[Real Life HR] Is gender identity considered a protected class under employment law?
Q: Is gender identity considered a protected class under employment law?
A: In 2020, the Supreme Court issued its landmark decision in the case Bostock v. Clayton County which held that the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 (also known as simply “Title VII”) includes employment discrimination against an individual on the basis of sexual orientation or transgender status. So, yes!
Title VII is a federal law that includes a broad range of protections. Among other things, under Title VII employers cannot discriminate against individuals based on sexual orientation or gender identity with respect to:
- hiring
- firing, furloughs, or reductions in force
- promotions
- demotions
- discipline
- training
- work assignments
- pay, overtime, or other compensation
- fringe benefits
- other terms, conditions, and privileges of employment.
Unlawful harassment includes unwelcome conduct that is based on characteristics related to a protected class. To be unlawful, the conduct must be severe or pervasive when considered together with all other unwelcome conduct based on the individual’s sex including gender identity, thereby creating a work environment that a reasonable person would consider intimidating, hostile, or offensive.
Other protected classes under Title VII are color, race, sex, religion, genetic information, and national origin. The ADA (Americans with Disabilities Act) and the ADEA (Age Discrimination in Employment Act) are examples of two other governing Equal Employment Opportunity (EEO) laws that must be understood and followed as determined by your employee count. Most states have enacted supplementary EEO regulations that protect additional characteristics such as familial status or vaccination status.
Familiarize yourself with any pertinent federal and state protections to ensure you’re compliant based on where your employees work. As you understand which protected classes or characteristics are unlawful to discriminate against, evaluate ways that you can improve current practices to create a more welcoming and legally agreeable employment relationship. For gender identity specifically, including preferred pronouns in email signatures, offering “all gender” restrooms, and using gender-neutral terms such as “they/them” in documents such as your employee handbook is a helpful start.
This Q&A does not constitute legal advice and does not address state or local law.
Reply a Comment