Articles Posted in Transgender discrimination

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This year New Hampshire amended its anti-discrimination laws to include “gender identity” as a protected class. In doing so, New Hampshire has made it unlawful to discriminate against an employee due to their gender identity. Under this new law, “gender identity”  is defined as “a person’s gender-related identity, appearance, or behavior, whether or not that gender-related identity, appearance, or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.”  This new law will provide much needed protection for transgender Granite Staters.

While over half of the states in the nation have not included Gender Identity as a protected class, New Hampshire has taken a step toward equality for a group that is consistently harassed, mistreated and discriminated. Transgender individuals currently face an unemployment rate three times higher than that of the general population, according to the National Center for Transgender Equality.

Twenty states, including Maine and New Hampshire, ban employment discrimination based on gender identity. Additionally, although federal statutes do not include gender identity protection, the Equal Employment Opportunity Commission has interpreted Title VII of the Civil Rights Act of 1964 to provide protection against discrimination.

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Governor LePage recently signed onto a brief filed with the U.S. Supreme Court that asks the Court to review and overturn a decision from the U.S. Sixth Circuit Court of Appeals which held that federal law prohibits employment discrimination against transgender workers. The Sixth Circuit’s holding does not apply to Maine because it covers only certain states in the Midwest. Furthermore, Maine state law explicitly prohibits discrimination against transgender workers. Thus, one should ask why Maine’s governor would get involved in this fight since, no matter what the U.S. Supreme Court does, transgender Mainers will still be protected from employment discrimination.  It certainly looks like he got involved because he thought hostility toward transgender people could help him politically.

The Sixth Circuit is not alone in holding that laws which prohibit sex discrimination cover discrimination against transgender people. For example, the Eleventh and Seventh Circuit Courts of Appeals have both found that discrimination against someone because they are transgender is sex discrimination.

Some have warned that LePage’s needless attack on transgender workers could hurt Maine’s efforts to attract workers from other states to move here. “Viewed simply from an economic development and workforce perspective, these actions aren’t helpful,” said Ed McKersie, founder and president of the Portland staffing and recruiting firm Pro Search Inc. “We want everyone to see our state as welcoming, especially when workforce retention and attraction are so critical to the future of Maine.”

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Starbucks has decided to institute company-wide training on implicit bias. The company’s decision came on the heels of an incident where Starbucks employees called the police to remove some black people from the store for doing something that white people do all the time. These black people were waiting for a friend before they bought their coffee. It is, of course, possible that conscious racism against black people motivated these employees to call the police. However, it is more likely that implicit bias, motives that people don’t think about but that cause them to act in certain ways, caused these Starbucks employees to call the police.

Psychologists have studied the phenomenon of implicit bias for decades. Pretty much everybody has an implicit bias against certain groups of people and in favor of other groups of people. For instance, regardless of how much they abhor racism, almost everyone who is not black has implicit bias against black people which unconsciously drives their actions when they interact with black people.

One of the consultants assisting Starbucks believes that companies need to implement systems where employees work together to combat implicit bias, as opposed to asking individuals to police their own biases. “Any strategy that essentially relies on people to try not to be biased is doomed to fail; that’s the heart of the problem,” said David Rock, director of the NeuroLeadership Institute. “You’ve got to shift the focus from individuals trying not to be biased to teams being able to catch bias,” he said.

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This week the New Hampshire House of Representatives passed a bill that would prohibit discrimination in employment, housing, and places of public accommodation based on a person’s transgender status.  New Hampshire is the only state in New England without such protection.  The bill, which passed the house 195-129, now moves to the Senate.

“Today’s bipartisan vote to pass HB 1319 demonstrates that New Hampshire is ready to truly become the Live Free or Die State. The House of Representatives just voted to move New Hampshire forward by updating our state’s laws to protect transgender people from discrimination,” said Linds Jakows, Freedom New Hampshire Campaign Manager. “Granite Staters from all walks of life have gotten the opportunity to meet their transgender neighbors and have come to understand that HB 1319 is about making sure that everyone has the opportunity to truly live free. We are so grateful to the bipartisan coalition of New Hampshire House members who voted to champion opportunity for all, and we urge the Senate to swiftly send HB 1319 to Governor Sununu’s desk.”

Jakows also responded to the fear-mongering of opponents to the bill.  “We know that most people haven’t yet met someone who’s transgender, and it becomes easy to believe those fear-mongering stories that we all hear when you actually haven’t connected a face and a real story to the issue of discrimination,” Jakows said.

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The National Center for Transgender Equality (NCTE) has released a report showing the results of a survey that it conducted of transgender Mainers.  The survey showed what many already, intuitively, knew:  transgender Mainers face frequent and extreme amounts of discrimination.

According to the NCTE report:

  • 8% of respondents who have ever been employed reported losing a job in their lifetime because of their gender identity or expression.
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Maggie Hasan, the Governor of New Hampshire, recently issued an executive order that prohibits employment discrimination against transgender people based on their gender identity or gender expression.  The New Hampshire Law Against Discrimination already prohibited discrimination based on sexual orientation but not gender identity or expression.  Governor Hasan’s executive order will protect employees that work for New Hampshire State government as well as employees who work for contractors that do business with the State of New Hampshire.
“Throughout our history, it has been clear time and again that we always grow stronger when we work to ensure the full inclusion of all citizens in our democracy, our economy and our communities,” Governor Hassan said. “By making clear that gender identity and gender expression are protected in the State’s anti-discrimination policies, this Executive Order helps ensure that New Hampshire state government welcomes and incorporates the talents and contributions of all of our citizens. As we celebrate Pride Month, this Executive Order reinforces that New Hampshire is a welcoming state where everyone has the opportunity to share in our high quality of life and economic success.”
Maine has prohibited discrimination against transgender people for years.  The Maine Human Rights Commission has interpreted the prohibition against sexual orientation discrimination in the Maine Human Rights Act as including a prohibition against discrimination based on gender identity.  While Governor Hasan’s executive order moves New Hampshire closer to Maine and other New England states that prohibit gender identity discrimination, the executive order does not protect many employees in New Hampshire.  For those transgender employees not covered by the executive order, they may rely on federal law.  The U.S. Equal Employment Opportunity Commission has interpreted the Civil Rights Act’s prohibition on sex discrimination to include a prohibition on gender identity discrimination. 
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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.

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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.

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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.”

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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.

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