Sex and Gender Discrimination in the Workplace

3/28/2019

Discrimination Based on Sex and Gender

clipsVarious rulings by the U.S. Equal Employment Opportunity Commission (EEOC) extend Title VII of the Civil Rights Act of 1964's prohibition on sex discrimination to prohibit discrimination on the basis of sexual orientation and gender identity.

Under state law, protections against discrimination in the workplace around “sex” and "gender" vary depending on how state laws have defined them or based on court interpretations around the specific workplace protection in question.

Although federal law does not explicitly prohibit employment discrimination based on "gender identity" or "gender expression," recent interpretations in case law under Title VII extend the Act's prohibition of sex discrimination to include bias based on gender identity and gender expression.

Since federal law regarding these protections are weak, employment non-discrimination laws on the state level seek to protect individuals who identify as LGBT from being unfairly fired, not hired, or discriminated against in the workplace by private employers based on sexual orientation or gender identity. In some states, gender protections expand to include protections on “gender identity” and “gender expression.”

Twenty three states prohibit employment discrimination based on "gender identity." Twenty three different states prohibit employment discrimination based on “sexual orientation,” as of March 2019.

Sex discrimination under Title VII of the Civil Rights Act of 1964 also covers discrimination based on pregnancy, childbirth or a related medical condition. This protection extends to protect the worker from their employer to prevent the employer from determining when the employee should take time off based off their pregnancy. If the employee is temporarily unable to perform all the duties of their job, the employer must offer the same accommodations that would be provided to a worker who was on short term disability. This also extends to health care benefits that an employer must cover for employees. Costs related to the employees' pregnancy must be covered by their employer.

Virginia's legislature considered a measure during its recent legislative session to expand workplace protections around sex to include gender discrimination and sexual orientation. Currently, a similar measure is being heard in the Nebraska legislature. Below is a chart comparing all 50 states' laws regarding discrimination based on: sex, gender or sexual orientation. 

STATE

SEX DISCRIMINATION

GENDER IDENTITY DISCRIMINATION

SEXUAL ORIENTATION DISCRIMINATION

Alabama

No data

No data

No data

Alaska

Employers can't discriminate based on sex, unless a distinction on that basis is required by business necessity or a position's reasonable demands.

No data

No data

Arizona

Employers can't discriminate on the basis of sex, unless sex is a bona fide occupational qualification.

No data

No data

Arkansas

Employers can't discriminate based on gender. Gender discrimination includes discrimination based on pregnancy, childbirth, or related medical conditions.

No data

No data

California

Employers can't discriminate based on sex or gender, unless a permissible defense applies. They also can't discriminate based on perceived sex or gender, and can't discriminate based on an association with a person who belongs or is perceived to belong to this protected class. Sex includes pregnancy, childbirth, breastfeeding, or related medical conditions; gender, gender identity, or gender expression; and a third party's perception of these traits. Gender means sex and includes gender identity or expression.
 

Sex discrimination includes discrimination based on pregnancy, childbirth, breastfeeding, or related medical conditions; discrimination based on gender identity or expression; sexual or gender harassment; and harassment based on pregnancy, childbirth, or related medical conditions. The sex discrimination prohibitions don't affect employers' right to use veteran status as a factor in employee selection or to give special consideration to Vietnam-era veterans. They also don't affect bona fide retirement, pension, employee benefit, or insurance plan terms or conditions that follow customary and reasonable or actuarially sound underwriting practices.

Compensation and benefits: Employers can't base any compensation on employees' sex, unless required or permitted by regulation. They can provide or pay for childcare services for employees who are responsible for the care of their minor children.
Employers can't condition the availability of fringe benefits on employees' sex. They also can't condition fringe benefits on employees' status as a head of household, principal wage earner, or secondary wage earner if this practice discriminates against employees of one sex. Fringe benefit plans can't require contributions or set basic benefit amounts that differ for similarly situated employees based on their sex, unless these differences are required by state law. Pension or retirement plans can't set different optional or compulsory retirement ages based on employees' sex.
 

