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Sex Discrimination: Gender Identity and Transgender Status are now Protected

Know Your Rights

Employers cannot discriminate in employment based on race, religion, national origin, disability, status as a protected veteran or sex. However, up until recently transgender employees, or job candidates, were not specifically protected.

In early 2014, President Obama signed Executive Order 13672 (EO) adding sexual orientation AND gender identity as independent, protected categories. This EO calls for employers to create a culture of inclusion, and eliminate workplace discrimination on all levels. EO 13672 opens the doors for those struggling with gender identity, and individuals who are transgendered, to be treated with the same level of respect they deserve.


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What is Sex Discrimination?

Sex discrimination in the workplace is simply defined as treating someone (an applicant or an employee) unfairly based on their gender. Sexual discrimination covers more than just sexual harassment, requests for sexual favors, or unwanted sexual advances. Negative treatment based on someone’s inability to conform to a personal notion of sexual stereotypes, such as a masculine woman or an effeminate man, are also included.

It involves all adverse actions taken against someone based on their sex or sexual preferences. Such adverse actions must effect the “terms of conditions or employment.” They can include, but are not limited to, for qualified employees:

  • Denying of a promotion(s)
  • Being laid off
  • Firing
  • Refusing to provide certain assignments or training

For job candidates it could mean refusing to hire or grant an interview for an otherwise qualified candidate.

What Qualifies as Harassment?

What many employees and job candidates don’t realize is that harassment is more than just unwanted advances, it can include derogatory remarks about sex and gender. Victims and perpetrators can be either gender, and the victim and harasser can be the same sex.

While the law doesn’t cover one-off remarks or simple teasing, it is quite clear on how certain types of comments, made repeatedly, can create a hostile work environment, which ultimately can create an adverse employment decision such as termination or stagnation (being turned down for promotions and projects).

Who is a Potential Harasser?

A harasser can be a direct supervisor/manager, a manager of another department, peer, or even a client/customer of the employer.

Can Employment Policies be Sexually Discriminating?

Many people believe that as long as the employment, or company policy, applies to all employees, it is not discrimination. This is not the case.

Policy, even equally applied, can be considered discrimination when it adversely affects a certain sex and is not job-related or necessary to the business’ operation.

If You’re the Victim of Discrimination…

While the law is quite clear on what is legal and what is not, it takes someone with knowledge on interpretation and precedent to help navigate the nuances of a workplace discrimination claim. Working with someone who specializes in employment law is a good first step.

If you feel you’ve been discriminated against due to gender or transgender status, or have questions regarding your employment rights, contact Wenzel Fenton Cabassa, P.A. today to schedule your free consultation.

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