Transgender and gender-nonconforming employees and job applicants frequently face discrimination, including harassment for not fitting gender stereotypes. The State of Washington explicitly prohibits discrimination and harassment based on gender identity and gender expression.
“Gender identity” refers to an individual’s inner sense of being male, female, or another gender. Gender identity is not necessarily the same as sex assigned or presumed at birth. Everyone has a gender identity.
“Gender expression” is the outward manifestation of internal gender identity, through clothing, hairstyle, mannerisms, and other characteristics.
“Transgender” refers to people whose gender identity, one’s inner sense of being male, female, or something else, differs from their assigned or presumed sex at birth. This is a broad term that covers a broad range of people who experience and/or express their gender differently from what most people expect. They may express themselves as a gender that does not match the sex listed on their original birth certificate, or they may physically change their sex through medical treatment.
What protections exist in the workplace for gender identity, gender expression, or transgender identity?
In the workplace, gender identity, gender expression or transgender identity discrimination or harassment occurs when an employer or co-workers treat an employee or job applicant less favorably because of their gender identity, the way the employee expresses his or her gender, or because an employee is transgender. Such discrimination or harassment can show itself, for example, as:
- adverse treatment of an employee after the employer finds out about the employee’s gender identity or planned transition;
- denying an employee access to workplace restroom facilities available to other employees;
- requiring a transgender employee to use a restroom not consistent with the employee's gender identity or expression; or
- slurs, graffiti, offensive or derogatory comments, or other verbal or physical conduct because of an employee’s gender identity, gender expression or transgender identity.
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Frequently Asked Questions
In general, discrimination occurs when an employer treats an employee less favorably because of their race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), or disability. The law forbids discrimination in every aspect of employment. For example, discrimination can take the form of unfair hiring decisions, undeserved discipline, unequal pay, or even termination. The law provides a limited time for pursing discrimination claims, so we advised you to speak with one of our skilled employment law attorneys as soon as possible if you believe you have been discriminated against at work.
Not all unfair treatment is illegal. For example, your company can fire you because the boss doesn’t like you. The company’s conduct or decision is not illegal unless it is motivated by a person’s status as a member of a protected group (e.g., because the employee is female, or Hispanic, or gay, or a person with a disability) or in retaliation. We are experienced in making these distinctions and can advise you as to whether you have a claim.
It is illegal to harass an employee because of race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to harass someone because they have complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. Harassment can take the form of slurs, graffiti, offensive or derogatory comments, or other verbal or physical conduct. Sexual harassment (including unwelcome sexual advances, requests for sexual favors, and other conduct of a sexual nature) is also unlawful. Although the law does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal if it is so frequent or severe that it creates a hostile or offensive work environment or if it results in an adverse employment decision (such as the victim being fired or demoted). If your working conditions have become so intolerable due to harassment or a hostile work environment, you may be able to resign and still preserve your claims for wrongful termination and “constructive discharge” against your employer. However, if you are considering quitting your job, we strongly advise that you speak to an experienced employment lawyer first.
Generally, the law forbids an employer from punishing job applicants or employees for asserting their rights to be free from employment discrimination in the workplace, including harassment. Under the law, asserting your rights is called "protected activity," and it can take many forms. For example, it is unlawful to retaliate against applicants or employees for: Reporting discrimination or harassment; Resisting sexual advances, or intervening to protect others; Filing or being a witness in a discrimination charge proceeding, complaint, investigation, or lawsuit. Engaging in protected activity, however, does not always shield an employee from all discipline. Our skilled employment law attorneys know the difference and can advise you about your rights.
There are strict time limits for filing charges of employment discrimination, harassment, and retaliation. To preserve the ability to pursue your claims, you should contact one of our skilled employment law attorneys as soon as unfair treatment is suspected. If you fail to act in time, you may be forever barred from bringing the claim before a judge or jury. SGB can represent you in this process and ensure that your claims are not waived.
If you or someone you love has suffered from discrimination or harassment because of their gender identity, gender expression or transgender identity, SGB is here to help. There is no charge for us to review your potential claim. Employment cases are either accepted on contingency or billed hourly. We discuss our fees upfront with our clients. Contact us today or fill out our intake questionnaire.