Corporate boards: By Dec. 31, 2019, every publicly held domestic or foreign corporation with principal executive offices in California must have at least one female director on its board; the number of directors can be increased to achieve compliance. By Dec. 31, 2021, every such corporation must have at least three female directors if it has six or more directors total; at least two female directors if it has five directors total; or at least one female director if it has fewer than five directors total. Female means a person who self-identifies as a woman, regardless of her designated sex at birth (Cal. Corp. Code § 301.3 (2018 Cal. Stat. 954 (S.B. 826))).
Selection: Unless a permissible defense applies, employers can't discriminate based on sex in recruiting and can't refuse to provide, accept, and consider job applications from people of one sex. Employers can't ask about applicants' sex on job applications or pre-employment questionnaires, unless this question is based on a permissible defense or asked for record keeping purposes; however, they can record employees' sex for nondiscriminatory personnel purposes. Employers also can't ask applicants questions about childbearing, pregnancy, birth control, or familial responsibilities, unless these questions are related to specific, relevant working conditions. Employers can't refuse to hire female applicants because they are of childbearing age.
Unless a permissible defense applies, employers can't designate jobs exclusively for employees of one sex, maintain separate lines of progression or separate seniority lists based on sex, or use selection criteria based on sex stereotypes. They also can't assign job duties based on sex stereotypes. Sex stereotypes include assumptions about a person's appearance or behavior; gender roles, expression, or identity; and ability or inability to perform certain kinds of work based on myths, social expectations, or generalizations about the person's sex. If employers consider paid work experience in selection or assignment decisions, they also must consider unpaid or volunteer work experience. Employers must provide equal hiring, promotion, and progression opportunities to all qualified employees, although they can use mobility programs to increase the promotion potential of underrepresented groups.

Employers can't discriminate based on gender identity or expression, unless a permissible defense applies. Gender identity means individuals' internal understanding of their gender or a person's perceived gender identity, which can be male, female, a combination of male and female, neither male nor female, a gender different from a person's assigned sex at birth, or transgender. Gender expression means actual or perceived gender-related appearance or behavior, regardless of whether these traits are stereotypically associated with a person's assigned sex at birth. Transgender refers to people whose gender identity differs from their assigned sex at birth, regardless of whether their gender expression differs from the social expectations of their assigned sex at birth.

Employers can't discriminate against employees and applicants who are transitioning, have transitioned, or are perceived to be transitioning. Transitioning is a process that some transgender people go through to begin living as the gender they identify with, rather than their assigned sex at birth. The process can include changes in name and pronoun usage, facility usage, or participation in employer-sponsored activities and undergoing hormone therapy, surgeries, or other medical procedures.

Identification: Employers can't make inquiries that directly or indirectly identify employees 'and applicants' sex, gender, gender identity, or gender expression, unless employers establish a permissible defense; however, employers can ask applicants to provide this information voluntarily for record- keeping purposes.

If employees ask to be identified by a preferred gender, name, or pronouns, including gender-neutral pronouns, employers must abide by this preference unless legal obligations require them to use employees' gender or legal name as indicated in a government-issued identification document. Employers can't ask about or require documentation or proof of employees' and applicants' sex, gender, gender identity, or gender expression as a condition of employment; however, employers can assert a permissible defense based on a bona fide occupational qualification. Employers can't use the BFOQ defense based on the fact that a person is transgender or gender nonconforming or that the person's assigned sex at birth is different from the sex required for the job.

Selection: Unless a permissible defense applies, employers can't use selection criteria based on sex stereotypes. They also can't assign job duties based on sex stereotypes. Sex stereotypes include assumptions about a person's appearance or behavior; gender roles, expression, or identity; and ability or inability to perform certain kinds of work based on myths, social expectations, or generalizations about the person's sex.

