Sexual Orientation Discrimination and Trans-gendered People

by on January 7, 2009 · 0 Comment POSTED IN: HR Info Center

Add transgender category to your policies

If you haven’t updated your company’s sexual orientation discrimination policies to include the “transgendered,” you may want to consider doing it.

Right now there’s a trend to recognize transgendered people in discrimination in sexual orientation laws. Six states have already rewritten their laws to include those who choose to dress or act as the opposite gender from their biological sex. Sixty-one cities have similar laws.

And even if your state is not among those with laws on the books (CA, NM, RI, MN, MA and ME), you should know that “transgendered” employees may sue under current sex-harassment and discrimination laws.

Legal Case Bias against transsexuals – Is it sexual appearance discrimination now?

What would you do if you made a job offer to a male applicant, only to have him tell you he was becoming a woman and wanted to be referred to as “she”?

Frankly, some interviewers would likely backpedal as fast as they could. And until recently, there would have been few legal consequences, at least as far as federal law is concerned.

That’s because the courts traditionally have not given Title VII protection to homosexuals, transvestites and transsexuals – the last being the category our hypothetical applicant falls into.

Legal reshuffle
In the last couple of years, though, the legal climate has changed.

Now a U.S. District Court has made a ruling that, if its reasoning catches on, could reshuffle the deck in a major way for transsexuals and employers.

The court said discrimination against a transgendered person because of gender identity would be discrimination “because of sex” as defined by Title VII.

That puts trans-sexuals in the same category as sex discrimination, which is already illegal and subject to Title VII claims.

Who’s not impacted
Homosexuals and transvestites, by contrast, present issues of gender orientation, not identity, the court said.

There’s a long chain of legal cases that deny Title VII protection where the bias is on account of sexual orientation discrimination.

< cite>Cite: Schroer v. Billington, No. 05-1090, D. D.C., 3/31/06.

The case of the cross dressing trucker

A male truck driver was fired after he disclosed to his boss at Winn Dixie that he sometimes dressed and acted like a woman.

The truck driver, sued the grocery chain for sexual appearance discrimination.

In court he argued that he was the victim of sexual stereotyping. Winn Dixie argued that his conduct outside of work could have a negative impact on business: If customers found out about his activities, said the employer, they might not shop at the store.

The court tossed the trucker’s case. In its decision, it said that there was nothing in the language or legislative history of Title VII indicating that Congress intended “sex” to mean anything other than “biological sex” relative to the law.

Looks like the only runs in this trucker’s future will be in his stockings.

Cite: Oiler v. Winn Dixie Stores.

Only in California?

The bellwether state of California just passed a new law that someday could take effect where you live: As of January 1, 2004, there’s a new protected class in the Golden State: transgendered individuals.

Now California businesses may not refuse to hire based on cross-dressing. Neither can they fire, lay off or refuse to give merit raises based on a person’s perceived gender or they may risk a sexual orientation discrimination lawsuit.

I am what I think I am

A new state law says it is no longer a person’s actual gender but his – or her – perceived gender that determines their sex.

According to the law, “gender” means a person’s actual or perceived sex and includes a person’s perceived identity, appearance or behavior, whether or not that identity, appearance or behavior is different from that traditionally associated with a person’s sex at birth.

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