Last month the Maine Human Rights Commission (MHRC) issued new guidance for schools regarding the rights of transgender students. The MHRC had hoped to issue formal regulations but Governor LePage blocked that effort. The new MHRC guidance explains how schools are supposed to approach the issues of transgender students’ restroom and locker room access as well as participation in athletics. The MHRC issued more limited guidance in 2013 for employers who employ transgender employees. This new guidance for schools may also help clarify the MHRC’s position in the employment context.
(The MHRC’s new guidance for schools defines “transgender” as “an umbrella term for people whose gender identity and/or expression is different from cultural expectations based on the sex/gender they were assigned at birth.”)
The MHRC issued its 2013 guidance for employers in response to a question about whether an employer could require a transgender employee to use the restroom that matches the sex that they were assigned at birth. The MHRC’s guidance stated that employers must reasonably accommodate an employee’s gender identity. Thus, if a transgender woman (a person who has a female gender identity but was assigned the male sex at birth) requests to use the women’s restroom, an employer would probably have to permit her to use the women’s restroom because she has a female gender identity. This 2013 guidance left unanswered, however, how an employer is supposed to know what an employee’s gender identity is. The new MHRC guidance helps to answer that question.
In a new study, a researcher has found that employers tend to discriminate against female applicants who are lesbian, bisexual, or transgender; applicants who the researcher categorized as “queer.” To conduct the study, the researcher created fictitious resumes that were identical in every respect except some indicated that the applicant served in a leadership position in a LGBT student organization. The leadership role in such organizations was meant to imply that the applicant was “queer.” The researcher sent the resumes to employers seeking administrative, clerical, and secretarial positions in Virginia, Tennessee, the District of Columbia, and New York. She found that employers responded more significantly favorably to the fictitious resumes of women who did not serve in leadership positions with LGBT student organizations than the women who did, i.e., that the employers discriminated against the “queer” applicants.
The researcher’s decision to test hiring for administrative, clerical, and secretarial positions is interesting. Employers looking to fill these positions typically do not discriminate against female applicants because women have traditionally held these positions at greater rates than men. So, sex discrimination was less likely to play a role in the employers’ decisionmaking. Furthermore, stereotypical views of lesbians and bisexual women often include the belief that they are more “masculine” than straight women. Thus, the fictitious “queer” applicants might have been favored over non-queer applicants if the researcher had used a field of work more traditionally dominated by men in her study, such as construction.
This study is another piece of evidence which shows that if you are a “queer” woman, you are more likely to face discrimination when you apply for jobs typically held by women. If you believe that you have been discriminated against because of your sexual orientation or gender identity, that is illegal and you should contact an experienced employment lawyer, like the lawyers at the Maine Employee Rights Group, to learn more about your rights.
Earlier this month, the Occupational Safety and Health Administration (OSHA) issued guidance for employers who employ transgender employees that addresses the issue of restroom access. According to the guidance, employers should permit a transgender employee to use the restroom that corresponds to his or her gender identity. For example, an employer should permit a transgender woman—a person who has a female gender identity but who was designated as male at birth—to use the female restroom.
OSHA sees this as a workplace health and safety issue. “Restricting employees to using only restrooms that are not consistent with their gender identity, or segregating them from other workers by requiring them to use gender-neutral or other specific restrooms, singles those employees out and may make them fear for their physical safety,” says the guidance. “Bathroom restrictions can result in employees avoiding using restrooms entirely while at work, which can lead to potentially serious physical injury or illness.”
“The core principle is that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “OSHA’s goal is to assure that employers provide a safe and healthful working environment for all employees.”
Exxon Mobil, the giant oil and gas corporation based in Texas, announced today that it has decided to change its equal employment opportunity (EEO) policies so that they now prohibit discrimination against lesbian, gay, bisexual, and transgender (LGBT) individuals. Exxon Mobil has been under pressure for years to amend its EEO policies to add protections for LGBT individuals. Despite this pressure, it consistently refused to change its EEO policies. The federal government, though, has now begun to implement an executive order that prohibits federal contractors from discriminating against LGBT individuals. Exxon Mobil is a federal contractor that receives millions of dollars from the federal government.
