12/1/06 8:15 AM

D.C. adopts detailed rules on gender identity discrimination

By Joanne Deschenaux

The District of Columbia Office of Human Rights and the Commission on Human Rights have issued final regulations to implement the D.C. Human Rights Act’s prohibition of employment discrimination on the basis of gender identity or expression. The regulations went into effect on Oct. 27.

These regulations are “surprisingly comprehensive,” said Jillian Todd Weiss, assistant professor of law and society at Ramapo College of New Jersey, in a Nov. 27 phone interview. Although eight states (California, Hawaii, Illinois, Maine, Minnesota, New Mexico, Rhode Island and Washington) and numerous municipalities have laws barring employment discrimination based on gender identity, Weiss knew of no other regulations in the country that were as detailed.

Definitions

The new rule adopts the definition of “gender identity or expression” contained in the act: a gender-related identity, appearance, expression or behavior of an individual, regardless of the individual's assigned gender at birth.

This is a very broad definition, said Weiss, who also heads Jillian Todd Weiss & Associates, a consulting firm for transgender workplace diversity issues. “It means that, regardless of my assigned sex at birth, if I identify as female, my gender identity is female.”

The regulations further define “transgender,” not defined in the act, as an adjective that refers to any individual whose identity or behavior differs from stereotypical or traditional gender expectations. The term could refer to transsexual individuals, cross-dressers, androgynous individuals, and others whose appearance or characteristics are perceived to be gender-atypical.

According to Weiss, it is unusual for a law on this topic to define “transgender.” Furthermore, the definition itself is interesting as “there is no requirement of surgical intervention before the employee is considered transgendered.”

Prohibitions

Under the new regulations, covered employers may not:

• Discriminate on the basis of gender identity or expression in hiring, promotion, terms and conditions of employment and termination.

• Deny access to restrooms and other gender-specific facilities that are consistent with the employee’s gender identity or expression. In fact, in the case of single occupancy restrooms, employers must change signs that specify a gender to signs that simply say “restroom.”

• Require individuals to dress or groom themselves in a manner inconsistent with their sex or their gender identity or expression, although employers may prescribe standards of dress that serve a reasonable business purpose, as long as such standards are not discriminatory.

All harassment and actions that create a hostile environment based on gender identity or expression are prohibited. The following may be evidence of unlawful harassment and hostile environment:

• Deliberately misusing an individual's preferred name, form of address or gender-related pronoun.

• Asking personal questions about an individual's body, gender identity or expression, or gender transition.

• Causing distress to an individual by disclosing to others that the individual is transgender.

• Posting offensive pictures or sending offensive electronic or other communications.

Weiss noted that if an employee were to transition from “Ralph” to “Cindy” and someone intentionally called the employee “Ralph,” that could be evidence of harassment. However, she said it is unlikely that one such incident by itself would rise to the level of a violation of law. “What this probably means is that it can amount to harassment if it is done on a consistent basis.”

Totality of circumstances

The totality of the circumstances will be considered, including the nature, frequency and severity of the behavior, whether it is physically threatening or humiliating and whether it unreasonably interferes with the alleged victim. The standard is an objective one, focusing on whether the behavior was sufficiently severe or pervasive to alter the conditions of the victim's employment and to create an abusive environment.

The regulations “make clear to employers that they should treat a transgendered employee in a respectful manner, the same way they would treat anyone who works for them,” Brian Moulton, staff counsel for the Human Rights Campaign, told HR News.

His advice to employers is to be open to having a dialogue with transgendered employees. “These employees just want to come to work and do their jobs like everyone else.”

Joanne Deschenaux, J.D., is senior legal editor for HR News.

Related article:

Equality’s Latest Frontier, HR Magazine, March 2003.

For the latest HR-related business and government news, go daily to www.shrm.org/hrnews.