Work conditions: Employers must allow employees to use facilities that correspond to their gender identity or expression, regardless of their assigned sex at birth. To ensure all employees' privacy, employers must provide feasible options such as locking toilet stalls, staggered shower schedules, and shower curtains. Employers can't require employees to undergo any medical treatment or procedure, provide proof of such treatment or procedure, or provide any identity document to use gender-specific facilities, but they can ask employees reasonable, confidential questions to ensure their access to comparable, safe, and adequate facilities. Employers also can communicate with employees about their sex, gender, gender identity, or gender expression if they initiate these communications regarding their work conditions.

Employers must label their single-occupancy facilities using gender-neutral language such as “Restroom,” “Unisex,” “Gender Neutral,” or “All Gender Restroom.”

Employers can't discriminate based on sexual orientation, unless a permissible defense applies. Sexual orientation means heterosexuality, homosexuality and bisexuality.

Colorado

Employers can't discriminate against qualified employees or applicants based on sex. Wages, wage schedules, benefits, and other employment terms and conditions can't be related to or based on employees' sex.
Employers can't classify jobs as “male” or “female.” They also can't maintain separate lines of progression or separate seniority lists based on sex if these distinctions could adversely affect employees, unless sex is a bona fide occupational qualification. Seniority systems and lines of progression that distinguish between “light” and “heavy” jobs are unlawful if they covertly classify employees by sex or create unreasonable obstacles for women or men to advance into jobs that they reasonably could be expected to perform.
Employers can't place advertisements in columns that publishers classify based on sex (for example, “Male” or “Female” column headers). Employers can ask applicants whether they are “Male, Female, Mr., Mrs., or Miss” if these inquiries are made in good faith for nondiscriminatory purposes.
Employer contributions for fringe benefits can't discriminate based on sex. Fringe benefits include insurance, pensions, welfare programs, profit-sharing, bonus plans, and leave. Employers can't condition fringe benefits on employees' status as “head of household” or “principal wage earner” for their family if this condition adversely affects employees based on sex.
Employer pension and retirement plans can't establish different optional or mandatory retirement ages based on sex. They also can't differentiate benefits based on sex, including survivors' benefits.

Employers can't discriminate based on transgender status. Employers also can't require employees to adhere to dress or grooming standards that are inconsistent with their gender identity. Transgender means having a gender identity or gender expression that differs from societal expectations based on gender assigned at birth. Gender identity is an innate sense of a one's own gender. Gender expression means external appearance, characteristics or behaviors typically associated with a specific gender. Gender identity discrimination is a form of sexual orientation discrimination.

Employers must allow employees to use gender-segregated facilities, such as restrooms, locker rooms, and dressing rooms that are consistent with their gender identity. If undressing in the presence of others occurs in these facilities, employers must make reasonable accommodations to allow access consistent with employees' gender identity.

Employers can't discriminate against qualified employees or applicants based on sexual orientation. Sexual orientation means a person's orientation toward heterosexuality, homosexuality, bisexuality, or transgender status or anyone's perception of that person's sexual orientation. Sexual orientation discrimination includes gender identity discrimination.

Employers can't classify jobs according to sexual orientation. They also can't maintain separate lines of progression or separate seniority lists based on sexual orientation if this practice adversely affects anyone. If employers grant leave for medical reasons, they must treat leave requests for health-care needs related to sexual orientation in the same way as leave requests for other medical conditions. Wages and wage schedules can't be related to or based on employees' sexual orientation. Job advertisements can't indicate preferences, limitations, specifications, or discrimination based on sexual orientation and pre-employment inquiries can't directly or indirectly express such limitations, specifications, or discrimination. Employers that discover employees' and applicants' sexual orientation through a background check or other means can't take adverse action against them based on this information.

Connecticut

Employers can't discriminate based on sex, unless there is a bona fide occupational qualification or need. Sex discrimination includes discrimination based on pregnancy, childbearing capacity, sterilization, fertility, and related medical conditions.

