sexual orientation discrimination in the workplace

Transgender Discrimination - Saks Fifth Avenue

Transgender Discrimination - The Lawsuit

A former employee of Saks Fifth Avenue is suing her former employer for transgender discrimination.  Saks has moved to dismiss, arguing that "transsexuals are not a protected class" under Title VII of the Civil Rights Act.  Saks claims that it "believes that all persons are protected against sex discrimination under Title VII" of the Civil Right Act.  Yet its court filings say the exact opposite.

The Plaintiff, Jeyth Jamal, a transgender woman, alleges that her managers referred to her as a man, instructed her to use the men's bathroom, and pressured her to present herself in a more masculine way.  She was also belittled and threatened by her colleagues.

The lawsuit is pending in federal court in Houston, TX.

Transgender Discrimination - The Law

The truth is, whether or not Title VII protects transgender individuals is an open question.  Title VII protects certain employees against discrimination on the basis of race, color, religion, sex or national origin.  The Supreme Court has not ruled on the issue of whether Title VII's prohibition against discrimination on the basis of sex extends to transgender discrimination, and lower court opinions are all over the map.  As a result, some states, including New York, have passed legislation which explicitly makes it unlawful to discriminate on the basis of sexual orientation and gender identity.  Unfortunately, New York is in the minority of states progressive enough to protect these people from discrimination.  The federal government has been similarly slow to act.  ENDA (a federal law designed to prohibit employment discrimination on the basis of LGBT status) continues to be held up in Congress.

Transgender Discrimination - The Upshot

How can discrimination against a person based on how that person expresses his or her gender not be considered gender discrimination? Does anyone honestly believe that the (alleged) treatment that Ms. Jamal endured is not related to her gender?  If she was born a woman, would there be any question?  Just imagine that a woman was referred to as a man, instructed to use the men's bathroom, and pressured to present her gender differently.  Surely that is discrimination.  Why does the fact that Ms. Jamal is transgender make it different?  Either the courts' understanding of Title VII has to change, or the law must change to protect LGBT people from discrimination.

lgbt employment discrimination

lgbt employment discrimination

Laws that Protect LGBT Individuals from Employment Discrimination in New York

What are the laws that protect LGBT individuals from employment discrimination in New York? There are several laws that protect LGBT individuals from employment discrimination in New York. First, there is The Sexual Orientation Non-Discrimination Act (known as "SONDA"), which became effective in January 2003 and prohibits discrimination on the basis of actual or perceived sexual orientation in employment (as well as housing, public accommodations, education, credit, and the exercise of civil rights).  Under SONDA, sexual orientation is defined as "heterosexuality, homosexuality, bisexuality, or asexuality, whether actual or perceived." SONDA therefore protects individuals who are targeted either based on their actual sexual orientation, or based on what the discriminator believes their orientation to be.

Although SONDA does not explicitly cover discrimination against transgender people, it does apply when a transgender person is discriminated against based upon his or her actual or perceived sexual orientation. Furthermore, New York courts have held that transgender people are protected under provisions of the New York State Human Rights Law, including prohibitions against discrimination on the basis of sex and/or disability.  The New York City Human Rights Law expressly affords protection to transgender individuals.

And in terms of pending laws that protect LGBT individuals from employment discrimination in New York, in June 2014 the New York State Assembly voted to pass the Gender Expression Non-Discrimination Act ("GENDA"), which would strengthen New York's human rights law to prohibit discrimination in areas such as employment, housing, public accommodations, and education because of a person’s gender identity or expression. It would also expand the state’s hate crimes law to include crimes against transgender people. The bill must now be approved by the New York Senate.

If you feel you have been the victim of discrimination you can either file (1) a charge of discrimination with the New York State Division of Human Rights, or a local human rights agency, within one year of the most recent act of discrimination OR (2) a complaint directly in State court within three (3) years of the most recent act of discrimination.

lgbt employment discrimination

lgbt employment discrimination