Sex, Sexual Orientation & Gender Identity: What’s Protected in the Workplace ?

As a working American, you have the right to a discrimination-free workplace. You also have the right to file a claim against your employer if you feel that you have been discriminated against in any way.

What is Discrimination?

Discrimination is defined as the unjust, preferential treatment of individuals on the grounds of an immutable characteristic, such as race, sex or national origin.

Discrimination comes in many forms. Harassment, which is repeated acts of aggression, mockery, belittling or unwanted physical contact against a victim, is one of the most visible types of harassment that can occur. Other forms of discrimination include all of the following when committed based on the aforementioned characteristics as well as others mentioned in specific laws:

  • Failing to hire or promote an individual
  • Termination of an employee
  • Segregating employees into specific portions of a building, positions within a company or branches of a multiple-location company
  • Delegating tasks to specific employees

What is Protected by the EEOC?

The Equal Opportunity Employment Commission (EEOC) is the federal agency charged with enforcing federal laws against discrimination in the workplace. These laws include Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the Equal Pay Act of 1963 and others that protect the rights of certain groups.

Because the EEOC only enforces federal laws, individuals facing discrimination based on their sexual orientation or gender identity might have to cite their states’ discrimination laws when filing a claim. Currently, there are no federal laws that protect individuals from these types of discrimination. However, many states have laws in place to protect LGBT employees. If you are unsure about whether or not your state has such a law, contact an experienced discrimination attorney to discuss your case and learn more about your rights. Your company might also have a rule against this type of discrimination within its own policy manual.

Sex

A person’s sex refers to his or her biological sex, meaning the individual’s genetic makeup and resulting secondary sex characteristics. This includes genitalia as well as characteristics such as body shape, muscle mass and body hair distribution. Workplace discrimination against an individual on the basis of his or her sex is prohibited by Title VII of the Civil Rights Act of 1964.

Sexual harassment is a specific type of sex-based discrimination. It often involves attempting to manipulate an individual into dating or engaging in sexual acts with the offender. A common myth about sexual harassment is that it only occurs to women, perpetrated by men. In truth, people of both sexes can experience sexual harassment at the hands of same or opposite sex harassers.

Sexual Orientation

An individual’s sexual orientation is his or her pattern of sexual and/or romantic attraction to others. Individuals may identify as homosexual, which is the attraction to the same sex and gender, heterosexual, which is the attraction to the opposite sex and gender, bisexual, which is the attraction to both, or asexual, which is the lack of sexual or romantic attraction to others. Within these categories, multiple subsets and degrees of attraction exist. For example, an individual may identify as bisexual but primarily have relationships with people of the opposite sex.

Gender Identity

Gender identity refers to an individual’s sense of being a man, a woman or neither gender. It has nothing to do with the individual’s genetic makeup or external genitalia – one’s gender identity is fully developed by the time he or she is about six years old and is based on his or her identification with and sense of gender attributes, relationships and roles within society. Most individuals’ gender identities match their biological sex. The term used to refer to these individuals is “cisgender.” Individuals whose gender identities do not match their biological sex are known as “transgender.” Although some transgender individuals opt to take hormones and have surgery done to physically change their sex, many do not. Those who opt to change sexes are known as transsexual. One’s gender identity is not connected to or caused by his or her sexual orientation – transgender people may identify as heterosexual, homosexual, bisexual, or asexual.

The Employment Non-Discrimination Act

The Employment Non-Discrimination Act is a bill that, if passed and signed into law, will prohibit discrimination against individuals on the basis of their sexual orientation or gender identity in hiring and employment. If passed, this law would apply to all employers in the United States with 15 or more employees. It has been introduced in all but one Congress since 1994 and is currently awaiting the vote in the House of Representatives. It would be the first federal law to protect gay, lesbian, bisexual, transgender and transsexual employees from workplace discrimination.

If You Are a Victim of Discrimination in Your Workplace

If you feel you have been a victim of discrimination in your workplace, it is important that you keep a log of all instances of discriminatory behavior. Keep all emails, meeting notes and other documentation of treatment that supports your discrimination claim and be sure to include the date and time when each incident occurred. You will need to prove the treatment you received in your workplace was not a few isolated incidents but a pattern of discriminatory behavior that has caused you significant mental or physical suffering, hindering your ability to perform your job.

Before taking legal action, follow your company’s guidelines for filing a discrimination complaint. You might need to bring it to Human Resources or your supervisor. Do not skip this step. In many cases, discrimination issues can be solved internally.

If your company does nothing to address your complaint, contact an attorney who specializes in discrimination cases. You might need to file a claim with the EEOC. If you do, your attorney will provide you with advice about the best way to pursue your claim and represent your case if it goes to court.