Your gender identity is the gender with which you identify. It may be different from your anatomical or assigned gender from your birth. There is not a federal law that prohibits discrimination based on gender identity. However, the Equal Employment Opportunity Commission has interpreted the federal prohibition of sex discrimination to include discrimination based on gender identity. Approximately 20 states also outlaw gender identity discrimination.
What is gender identity discrimination?
While your gender identity is the gender with which you identify, it might differ from your gender expression. Some people identify as the opposite gender while still dressing in a way that conforms to their assigned or anatomical genders. Others may choose to dress in a manner that conforms to the genders with which they identify. For example, an anatomical female who identifies as a man might choose to dress in suits and ties and to keep short hair as an outward expression of gender identity.
In states that have laws that prohibit gender identity discrimination, employers are not allowed to discriminate against employees who are gender-nonconforming or transgender. In those states, employers are not allowed to turn down an applicant simply because he or she is transitioning. Employers are likewise prohibited from discriminating against people who want to use a different name or gender than what he or she received at birth.
Where gender identity discrimination is illegal
The District of Columbia and 20 states prohibit discrimination based on gender identity by private employers. In New Jersey, gender identity discrimination is prohibited under the New Jersey Law Against Discrimination. In Pennsylvania, gender identity discrimination is not expressly prohibited under state law. However, the largest cities in the state all have anti-discrimination laws that apply when people are discriminated against based on gender identity.
The EEOC also interprets federal anti-discrimination laws to include gender identity discrimination as a form of sex discrimination. The courts have ruled both for and against the EEOC’s interpretation, which means that there is not a clearcut ban against gender identity discrimination at the federal level.
Gender identity discrimination at the workplace
Workers who are transitioning or who have recently transitioned often face questions about their genders and may be targeted for gender identity discrimination. In New Jersey, gender identity discrimination might arise in several ways.
You might be harassed by your coworkers and supervisors based on your gender identity. If the harassment is severe and creates a hostile work environment, you may have grounds to file a discrimination charge if your employer fails to investigate your complaint or to take action.
You might also run into problems when you want to change your documents to reflect your new name and gender. You will want to find out what the process is to change your name and your gender.
If your employer has a dress and grooming code, you should be allowed to follow the rules that apply to your gender identity. You should also be allowed to use the restroom of the gender with which you identify or to use a unisex bathroom that is available for all employees.
If your coworkers and managers occasionally refer to you by the pronoun for your former gender instead of your new gender, these mistakes are not unlawful. However, if they continually refer to you this way, it may constitute unlawful harassment.
What to do if you are experiencing discrimination based on your gender identity
If you are facing workplace discrimination based on your gender identity or gender expression, you should speak with an employment lawyer who is experienced with gender identity discrimination cases. An attorney at Swartz Swidler may help you to assess the rights that you might have and give you information about the steps that you might take to end it. To learn more, schedule a consultation today by calling Swartz Swidler or by filling out our online contact form.