Employers can't discriminate based on gender identity or expression, unless there is a bona fide occupational qualification or need. Gender identity or expression refers to employees' and applicants' gender-related identity, appearance, and behavior, regardless of whether these traits differ from those traditionally associated with their physiology or assigned sex at birth. Employees and applicants can demonstrate their gender-related identity by providing evidence:

  • Of the medical history, care, or treatment of their gender-related identity.
  • Of their consistent, uniform assertion of their gender-related identity.
  • That their gender-related identity is a sincerely held part of their core identity.
  • That they aren't asserting gender-related identity for improper purposes.

Employers can't discriminate based on sexual orientation, unless there is a bona fide occupational qualification or need. Specifically, employers can't refuse to hire or employ, bar or discharge from employment, or discriminate in compensation or terms, conditions, and privileges of employment. They also can't advertise employment opportunities in discriminatory ways, unless there is a bona fide occupational qualification or need. Sexual orientation means having a preference for heterosexuality, homosexuality, or bisexuality; having a history of such preference; or being identified with such preference.

Delaware

Employers can't discriminate based on sex, unless this factor is a bona fide occupational qualification that is reasonably necessary to normal business operations. Sex discrimination includes discrimination based on pregnancy, childbirth, or related conditions such as lactation. The sex discrimination prohibitions don't affect or interfere with employers' retirement policies or systems or the underwriting or administration of bona fide employee welfare or benefit plans if these policies, systems, and plans aren't a subterfuge for evading the prohibitions.

Employers can't discriminate based on gender identity, unless this factor is a bona fide occupational qualification that is reasonably necessary to normal business operations. Gender identity refers to gender-related identity, appearance, expression, or behavior, regardless of a person's assigned sex at birth. Employees and applicants can demonstrate their gender identity through a consistent, uniform assertion of this identity or through other evidence that their gender identity is a sincerely held part of their core identity; however, they can't assert their gender identity for improper purposes.

Employers can require employees to adhere to reasonable workplace appearance, grooming, and dress standards that aren't otherwise prohibited by Delaware or federal laws. However, employers must allow employees to appear, groom, and dress in ways that are consistent with their gender identity.

Employers can't discriminate based on sexual orientation, unless this factor is a bona fide occupational qualification that is reasonably necessary to normal business operations. Sexual orientation means heterosexuality, homosexuality, or bisexuality.

Florida

Employers can't discriminate based on sex, unless this discrimination is justified by a bona fide occupational qualification that is reasonably necessary to job performance.

No data

No data

Georgia

No data

No data

No data

Hawaii

Employers can't discriminate based on sex, except as permitted for certain bona fide occupational qualifications. Sex means being male or female and conditions associated with being male or female. Employers also can't use physical agility or strength tests and height or weight requirements that discriminate based on sex, unless these tests or requirements are based on a BFOQ. Employers can't base a BFOQ on sex stereotypes; customer, client or employer preferences; or the need to provide sex-segregated facilities, unless the expense of providing these facilities clearly would be unreasonable.

Employers can't ask nonjob-related questions about applicants' sex on job applications or during interviews; however, they can reject applicants for job-related reasons that aren't associated with their sex.

Sex discrimination includes sexual harassment; discrimination based on gender identity or expression; and discrimination based on pregnancy, childbirth, or related medical conditions.

Employers can't discriminate based on gender identity or expression, except as permitted for certain bona fide occupational qualifications. Gender identity or expression includes a person's actual or perceived gender, gender identity and gender-related self-image, appearance or expression, regardless of whether this identity, self-image, appearance or expression is different from what is traditionally associated with the person's sex at birth. Gender identity discrimination is a form of sex discrimination.

Employers can't discriminate based on sexual orientation, except as permitted for certain bona fide occupational qualifications. Sexual orientation means having a preference for heterosexuality, homosexuality, or bisexuality; having a history of one or more such preferences; or being identified with one or more such preferences.