This past summer, Exxon Mobil claimed that its “zero tolerance” policies ensured protection for LGBT individuals even though those policies did not explicitly say that they prohibited sexual orientation or gender identity discrimination. The Human Rights Campaign (HRC), an organization that advocates for the rights of LGBT individuals, called Exxon Mobil’s claim “a lie.” This past summer, Fred Sainz, HRC’s VP for Communications, said that, “Exxon Mobil’s Equal Employment and Opportunity Policy has clearly and consistently omitted enumerated LGBT non-discrimination protections for its personnel. Though their statement sounds like it’s taking a very progressive stand, it is in fact a master class in doublespeak—crafted, no doubt, by a team of well-paid lawyers. Until a nondiscrimination policy is enumerated, it isn’t worth the paper it’s printed on.”
HRC sees this recent change to Exxon Mobil’s EEO policy as a positive development but has not given Exxon Mobil much credit for making the change. “This wasn’t prompted by a change of principles or corporate values, it represents Exxon’s response to President Obama’s July 2014 executive order that prohibits federal contractors from discriminating against LGBT people,” said Deena Fidas, HRC’s Workplace Equality Program Director. “Exxon had to include these explicit workplace protections or risk losing its federal contracts,” said Fidas.
Meggan Sommerville, a manager in Hobby Lobby’s Aurora, Illinois store, has filed a lawsuit against Hobby Lobby for gender identity discrimination because she claims that it will not permit her to use the women’s restroom. For years, she says that her boss has insisted that she cannot use the women’s restroom because she is a transgender woman. “Hobby Lobby’s taking the fairly absurd position that in order for Meggan to be able to use the female facilities, she has to undergo reconstructive surgery,” her attorney, Jacob Meister, explained.
Sommerville, who has worked for Hobby Lobby since 1998, transitioned from male to female in 2009 and legally changed her name the following year. For purposes of her health benefits, provided by Hobby Lobby, she is classified as female. But, when she used the women’s restroom at work, she received a written disciplinary warning. It is unclear whether Hobby Lobby’s decision not to let Sommerville use the women’s restroom stems from its owners’ decision to run their business consistent with their religious beliefs.
“I’m just looking to be treated equally with every other female in the company—not just in the store, but in the company,” Sommerville said. “If they recognize me as female for certain things, why can’t they recognize me as female for everything?”
Last week, the City of Houston, Texas, passed an ordinance that prohibits employers from discriminating on the basis of sexual orientation and gender identity. Houston is the fourth largest city in the nation, with a population much larger than the entire state of Maine. Under Texas state law and federal law, sexual orientation and gender identity are not protected characteristics. Thus, for LGBT people who work in Houston, this new law provides important protections that they did not previously have.
The Houston City Council voted 11-6 in favor of the law. Opponents and proponents of the law were very vocal in advocating their positions. The City Secretary could not recall a longer list of speakers who wanted to testify before the Council in her six decades serving as Secretary. Many opponents of the ordinance invoked their religious beliefs and they vowed to gather enough signatures to place a referendum on the ballot before next election in order to repeal the ordinance.
Houston’s mayor, Annise Parker, is openly gay and she has an openly gay son. “This is not the most important thing I have done or will do as mayor, but it is the most personally satisfying and most personally meaningful thing I will do as mayor – not just for myself, but for my children and for all the other mothers’ children out there who have an opportunity to have redress if they are discriminated against here in the city of Houston,” Mayor Parker said.
Connecticut has become the most recent state to prohibit employment discrimination against transgendered individuals. On June 4, 2011, the Connecticut Senate passed a bill prohibiting such discrimination and the Governor of Connecticut has promised to sign it into law. In a statement released after the vote, the Governor of Connecticut said, “[t]his bill is another step forward in the fight for equal rights for all of Connecticut’s citizens, and it’s the right thing to do. It’s difficult enough for people who are grappling with the issue of their gender identity, and discrimination against them has no place in our society.”
Maine has prohibited employment discrimination based on sexual orientation and gender identity since 2005. Earlier this year, Nevada enacted a law that prohibits employment discrimination against transgendered individuals. Massachusetts’ legislature is currently debating a similar bill. Recently, Tennessee went in the opposite direction of Maine. It passed a law which nullified a Nashville ordinance that prohibited discrimination against people based on their sexual orientation and gender identity. Tennessee’s law is now the subject of a court challenge.
There is evidence that discrimination against transgendered individuals is rampant. According to the Human Rights Campaign , “in six studies conducted between 1996 and 2006, 20 to 57 percent of transgender respondents said they experienced employment discrimination, including being fired, denied a promotion or harassed.” Connecticut will be the 15th state to pass a state law that prohibits employment discrimination against transgendered individuals.