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(Last Updated On: February 8, 2022)

By: Liam Hofmeister 

In 2020, the Supreme Court officially recognized gender identity discrimination to be unlawful in Bostock v. Clayton County.  In Massachusetts employment law, however, gender identity has been protected since 2012. But what is gender identity, and how are people’s gender identities protected under state and federal law?

Gender is a social construct that refers to a person’s self-identity. Correspondingly, many people have a gender identity, or an emotional or psychological sense of having a gender.  Someone may identify as a man, a woman, neither, or both, regardless of an individual’s biological sex. People are typically assigned a gender at birth based on their visible sex organs, but someone’s true gender identity may not be revealed or discovered until later in life. Unlike sex, which refers to a person’s sex organs and corresponding biological characteristics, gender and its expression can be completely independent of a person’s biological sex and their physical characteristics. Gender may be expressed via someone’s appearance, traits, or mannerisms, but such gender expressions will not necessarily denote someone’s gender.  Ultimately, gender is personally defined and not always outwardly visible to others, so it’s best for both employers and employees to avoid assuming other employees’ genders, ascribing gender stereotypes to other employees, or treating anyone differently based on assumptions about their gender identity.

An employer’s failure to respect an employee’s gender identity carries the potential for serious legal consequences. For example, it is unlawful for employers to discriminate against employees based on gender identity in Massachusetts. According to M.G.L. 151B, § 4, such discrimination includes refusing to hire, firing, reducing compensation or in other ways affecting the terms, conditions, or privileges of someone’s employment because of their expressed or assumed gender identity.  Opposing such discrimination based on gender identity is considered similarly protected under M.G.L. 151B, § 4, and any adverse employment actions resulting from these complaints could quickly be deemed discriminatory and unlawful retaliation.

In Bostock, the Supreme Court recognized under Title VII of the Civil Rights Act that discrimination based on gender identity could be considered discrimination based on a federally protected class. Title VII prohibits discrimination in hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, and any other term or condition of employment based on an employee’s actual or assumed sex, but not explicitly based on an employee’s gender identity. However, the Bostock court held that discrimination based on gender identity is discrimination due to an individual’s nonconformity to their actual or assumed sex and thus can be classified as a type of sex discrimination.

Discrimination and evidence of discriminatory intent based on gender identity can take many forms. Employees could experience discriminatory harassment, such as offensive or derogatory remarks about their expressed gender identity, their appearance, or their gender transition process. Using an employee’s deadname or incorrect pronouns could also contribute to an inference of discrimination under federal and Massachusetts law. While accidental use of an employee’s deadname or incorrect pronouns will generally not be considered violations of law, intentional and repeated use of an employee’s deadname or incorrect pronouns could be evidence of workplace discrimination or discriminatory intent in adverse employment actions. Segregating employees of certain gender identities out of certain work based on perceived customer preferences, prohibiting people from dressing, or presenting, in ways consistent with their gender identity, or denying an employee access to a bathroom, locker room, or shower that corresponds to their gender identity may also support claims of discrimination or discriminatory intent.  Employees’ complaints about any employment practices they reasonably believe to be discriminatory constitutes protected activity, and any adverse employment actions that arise because of these complaints could be found to be unlawful retaliation. 

Violations of M.G.L. 151B, § 4 pose serious risks for employers, including financial exposure. Employees who are successful in their claims can recover compensatory damages such as back pay, front pay, emotional distress damages, and other contractual damages, in addition to punitive damages. Similarly, employees can recover compensatory and punitive damages under Title VII, but there are limits to how much can be recovered based on the employer’s size.

There are obvious financial incentives for employers to avoid discriminating against employees based on gender identity, but there are also economic incentives for companies to deliberately build a workforce of diverse gender identities.  According to research conducted by corporate management consultant firm McKinsey & Company, the most diverse companies in terms of race, ethnicity, and gender are more likely to have returns above their respective industry’s national medians. “More diverse companies […] are better able to win top talent and improve their customer orientation, employee satisfaction, and decision making, and all that leads to a virtuous cycle of increasing returns.”  Clearly, it’s both ethical and economical for employers to foster a welcoming environment for employees of all gender identities. 

Employment disputes based in gender identity claims must be handled by experienced employment lawyers.  If you or someone you know needs gender identity discrimination advice, contact Rodman Employment Law today.

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