The Connecticut legislature has passed HB 6599, amending multiple laws over which the Connecticut Commission on Human Rights and Opportunities (CHRO) has jurisdiction to prohibit discrimination on the basis of gender identity and expression. Connecticut Governor Dannel Malloy has said that he will sign the bill, which will then become effective October 1, 2011. The bill, aimed at protecting transgender people, forbids discrimination in areas including employment, public accommodations, issuance of credit, and the sale and rental of housing.
HB 6599 defines “gender identity or expression” as “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” By its terms, the law provides coverage to transgender employees who transitioned from one gender to another before commencing employment, and those who undergo a gender transition while working for the employer. It also protects employees who do not transition from one gender to another, but who are in some way gender non-conforming.
Excepting religious corporations and entities, Connecticut’s new law will apply to all employers with three or more employees. Absent a bona fide occupational qualification or need, it forbids employers from making decisions regarding the terms and conditions of one’s employment, including but not limited to hiring‚ compensation‚ and firing decisions, based on a person’s gender identity or expression. Harassment on the basis of gender identity or expression is also explicitly prohibited by the law. Individuals aggrieved by an alleged violation of the law may file a complaint with the CHRO, and may subsequently commence a lawsuit in state court as provided by statute.
With the passage of HB 6599, Connecticut joins the District of Columbia and 14 other states — California, Colorado, Hawaii, Illinois, Iowa, Maine, Minnesota, Nevada, New Jersey, Oregon, Rhode Island, Vermont, and Washington — in prohibiting employment discrimination against transgender people. Well over 100 cities and counties around the country — including major municipalities such as Atlanta, Baltimore, Boston, Columbus, Dallas, Detroit, New York City, and Philadelphia — likewise explicitly prohibit such discrimination. Employers should also be aware that state courts in other jurisdictions have held that in some instances, state statutory prohibitions on sex discrimination prohibit discrimination against a person because they are transgender. Some federal courts, including the First Circuit, Sixth Circuit, and Ninth Circuit, have also held that federal statutes prohibiting sex discrimination sometimes protect individuals who are transgender or otherwise gender non-conforming.
Employers with employees in Connecticut and the other states listed above should update their employee handbooks and related nondiscrimination and anti-harassment policies to list “gender identity or expression” as a protected characteristic. Given the increasing number of states and courts that are extending protections to transgender employees, employers operating in other jurisdictions would also be well-advised to amend their policies in the same manner.
Workplace issues involving transgender employees may be new to many employers. Employers with questions about compliance with transgender nondiscrimination laws should consult with counsel for guidance.
For more information on this alert, please contact any of the lawyers listed below:
Boston
John Adkins, john.adkins@bingham.com, 617.951.8551
Jenny Cooper, jenny.cooper@bingham.com, 617.951.8473
Louis Rodriques, Co-chair, Labor and Employment Group, louis.rodriques@bingham.com, 617.951.8340
Los Angeles/Orange County
Jacqueline Cookerly Aguilera, jackie.aguilera@bingham.com, 213.229.8439
Debra Fischer, debra.fischer@bingham.com, 213.680.6418
San Francisco
James Severson, james.severson@bingham.com, 415.393.2242
New York
Douglas Schwarz, douglas.schwarz@bingham.com, 212.705.7437
Tokyo
Mie Fujimoto, mie.fujimoto@bingham.com, 81.3.6721.3138
This article was originally published by Bingham McCutchen LLP.