Last time, we began looking at the issue of transgender discrimination in the workplace and the current lack of clarity in the law. As we noted, Title VII of the Civil Rights act of 1964 prohibits discrimination on the basis of sex, but the courts have yet to clarify whether that term includes gender identity. The Equal Employment Opportunity Commission, which is responsible for enforcing the law, does pursue transgender discrimination cases as sex discrimination.
Sex discrimination, according to the EEOC, includes any unfavorable treatment of an individual in the workplace because of the person’s sex. The unfavorable treatment can relate to any aspect of employment, including hiring, termination and anything in between. The law also forbids sexual harassment, which includes not only unwanted sexual advances but also offensive remarks about a person’s sex.
Sex discrimination, to be deemed as such, must meet a certain threshold. It must be serious enough, or happen frequently enough that it creates a hostile or offensive work environment or results in some sort of adverse employment treatment. Employer actions which have no serious impact on employment or which don’t occur frequently enough to create a hostile work environment will not be considered sexual harassment. Employers, of course, can be expected to minimize the effects of their actions, so it is important for employees to have an advocate.
In addition to these points, it is also important to understand that federal law also prohibits employment policies or practices which are neutrally applied but which have a negative impact on employees of one sex. Employers may be able to justify such policies or practices as job-related and necessary to business operations, and can be expected to attempt to do so.
Those who have been subjected to sex discrimination in the workplace need to understand their options for correcting the situation. This involves working with the EEOC, but can also involve filing a separate lawsuit in the federal court system. We’ll speak about this issue in a future post.