Employment Non-Discrimination Laws on Sexual Orientation and Gender Identity
Employers with protections for transgender employees, including internal grievance procedures for claims of discrimination based on gender identity, are ahead of the curve of evolving local, state and federal laws.
Under non-discrimination laws and ordinances that include gender identity, employers are barred from firing, refusing to hire, refusing to promote or otherwise adversely treating an applicant or employee who has transitioned genders or plans to undergo a gender transition, or whose gender presentation does not match their designated sex at birth. Some laws and ordinances explicitly protect perceived gender identity and gender expression, while some also provide for restroom access in public locations and places of employment.
Whether a jurisdiction prohibits discrimination based on gender identity may not be totally evident by looking solely at the list of protected categories; some jurisdictions include "gender identity" within their legal definition of "sexual orientation" or have had court rulings that afford some protections for transgender people under other employment laws.
Irrespective of whether employers are based or operate in jurisdictions with non-discrimination laws that include gender identity, it is important that they explicitly include the term "gender identity or expression" in their own policies in order to make it sufficiently clear to current and potential employees that such discrimination is impermissible.
City and County
As of August 2011, more than one hundred and seventy-five cities and counties have outlawed employment discrimination based on sexual orientation, and more than one hundred and thirty-five cities and counties ban it based on gender identity.
As of August 2011, twenty-one states and the District of Columbia have outlawed employment discrimination based on sexual orientation, and 15 states and the District of Columbia ban it based on gender identity.
As of August 2011, no federal law explicitly protects lesbian, gay, bisexual, and transgender people from discrimination in the workplace. Title VII of the Civil Rights Act of 1964, which prohibits workplace sex discrimination, has been interpreted by some courts as protecting transgender workers. However, federal courts of appeal have uniformly held that Congress did not intend that the term "sex" include sexual orientation.
The Employment Non-Discrimination Act
The Employment Non-Discrimination Act would add sexual orientation and gender identity to existing non-discrimination law. As of August 2011, more than 50 major businesses had joined the Business Coalition for Workplace Fairness, which supports legislation that would add both sexual orientation and gender identity to existing classes protected under federal employment law.