Over the last few years, issues of gender identification have become issues in the workplace. The questions for construction contractors are; what is gender identification and how can you ensure your business and employees are protected. Federal law regarding gender identity protections is weak. However, twenty-three states prohibit employment discrimination based on gender identity. It’s advisable that you seek out an employment attorney to learn the laws in your particular state.
What is Gender Identification?
The phrase gender identity refers to one’s self-identification as a man or a woman, as opposed to one’s anatomical sex at birth. Usually, one’s gender identity matches one’s anatomical sex. However, for transgender people, gender identity does not align with their anatomical sex, or the gender they were assigned at birth. Someone born appearing male may have a strong self-image and self-identification as a woman; someone born appearing female may have a strong internal self-image and self-identification as a man. Some transgender people seek medical treatment in the form of hormone therapy or surgery to have their physical sex changed to agree with their gender identity.
What are the Rules?
Over the last few years, the US Equal Employment Opportunity Commission (EEOC) has issued several rulings regarding gender identification and the workplace. While there are no current discrimination laws specific to gender identification, the EEOC has loosely interpreted parts of Title VII of the Civil Rights Act of 1964 to prohibit discrimination on the basis of gender identity. The EEOC has obtained millions of dollars from private sector employers for discriminating based on gender identity. The courts have also supported the EEOC’s interpretations of Title VII. In general terms, your business cannot discriminate against someone if they can do the job. Unlawful discrimination includes:
- Denying an employee equal access to a common restroom corresponding to an employee’s gender identity.
- Harassing an employee to include failing to use the name and gender pronoun that correspond to the gender identity that the employee identifies – and the employee has communicated to management and employees.
- Denying promotion because of gender identity.
- Firing an employee after learning about their gender identity.
- Being fired for cross-dressing outside the workplace.
While Title VII of the Civil Rights Act of 1964 does not explicitly include sexual orientation or gender identity in its list of protected bases, the Commission, consistent with Supreme Court case law holding that employment actions motivated by gender stereotyping are unlawful sex discrimination and other court decisions, interprets the statute’s sex discrimination provision as prohibiting discrimination against employees on the basis of sexual orientation and gender identity. This article is not to be construed as legal advice. To learn more about the laws of your state or EEOC regulations you should consult with an employment attorney.
