Gender Identity Discrimination and Harassment

Gender Identity Discrimination and Harassment

Gender identity refers to a person’s deeply felt internal and individual experience of gender, which may correspond with the sex assigned at birth – or not. Tragically, transgender people experience harassment and discrimination at alarming rates. The Vermont Employee Rights Group is committed to using all available legal remedies to hold employers responsible when they discriminate against transgender people.

What is Gender Identity Discrimination?

Each person has a sense of being male, female, a blend of both, or neither. Transgender people have an internal gender identity that is different from the gender they were assigned at birth. They may also have an external gender expression or presentation that differs from cultural expectations based on the sex they were assigned at birth. A person assigned the male sex at birth but who has a female gender identity is a transgender woman. A person assigned the female sex at birth but who has a male gender identity is a transgender man. Non-binary or genderqueer are terms for gender identities that are not solely male or female. People who identify as the gender they were assigned at birth are sometimes referred to as cisgender.

Gender identity discrimination occurs when an employer treats an employee or applicant differently and less favorably than others because of the person’s gender identity. For instance, if an employer fired an employee because it the employee is a transgender woman or transitioning from one gender to another, that would be gender identity discrimination. Another example is when an employer treats a transgender man differently than a cisgender man because the transgender man is not masculine enough, and not “a real man”.

How Does Gender Identity Harassment Fit In?

Transgender and non-binary individuals experience appalling levels of discrimination and violence at work. A survey conducted by the National Center for Transgender Equality and the National Gay and Lesbian Task force revealed that ninety percent (90%) of those surveyed reported that they had experienced harassment, mistreatment or discrimination on the job or took actions like hiding who they are to avoid it. The ways that transgender and non-binary employees experience harassment range from relatively mild verbal insults to physical and sexual assaults. Some examples of gender identity harassment are:

• Being forced to dress and appear to be the wrong gender to keep a job.
• Being denied access to the bathroom that correspond with the person’s gender identity.
• Calling a transgender woman “Pete” when her name is “Stephanie”.
• Using male pronouns to refer to transgender women and female pronouns to refer to transgender men (this is called “misgendering”).
• Calling a transgender people by the wrong pronoun repeatedly and on purpose.
• Calling a transgender person “thing” or “it”.
• Teasing or bullying a transgender person because their appearance or behavior does not conform to the harasser’s belief about what the transgender person’s gender “should be”.
• Making derogatory comments about a specific employee’s gender identity or transgender people in general.

Very mild forms of harassment may not be illegal. The harassment must be so severe or pervasive that it alters the conditions of employment for the victim or creates an abusive working environment. An experienced employment lawyer can help you determine if your rights are being violated.

Legal Protections for Transgender People

Since 2007, the Vermont Fair Employment Practices Act has explicitly prohibited discrimination based on gender identity. Nearly all employers in Vermont are prohibited from discriminating against workers based on their gender identity. There is a narrow exception for religious organizations.

In 2020, the U.S. Supreme court held that Title VII of the Civil Rights Act of 1964, which bans sex discrimination, also prohibits gender identity discrimination. In the landmark civil rights case called Bostock v. Clayton County, the Supreme Court recognized that, as a matter of simple logic, it is impossible to discriminate against a person for being transgender without discriminating against that person because of sex.

Holding Your Employer Responsible for Gender Identify Discrimination or Harassment

Employers who discriminate against workers based on their gender identity or subject them to gender identify harassment may be liable for damages. These damages may include monetary compensation for lost pay, lost benefits, emotional distress, and attorney’s fees. In some cases, punitive damages may also be appropriate. To file an employment discrimination lawsuit alleging a violation of the federal Civil Rights Act a worker must first file a Charge of Discrimination with the appropriate agency. Under state law, it is not necessary for a worker to file an administrative complaint before proceeding to court.

An experienced employment lawyer will be able to help you decide if there are advantages to be gained by filing an administrative complaint. The Vermont Employee Rights Group can help you achieve justice if you have been subjected to gender identity discrimination or harassment. Call us at 833.365.2929 or fill out this online form for an initial consultation.