Gender identity is a protected class against discrimination under the Illinois Human Rights Act.[1] http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2266 The law protects employees against discrimination in all terms and conditions of employment, including hiring, selection, promotion, transfer, pay, tenure, discharge, and discipline. To ensure compliance, employers are encouraged to participate in diversity training,[2] revise workplace policies,[3] and to promote inclusivity.
Employers should also note that the Equal Employment Opportunity Commission (EEOC) https://www.eeoc.gov/ prohibits gender identity discrimination under Title VII.[4] https://www.eeoc.gov/laws/statutes/titlevii.cfm EEOC has found that examples of unlawful discrimination include: failure to hire because a person is transgender,[5] firing an employee based on a gender transition,[6] intentional misuse of a transgender employee’s new name and pronoun,[7] and denying an employee equal restroom access.[8] In interpreting the Illinois Human Rights Act, state courts look to federal law.[9]
The Vital Records Act http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1573&ChapterID=35&Print=True allows individuals to lawfully change their gender markers on identification documents without proof of surgical change.[10] Employers are only required to honor information appearing on a valid ID, but failure to amend records in accordance with an employee’s gender identity change may be considered discriminatory.
Significantly, classifying an employee as the opposite gender does not enhance (traditional) claims of gender discrimination. The Illinois Human Rights Act states that “nothing shall be construed as requiring any employer, employment agency, or labor organization to give preferential treatment or special rights based on sexual orientation or to implement affirmative action policies or programs based on sexual orientation.”[11] Accordingly, a woman who now identifies as male is not afforded the right to claim discrimination as a woman, and vice versa. Doing so would give certain individuals extra rights.
The Law Offices of McLaughlin & Associates assists employers with employment law issues such as gender identity, discrimination and harassment. If you are an employer and have questions, please contact us at 630-230-8434.
[1] Illinois Human Rights Act, 775 Ill. Comp. Stat. 5/1-102.
[2] Id.
[3] See Human Rights Campaign, Transgender Inclusion in the Workplace: Recommended Policies and Practices, https://www.hrc.org/resources/transgender-inclusion-in-the-workplace-recommended-policies-and-practices.
[4] U.S. Equal Employment Opportunity Commission, What You Should Know About EEOC and the Enforcement Protections for LGBT Workers, https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm#other.
[5] Mia Macy, No. 0120120821, 2012 WL 1435995, at *5 (Apr. 20, 2012).
[6] EEOC v. Deluxe Financial Services, Inc., EEOC No. 15-cv-02646-ADM-SER.
[7] Jameson v. U.S. Postal Service, EEOC Appeal No. 0120130992, 2013 WL 2368729 (May 21, 2013).
[8] Lusardi v. McHugh, EEOC Appeal No. 0120133395 (April 1, 2015).
[9] See Zaderaka v. Illinois Human Rights Comm’n, 545 N.E.2d 684, 687 (Ill. App. 2d 1989) (“In analyzing employment discrimination actions brought under the Human Rights Act, the Commission and the Illinois appellate court have adopted the analytical framework set forth in United States Supreme Court decisions addressing claims brought under Title VII of the Civil Rights Act of 1964.”).
[10] 410 Ill. Comp. Stat. 535/1-29.
[11] Illinois Human Rights Act, 775 Ill. Comp. Stat. 5/1-101.1.
Written by: Kenneth S. McLaughlin, Jr., Attorney at Law
NOTE: This publication should not be regarded as legal advice or legal opinion. The content is intended for general informational purposes only. If you have any concerns regarding anything in this publication you may contact your own attorney, CPA, or our law office at 630-230-8434, website www.ma-lawpc.com.