The U.S. Court of Appeals for the Sixth Circuit ruled on March 7 that employer R.G. & G.R. Harris Funeral Homes unlawfully discriminated on the basis of sex when it fired a transgender employee after she informed the company that she would begin presenting consistent with her gender identity. In so doing, the court emphatically rejected the employer’s defense invoking religious liberty to discriminate on the basis of sex and other protected minorities. On the heels of the Second Circuit’s decision in Zarda v. Altitude Express, this case represents a further affirmation that existing civil rights laws protect LGBTQ employees from both gender identity and sexual orientation discrimination.
The basketball court isn’t the only place you’ll see interesting uniforms this month. Many employers choose to implement and enforce their own uniform requirements and dress codes at work. But if done incorrectly, uniforms or dress codes may reinforce stereotypical gender roles and put transgender employees and applicants in a very uncomfortable place. In addition, some religious people in the workplace require exceptions to uniform requirements and dress codes in order to adhere to their beliefs. There was even a hotly debated Supreme Court opinion a couple years ago about a religious headwear exception to an employer’s dress code. These increasing changes in the law are forcing employers to take a time out to rethink their uniform and dress code strategies to make sure they do not travel out of bounds.
We have co-authored an alert with our affiliate government relations consulting group, ML Strategies entitled, “Massachusetts State Legislature Takes Action on Major Employment Reform as Legislative Session Ends”, which addresses key legislation concerning pay equity, transgender anti-discrimination, non-compete agreement reform, credit checks reform and wage theft. The alert provides a review of the new laws and their implications for employers.
New York City is finishing off a strong year on the employment law front. Earlier this year, the City Council passed laws that banned the box and all but eliminated credit checks. It also passed a law requiring employers to offer their employees pre-tax transit benefits and instituted a paired testing discrimination investigation program. The Department of Consumer Affairs continued to provide guidance on the paid sick leave law, while the Commission on Human Rights welcomed a new commissioner and implemented new initiatives designed to enhance the Commission’s enforcement efforts. It also released enforcement guidance on the ban the box and credit check laws. Now, as the year comes to a close, we cover the latest flurry of legislative and administrative activity in this three-part series. First up: Enforcement Guidance on Gender Identity/Expression Discrimination.
The City Commission on Human Rights has issued broad-based guidelines that attempt to clearly define the contours of gender identity and gender expression discrimination in the workplace – an issue with which many employers continue to struggle. The guidance provides “bold and explicit” examples of actions that the Commission considers discriminatory and offers best practices for complying with the Human Rights Law.
New York City employers should pay careful attention to these new guidelines as they will impact long-standing workplace policies, practices and behaviors, including dress codes, uniforms, and grooming standards. We summarize the guidance below.
Written by Jonathan Cain
On August 19, 2014, the Department of Labor’s Office of Federal Contractor Compliance Programs issued a directive advising that it will consider cases of discrimination based upon gender identity and transgender status to be violations of Title VII of the Civil Rights Act and Executive Order 11246 (which prohibits employment discrimination by federal contractors). According to the guidance, “disparate treatment of a transgender employee because he or she does not conform to the gender stereotypes associated with his or her biological sex is a form of sex discrimination.” This policy takes effect immediately and does not require any additional rulemaking as it is merely an interpretive ruling under existing regulations.
This recent publication is in addition to the rulemaking that will be initiated to implement Executive Order 13672, issued July 21, 2014, which amends Executive Order 11246 to prohibit federal contractors from discriminating against employees and applicants on the basis of sexual orientation or gender identity, in addition to race, sex, religion and national origin. Executive Order 13672 requires new regulations, which the Department of Labor is directed to publish in October. It will apply to contracts and contract modifications issued after the effective date of the amended regulations
On November 15, 2011, the Massachusetts House of Representatives passed An Act Relative to Gender Identity, by a vote of 115 to 37. The next day, the bill was passed in a voice vote by the Massachusetts Senate. If Governor Patrick signs it, which he is expected to do, the Transgender Act will go into effect on July 1, 2012.