Is Gender Expression Covered by Non-Discrimination Laws?

With courts seeming to suddenly acknowledge the validity of same sex marriage and striking down prohibitions based on sexual orientation, it brings to light other gender related issues in the workplace that were once either taboo or a source of discomfort to address. Transgender or gender expression is one topic that is receiving more attention in the workplace of late.

Take the case of Jamal v. Saks Fifth Avenue for instance.  Leyth O. Jamal, a transgender woman working for the company, claimed that the retailer violated Title VII by allowing her to be exposed to a hostile work environment. Jamal claimed that she was harassed, belittled, forced to use the men’s restroom and that a manager suggested that she make her appearance more masculine and “separate her home life from work life”, among other things.

Last month Saks responded by arguing that Title VII’s prohibition against gender discrimination did not extend to transgender workers and sought dismissal of the claim, despite a previous binding decision by the EEOC to the contrary and an announcement by Attorney General Eric Holder that the agency would prosecute transgender discrimination as gender discrimination. When the New York Attorney General sent a letter to Saks inquiring about its anti-discrimination policies, the heat became too much for Saks and it recanted its position on gender expression being covered by the law.

Employers should take note. Not only should they avoid taking insensitive positions that are also contrary to the law, but transgender workers are feeling more and more comfort in asserting their rights. Gender expression is protected by Title VII, state law and often local ordinances. Transgender workers require protection against discrimination and harassment in the workplace like other protected classifications. Policies and training should reflect that. Let the Saks case serve as a lesson to employers as well as their supervisors and managers about the scope of anti-discrimination laws.