Another area of sex-based discrimination/harassment that has recently gained prominence is conduct or behavior that is motivated by a person’s sexual orientation and/or gender identity. Generally, gender identity refers to an individual’s internal understanding of their own gender. A transgendered individual is someone whose gender identity differs from their biological sex at birth. The District of Columbia has enacted laws or regulations which prohibit employment discrimination on the basis of both sexual orientation and gender identity, as have the following states: Washington, Oregon, California, Nevada, Colorado, New Mexico, Minnesota, Iowa, Illinois, New York, Vermont, Maryland, Delaware, New Jersey, Connecticut, Rhode Island, Massachusetts, New Hampshire, and Maine. In addition, Wisconsin has enacted laws which prohibit employment discrimination on the basis of sexual orientation, but not gender identity.

While federal law does not explicitly include these categories as protected, the Equal Employment Opportunity Commission (EEOC), which is the federal agency charged with enforcing various federal anti-discrimination laws, has interpreted sex discrimination provision of Title VII of the Civil Rights Act of 1964 as prohibiting employment discrimination based on sexual orientation or gender identity. The Commission has based its position on the U.S. Supreme Court’s case law holding that employment actions motivated by gender stereotyping constitute unlawful sex discrimination.

Gender identity can include combinations of gender or neither gender. The important thing to note here is that supervisors should be sensitive to and respectful of how each employee identifies, and should advise other employees to do the same, meaning that employees should refrain from gossiping about or discussing a co-worker’s gender, gender identity, gender expression, or sexual orientation. The EEOC has found hostile work environments where a supervisor intentionally and repeatedly referred to an employee who identified as a female using male names and pronouns well after the supervisor was aware that the employee’s gender identity was female, as it did in Lusardi v. Dept. of the Army, EEOC Appeal No. 0120133395 (Mar. 27,2015). The EEOC has also found that an employer’s failure to revise its records pursuant to changes in gender identity was severe or pervasive enough to constitute a claim of sex-based harassment, as it did in Complainant v. Dept. of Veterans Affairs, EEOC Appeal No. 0120133123 (Apr. 16, 2014). Accordingly, supervisors should address all employees by their preferred names and pronouns, and should take steps to ensure that all other employees do the same.

Another issue with regard to gender identity that may impact employers is the issue of restrooms. OSHA has issued a recommendation that all single-occupancy units, meaning a lockable restroom designed for a single user, be labeled gender-neutral. Some states and municipalities have actually enacted laws to this effect, including California, Vermont, the District of Columbia, New York City, Philadelphia and Seattle. Furthermore, where single-occupancy units are not available, transgendered employees should be permitted to use the restroom facilities that correspond to the gender with which that employee identifies, unless state law dictates otherwise. The EEOC has found hostile work environments based on sex where an employee who identified as female was prevented from using the common female restroom facilities.

Given the wide range of conduct at issue, as well as the focus the #MeToo movement has brought to the workplace, it is vital for employers to ensure that their supervisors and employees have proper and thorough prevention training on all types of sex-based discrimination and harassment including LGBT training.