the Supreme Court decided gender identity is protected under sex and gender rights as provided under Title VII of the Civil Rights Act of 1964. Title VII prohibits employers and companies from discriminating against employees based on gender identity and expression. Employees working with companies with 15 or more employees are protected from discrimination based on their gender identity and expression.

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What State Laws Protect Employees from Gender Identity and Expression Discrimination?

Many states also maintain laws that protect employees from discrimination based on gender identity and expression. The following state and municipal laws protect employees from discrimination based on gender identity and expression:

  • New York City passed the Gender Expression Non-Discrimination Act in 2019. This act prevents employers from discriminating against employees and job applicants based on gender identity and discrimination.
  • The New Jersey Law Against Discrimination (NJ LAD) expressly prohibits discrimination against employees and job applicants on the basis of gender identity.
  • The City of Philadelphia and Miami-Dade County include gender identity as a protected class. The city’s law against discrimination prohibits employers within these cities from using gender identity to make employment decisions.
  • California’s Fair Employment and Housing Act prohibits employers from using gender identity as a reason to make negative employment decisions against employees and job applicants.

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