Idaho

Employers can't discriminate against employees and applicants based on sex; however, they can hire based on sex if it is a bona fide occupational qualification that is reasonably necessary to normal business operations.

No data

No data

Illinois

Employers can't discriminate based on sex. Sex discrimination includes discrimination based on marital or parental status; pregnancy, childbirth, or related conditions; and childrearing needs.

Employers can't classify jobs by sex. They also can't establish classification, seniority, or progression systems that discriminate based on sex or hinder employees of one sex from advancing into certain jobs, unless these systems are based on bona fide occupational qualifications (BFOQs).

Employers can't directly or indirectly express any preference, limitation, or specification based on sex in job advertisements, job applications, or pre-employment inquiries, unless sex is a BFOQ.

Employers can't offer, contract for, or participate in fringe benefit programs that discriminate based on sex. Fringe benefits include medical, hospital, accident, life insurance, disability, pension, or retirement benefits; profit-sharing or bonus plans; leaves of absence; and other terms, conditions, or privileges of employment. Pension or retirement plans can't differentiate based on sex in establishing entrance ages, optional or compulsory retirement ages, and employee contributions or benefits. Higher fringe benefit costs for employees of one sex can't be used as a defense against charges of sex discrimination.

Bona fide occupational qualifications: Employers can hire and select employees based on sex if bona fide occupational qualifications exist. BFOQs can't be based on:

  • general sex stereotypes (for example, women are less willing to work overtime than men);
  • Employer customs or traditions and co-worker, client, or customer preferences.
  • The need for separate facilities for men and women, unless the expense to provide the facilities would be unreasonable.
  • Beliefs that women who are raising children shouldn't work or are unreliable employees, or
  • Fears that women who become pregnant are unable to work.

Employers can justify sex-based BFOQs only when:

  • the need exists to employ people of one sex instead of the other to establish that a particular business product or service is intended for people one sex and not the other (for example, female models for women's clothing); or
  • Community standards, that otherwise don't discriminate based on sex, require employing people of a particular sex (for example, male washroom attendants for men's restrooms).

Employers can't discriminate based on actual or perceived gender-related identity, regardless of whether this identity is traditionally associated with a person's designated sex at birth. Gender identity discrimination is a form of sexual orientation discrimination.

Employers can't discriminate based on sexual orientation, which means actual or perceived heterosexuality, homosexuality, bisexuality, or gender-related identity.

Employers aren't required to give preferential treatment or special rights based on sexual orientation. They also aren't required to implement affirmative action policies or programs based on sexual orientation.

Indiana

Employers can't discriminate based on sex, unless a bona fide occupational qualification exists. Employers can maintain sex-segregated restrooms.

No data

No data

Iowa

Employers can't discriminate based on sex, unless this discrimination is based on the nature of the occupation.

Employers can't deny women the right to seek any jobs that they are capable of performing. For example, employers can't institute rules that bar women from working more than a certain number of hours or working at jobs that require lifting or carrying a certain amount of weight. Employers can, however, refuse employment to applicants who aren't qualified to perform required job duties, regardless of sex, or where sex is a bona fide occupational qualification. BFOQs can't be based on sex stereotypes or customer, client, or employer preferences.

Employers must recruit employees of both sexes for all jobs and can't indicate a sex preference in job advertisements, unless sex is a bona fide occupational qualification. Employers seeking to place job orders or advertisements that indicate a sex preference must claim through a signed, sworn statement that such preference is based on a BFOQ. Pre-employment inquiries that express any limitation, specification or discrimination based on sex are prohibited, unless they are based on a bona fide occupational qualification.

Benefits: Employers can't discriminate based on sex in contributing to insurance, pension, welfare, and other similar fringe benefits for employees. Employers don't violate these prohibitions if such contributions are the same for both sexes or if the resulting benefits are equal.

Employers can't condition benefits on employees' status as “head of household” or “principal wage earner” for their family. Employers also can't make benefits available to: male employees' wives and families if such benefits aren't available to female employees' husbands and families; male employees' wives if such benefits aren't available to female employees; or female employees' husbands if such benefits aren't available to male employees.

