Sexual Orientation Protection Goes into Effect; Includes Gender Identity and Expression

Employers need to update their policies to reflect this change in the law.  Sample language is posted on the Employment Group page on the Pierce Atwood web site.

The greater challenge for employers may well not be from assuring that employees are not discriminated against on the basis of sexual preference as that concept has come to be known, but rather from how the legislature has defined sexual orientation.  The new law goes well beyond protecting sexual preference by including “gender identity or expression” within the definition of “sexual orientation.” The protection of gender identity casts Maine in the minority as only five other states (California, Illinois, Minnesota, New Mexico and Rhode Island) and the District of Columbia protect against some form of gender identity. 

The terms gender identity and expression are not defined under the MHRA and their inclusion within the ambit of “sexual orientation” is confusing because sexual orientation, gender identity, and gender expression are distinct concepts.  Sexual orientation is generally defined as a person’s sexual attraction to a person of the same or different sex.  However, gender identity is the psychological sense of being male or female, i.e. whether a person thinks of him or herself as a man or as a woman as opposed to his or her biological gender at birth.  Gender expression generally refers to the communication of a person’s sex/gender to others, such as through choice of clothing, hairstyle, and/or mannerisms.

The addition of the terms “gender identity or expression” without providing any guidance to employers as to their interpretation is likely to cause widespread confusion.  An issue that has arisen in other states that protect against gender identity discrimination is whether or not an employee can be required to use the rest room that comports with his or her biological gender, rather than the gender that the employee identifies with.  For instance, is an employer required to allow a biological male, who dresses as a female, to use the female rest room?  What if female employees object that the male employee’s use of the female rest room is creating a hostile work environment and/or violates religious beliefs? 

A few courts that have addressed this issue have found that designation of employee restroom use based on biological gender does not constitute discrimination.  See Goins v. West Group, 635 N.W.2d 717 (Minn. 2001); Hispanic Aids Forum v. Estate of Bruno, 16 A.D.3d 294 (N.Y. 2005). However, this issue is far from settled and there is no law in Maine regarding an employer’s responsibilities in such a scenario.  Thus, an employer would be well advised to consider possible solutions in this situation, such as converting an existing rest room to a gender-neutral facility.

Another question that is bound to arise is compliance with dress codes.  Most employers have dress codes in place that make distinctions based on gender.  However, requiring an employee to comply with the dress code for his or her biological gender, rather than the gender the employee identifies with, could constitute gender identity discrimination.  Furthermore, an employee who chooses not to dress within either gender, for instance a biological male employee who dresses as a woman but also grows a beard, could be engaging in protected gender expression.  

Given the uncertain state of the law, employers should consider taking the following steps:

• Train managers and employees regarding sexual orientation, gender identity and gender expression and their rights and obligations under the MHRA.
  
• Police the use of epithets regarding sexual orientation (i.e., “queer,” “fag,” “butch,” “wimp”) and gender identity (i.e., “he-she,” “Mrs. Doubtfire”).
  
• Modify the dress code to accommodate this new protection, such as by making it more gender neutral.
  
• Honor the request of a transgendered employee to use a name and/or appearance matching his or her gender identity.
  
• Consider possible ways to allow transgendered individuals to use the restroom corresponding to their identified gender, rather than their biological sex.

 If you have any questions, please contact Joanne Pearson at 207-791-1308, or jpearson@pierceatwood.com