Gender Identity Discrimination FAQs

Gender identity discrimination occurs when an employer treats an employee or job applicant differently because of the person’s actual or perceived gender identity or gender expression.

New York State specifically prohibits discrimination based on gender identity or expression, including transgender status, in employment and other areas covered by the New York State Human Rights Law. 

Federal Title VII of the Civil Rights Act of 1964 also prohibits employment discrimination based on sex, including discrimination based on transgender status. 

Depending upon the applicable law and circumstances, protections may apply to:

– Transgender employees
– Transgender job applicants
– Non-binary employees
– Gender-nonconforming employees
– Employees perceived to be transgender
– Employees who are transitioning or intend to transition
– Employees discriminated against because of gender expression

New York’s Human Rights Law defines gender identity or expression broadly to include a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic, regardless of sex assigned at birth. 

Potential examples of gender identity discrimination in the workplace include:

– Refusing to hire someone because they are transgender or non-binary
– Terminating an employee because of gender identity
– Denying a promotion
– Paying an employee differently
– Assigning undesirable work
– Denying employment benefits or opportunities
– Treating an employee differently because of gender expression
– Refusing to recognize an employee’s gender identity
– Subjecting an employee to discriminatory harassment
– Retaliating against an employee who complains about discrimination

Gender identity discrimination can occur during the hiring process or after an employee has worked for an employer for years.

An employer generally cannot make an adverse employment decision because an employee is transgender.

Title VII prohibits employment discrimination based on transgender status, while New York State law separately protects individuals from discrimination based on gender identity or expression. 

The circumstances surrounding an employment decision are important. Evidence such as discriminatory statements, timing, changes in treatment, inconsistent explanations, emails, text messages, and other workplace communications may be relevant when evaluating a potential claim.

Non-binary employees may be protected against workplace discrimination based on gender identity or expression.

Discrimination may include treating an employee differently because the employee’s gender identity does not conform to traditional gender expectations.

Potential examples include denial of employment opportunities, unequal treatment, harassment, or other adverse employment actions because of an employee’s gender identity or expression.

Employees may have protection against discrimination because they are transitioning or intend to transition.

Potential discriminatory conduct may include:

– Termination after announcing a transition
– Refusal to hire or promote an employee
– Reduced responsibilities or undesirable assignments
– Denial of benefits
– Workplace harassment
– Unequal treatment
– Retaliation for complaining about discrimination

New York State specifically recognizes gender identity and expression as protected characteristics under its Human Rights Law. 

Workplace disputes can involve an employee’s name, pronouns, or gendered title.

New York State guidance identifies refusal to use an individual’s requested name or pronouns as conduct that can constitute gender identity or expression discrimination. 

New York City also provides specific protections concerning an individual’s self-identified name, pronoun, and gendered title.

Repeated misgendering, inappropriate use of a former name, or other conduct concerning an employee’s gender identity should be evaluated in the context of the entire workplace situation.

Gender identity harassment may include offensive comments, insults, jokes, stereotypes, deliberate misgendering, unwanted comments about a person’s gender or transition, or other unwelcome conduct based on gender identity or expression.

Harassment does not necessarily have to be sexual in nature. Federal law recognizes harassment based on transgender status as sex-based harassment. 

The person engaging in harassment may be a supervisor, manager, co-worker, customer, client, or another person in the workplace, depending upon the circumstances and applicable law.

Employees may have protection against retaliation for complaining about gender identity discrimination or harassment.

Potential retaliation can include:

– Termination
– Demotion
– Discipline
– Reduced hours
– Denial of promotion
– Unfavorable assignments
– Increased scrutiny
– Other materially adverse treatment

Federal law prohibits retaliation against individuals who oppose unlawful discrimination or participate in a discrimination investigation or proceeding. New York law also provides protections against retaliation for opposing unlawful discriminatory practices. 

If you believe you are experiencing gender identity discrimination at work, consider preserving relevant evidence, including:

– Emails and text messages
– Performance reviews
– Disciplinary notices
– Workplace communications
– Employment policies
– Documentation of discriminatory comments
– Records concerning name or pronoun issues
– Communications concerning a gender transition
– Names of potential witnesses

It can also be helpful to maintain a record of significant incidents, including dates, what happened, who was involved, and potential witnesses.

You do not necessarily have to wait until you are fired before seeking legal advice. Discrimination can involve hiring, compensation, promotions, job assignments, discipline, benefits, harassment, and other terms and conditions of employment. 

Employment discrimination claims can also involve important filing requirements and deadlines. An experienced New York employment discrimination attorney can review the circumstances and explain the legal options that may be available.

Depending upon the circumstances, an employee may be able to pursue a claim through the Equal Employment Opportunity Commission (EEOC), the New York State Division of Human Rights, or a court.

The appropriate forum, filing requirements, and deadlines can vary based on the employer, location, facts, and applicable law. New York State specifically directs individuals who believe they have experienced gender identity discrimination to the Division of Human Rights.