Gender Identity Discrimination and Harassment

Transgender people experience harassment and discrimination at alarming rates, and that is unacceptable. The New Hampshire Employee Rights Group is ready and able to utilize all available legal remedies to hold employers responsible when they discriminate against transgender people. (As discussed on this page of our website, the New Hampshire Employee Rights Group also represents gay, lesbian, and bisexual people who experience employment discrimination.)

A person's gender identity is their internal sense of being male, female, a blend of both, or neither. Transgender people have a gender identity and/or gender expression (one's external gender presentation) that differs from cultural expectations based on the sex they were assigned at birth. A person assigned the male sex at birth but who has a female gender identity is a transgender woman; and a person assigned the female sex at birth but who has a male gender identity is a transgender man.

Gender identity discrimination occurs when an employer treats an employee or applicant less favorably than others because of the person's gender identity. For instance, if an employer fired an employee because it learned that the employee was a transgender woman, that would be gender identity discrimination. Another example of gender identity discrimination is when an employer treats a transgender man differently than a man who is not transgender because it thinks the transgender man is not a "real man." (People who are not transgender are sometimes referred to as "cisgender.")

Harassment that creates a hostile work environment is another form of discrimination. Managers, co-workers, clients, or customers can create a hostile work environment through verbal, written, or physical conduct.

Some examples of behavior that may create a hostile work environment include:

• Refusing to allow transgender people to use restrooms that correspond to their gender identity;
• Refusing to call a transgender employee by their chosen name because it does not match the sex they were assigned at birth, such as calling a transgender woman "John" when her name is "Jane";
• Using male pronouns to refer to transgender women and female pronouns to refer to transgender men (this is called "misgendering");
• Dehumanizing transgender people by calling them "thing" or "it";
• Ridiculing a transgender person because their appearance or behavior does not conform to the harasser's belief about what the transgender person's gender "should be";
• Inappropriate comments concerning a specific employee’s gender identity or transgender people in general.

There are numerous ways in which a harassing supervisor or coworker can create a hostile work environment. If you think you may have encountered unlawful gender identity discrimination, contact an experienced employment lawyer.

New Hampshire law prohibits discrimination based on gender identity. In 2020, the U.S. Supreme court held that Title VII of the Civil Rights Act of 1964, which bans sex discrimination, also prohibits gender identity discrimination. In the landmark civil rights case called Bostock v. Clayton County, the Supreme Court recognized that, as a matter of simple logic, it is impossible to discriminate against a person for being transgender without discriminating against that person because of sex.

Employers who discriminate against workers based on their gender identity may be liable for damages. These damages may include monetary compensation for lost pay, lost benefits, and emotional distress. In some cases, punitive damages may also be appropriate. To file an employment discrimination lawsuit alleging a violation of New Hampshire's Law Against Discrimination and the federal Civil Rights Act a worker must first go through certain procedural requirements such as filing a Charge of Discrimination with the appropriate agency.

If you have experienced gender identity discrimination and you want to learn more about your rights, the New Hampshire Employee Rights Group can help. The employment discrimination lawyers of the New Hampshire Employee Rights Group have a deep understanding of the state and federal laws that protect working people. We represent workers throughout the state, from Portsmouth to Pittsburg and all places in between. Call 833.365.2929 or fill out our online contact form to schedule your consultation.