Gender Identity in the Workplace

On June 30, 2016, Governor Maggie Hassan signed an Executive Order that prohibits discrimination against transgender people in state government. The Order makes clear that state agencies will not discriminate in employment or in the administration of any state program on the basis of gender identity or gender expression. The Executive Order also requires state agencies to review and revise their policies to ensure compliance with the ban on discrimination on the basis of gender identity or gender expression. Presently, New Hampshire’s Law Against Discrimination bars all employers, whether a state agency or a private employer, from engaging in discriminatory practices on the basis of age, sex, sexual orientation, race, color, marital status, physical or mental disability, religious creed, or national origin.

Although the Executive Order does not extend to the private sector, private sector employers should be mindful that the Equal Employment Opportunity Commission (“EEOC”) has taken the position that gender identity and sexual orientation are protected classes under Title VII of the Civil Rights Act. Employers would be prudent to be proactive in establishing a non-discriminatory and supportive work environment. Here are a few points to consider:

• Review anti-harassment and anti-discrimination policies and consider adding gender identity or expression and sexual orientation as a protected category
• Provide workplace training and education to supervisors and employees surrounding issues of diversity, sensitivity, and inclusion
• Strategize and consider whether other workplace policies and/or procedures need adjustment (such as: bathroom use policies, dress codes, confidentiality and privacy, sick and medical leave, insurance and benefits, recordkeeping methods, and any other policy that may affect a transitioning or transitioned employee)

Overall, employers should remain open-minded and be prepared for the continual diversification of the workplace.