The #MeToo movement shows no sign of slowing, and sexual harassment remains a hot button topic for many employers. As the movement has made plain, sexual harassment obviously implicates conduct or behavior that is sexual in nature, or could be interpreted as sexual in nature. However, this type of conduct is not the only form of sex-based harassment that may arise in the workplace. Employers need to be aware of issues related to gender identity harassment and discrimination and the need for employee awareness LGBT training requirements.
Discrimination or harassment based on sex also includes conduct or behavior that is motivated by a person’s gender, as well as discrimination or harassment that is motivated by pregnancy, childbirth or related medical conditions, because these things are based on a person’s sex and/or gender.
For example, if a supervisor constantly tells a female employee that the supervisor does not think the employee is able to do a certain task as well because she’s a woman, or if the supervisor makes fun of how the employee completes a task because she’s a woman, that may constitute actionable harassment if it’s to the point that it makes the employee feel uncomfortable or offended. Whether or not conduct constitutes harassment is measured by both an objective and subjective standard: the conduct must be severe or pervasive enough to create an objectively hostile or abusive work environment from the standpoint of a reasonable person, and the victim themselves must perceive the environment to be hostile or abusive, as the U.S. Supreme Court found in Harris v. Forklift Sys., Inc, 510 U.S. 17 (1993). Furthermore, as far back as 1971, the U.S. Supreme Court in Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) established that an employer who fails to hire or promote a female for a position based on the possibility that the individual is pregnant, or may become pregnant in the future has engaged in prohibited discrimination.
Gender Identity Discrimination & Harassment Training – LGBT Training
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.
About the Author
Angela Serranzana, Esq. is an attorney that has been representing clients in judicial and administrative proceedings in the areas of employment and labor law since 2005. She has broad experience working with unions, and individual employers and employees, and has appeared before the California Office of Administrative Hearings, the National Labor Relations Board, the California Labor Commissioner, as well as in proceedings at the trial and appellate levels in state and federal court, and in dispute resolution proceedings before the Equal Employment Opportunity Commission and the California Department of Fair Employment and Housing.
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