Gender expression refers to a person's outward displays of gender, which may include behavior, clothing, hairstyle, voice, body characteristics, and more. Gender expression is not necessarily the same as gender identity, but both are a fundamental aspect of a person’s identity. Protecting people against discrimination on these bases is essential for ensuring respect for the rights and dignity of all people.
This blog post will delve into the legal landscape surrounding gender expression in the workplace and what it means for employees.
Legal Protections Against Discrimination
The legal protections covering gender expression vary significantly by jurisdiction. As early as 1989, the United States Supreme Court ruled that Title VII of the Civil Rights Act of 1964 prohibits "sex stereotyping." In other words, discriminating against a person because their gender expression deviates from traditional expectations. Since then, the Supreme Court has gone further to explicitly hold in the landmark 2020 Supreme Court case Bostock v. Clayton County that discrimination based on sexual orientation or gender identity is a form of sex discrimination.
Many states and cities have also enacted their own laws that explicitly include gender expression as a protected category. These laws usually prohibit discrimination in employment, education, housing, and public accommodations, providing a layer of protection that complements federal law.
Challenges and Limitations
Despite these advancements, challenges remain. Not all jurisdictions have laws that explicitly protect gender expression. Moreover, the application of these laws can vary in jurisdictions across the country. Not all employers are subject to Title VII, and gaps in legal protections can emerge where local laws are less protective of employees.
Employer Best Practices
For employers, adhering to the law is just the starting point. Creating an inclusive and equitable workplace requires proactive measures. Here are some best practices for employers:
- Implement Inclusive Policies: Establish clear anti-discrimination policies that explicitly include gender expression. Such policies should outline the consequences of discrimination and harassment and provide a clear process for handling complaints.
- Educate and Train: Regular training sessions for all employees, including management, can help foster an inclusive culture. Training should cover the importance of diversity in gender identity, gender expression, and sexual orientation.
- Promote an Inclusive Culture: Encourage respect and understanding among all employees. Celebrate diversity through events and recognitions that include all forms of gender expression.
Employee Rights and Actions
If you face discrimination based on gender expression, there are several steps you can take to protect your rights:
- Document the Discrimination: Keep detailed records of incidents, including dates, times, witnesses, and descriptions of what occurred.
- Report the Issue: Use your employer’s internal complaint processes if available. Reporting the behavior can help create a record and sometimes resolve the issue internally. In some cases, internal reporting can feel unsafe. If that happens, consider consulting an attorney.
- Seek Legal Advice: Consult with an attorney who specializes in employment law to understand your rights and explore your legal options.
- File a Complaint: You may also consider filing a complaint with the EEOC or your state’s fair employment agency.
The Path Forward
Employers subject to Title VII may not discriminate against employees on the basis of "sex stereotyping," gender identity, or sexual orientation. For employees, knowing and asserting your rights is crucial. Everyone deserves a workplace where they can be themselves without fear of discrimination.
If you're looking for a firm that will fight for your rights, be sure to reach out to Nichols Kaster PLLP today at (877) 344-4628 to learn more.
