Sunday, March 18, 2012

Trangender Discrimination Protection Expands in Maryland

Add Baltimore County to the growing list of Maryland counties protecting transgender people from discrimination in the workplace, joining Baltimore City and Howard and Montgomery counties.  The Baltimore County Council approved hotly debated legislation on Tuesday, February 21, 2012, that prohibits discrimination on the basis of gender identity and expression and on sexual orientation in employment, housing, public accommodations and financing.  Other local jurisdictions in Maryland that have anti-discrimination laws such as Prince George's County have not yet addressed the issue.  The State of Maryland Human Rights Act protects employees based on sexual orientation but has not yet added gender identity to its list of protected classes.

While the federal courts grapple with the question of whether transgender discrimination is sex discrimination under Title VII, the federal law which prohibits discrimination in the workplace based on sex, many local jurisdictions like Baltimore County have taken the more direct and expedient legislative approach.  According to the Human Rights Campaign more that 160 counties and cities as well as 16 states and Washington, D.C. have transgender anti-discrimination laws.

Opponents of such legislation often raise the "bathroom issue."  They assert that such legislation will require employers to allow men dressed as women to use women's restrooms leading to uncomfortable situations at best and potential assaults on women at worst.  However, there has been little empirical evidence to support such concerns, leading the Council to reject a legislative amendment to specifically exempt bathrooms, locker rooms and dressing rooms.  Instead, it amended the measure to exempt "distinctly private or personal" facilities, leaving the bathroom issue open to interpretation.  The Council did, however, approve amendments exempting religious institutions and making it clear that employers may still require employees to adhere to grooming standards consistent with their gender identity.

As the Baltimore County Council's actions demonstrate, local jurisdictions are often more agile than larger governmental institutions such as the federal government.  Employers in these jurisdictions need to be aware of local requirements, not just Title VII and other federal workplace laws.  In this case, employers should review their EEO, respect in the workplace and anti-harassment policies to ensure transgender identity is included; they should make sure those policies are distributed to and signed off on by all employees; and, they should ensure their employees are aware of such protections through proper anti-harassment and anti-discrimination training.

By James R. Hammerschmidt, Employment Lawyer.
First Published: The Law Firm of Paley Rothman Blog

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