Facilities: Employers must provide appropriate physical facilities—such as restrooms and changing areas—to employees of both sexes. Employers can't deny employment due to a lack of restrooms or associated facilities, unless they can show that the construction of such facilities would be unreasonable in terms of excessive cost or lack of space.

Employers can't discriminate based on gender identity, unless this discrimination is based on the nature of the occupation. Gender identity means employees' and applicants' gender-related identity, regardless of their assigned sex at birth.

Employers can't discriminate based on sexual orientation, unless this discrimination is based on the nature of the occupation. Sexual orientation means actual or perceived heterosexuality, homosexuality, or bisexuality.

Kansas

Employers can't discriminate based on sex. Employers can, however, refuse employment if sex is a bona fide occupational qualification (BFOQ). Employers can't base a BFOQ on sex stereotypes or customer, client, or employer preferences. Employers can't justify a BFOQ on the necessity for providing sex-segregated facilities, unless the expense would be clearly unreasonable.

Benefits: Employers can't discriminate based on sex when making contributions to insurance or other employee benefit plans. Employers can't condition employee benefits on whether an employee is the “head of household” or “principal wage earner” and can't defend discrimination claims on the grounds that the cost of benefits is greater for one sex than the other.

Employers can't make available benefits for the wives and families of male employees that aren't available for the husbands and families of female employees.

Employers can't use pension or retirement plans that establish different retirement ages on the basis of sex or differentiate benefits on the basis of sex.

Nepotism: Employers can't terminate female employees for the sole reason of marrying male employees. Employers also can't refuse to hire female applicants on the grounds of nepotism rules if the applicants are otherwise qualified to perform the work.

No data

No data

Kentucky

Employers can't discriminate based on sex. Sex discrimination includes discrimination based on pregnancy, childbirth, or related medical conditions.

No data

No data

Louisiana

Employers can't discriminate against employees and applicants based on sex. Specifically, employers can't intentionally: fail or refuse to hire; discharge; discriminate in compensation or terms, conditions and privileges of employment; or limit, segregate or classify employees and applicants in ways that could deprive them of employment opportunities or otherwise adversely affect their employment status. Employers also can't discriminate in admission to or employment in apprenticeship or other training programs. In addition, employers can't print or publish job notices or advertisements that indicate preferences, limitations, specifications or discrimination based on sex, unless sex is a bona fide occupational qualification.

Employers can hire or employ (or admit to or employ in apprenticeship or other training programs) based on sex if sex is a bona fide occupational qualification that is reasonably necessary for normal business operations. Employers also can apply different compensation standards or different terms, conditions and privileges of employment pursuant to bona fide seniority or merit systems, pursuant to systems that measure earnings by production quantity or quality or to employees who work in different locations if such differences aren't the result of an intention to discriminate based on sex.

No data

No data

Maine

Employers can't discriminate based on sex.

Employers can't discriminate based on sex when offering fringe benefits. Employers can't condition employee benefits on whether an employee is the “head of household” or “principal wage earner” and can't defend discrimination claims on the grounds that the cost of benefits is greater for one sex than the other.

Employers can't make available benefits for the wives and families of male employees that aren't available for the husbands and families of female employees. Employers aren't required to grant paid or unpaid leave for child care. Employers that do provide such leave must provide it to both sexes.

Employers can't use pension or retirement plans that establish different retirement ages on the basis of sex or differentiate benefits on the basis of sex.

Employers can't discriminate based on gender identity or expression. Gender identity is employees' and applicants' gender-related identity, regardless of whether this identity differs from what is traditionally associated with their assigned sex at birth; it includes a gender identity that is transgender or androgynous. Gender expression is how employees and applicants express their gender identity, including through dress, appearance, manner, speech and lifestyle, regardless of whether this expression differs from what is traditionally associated with their assigned sex at birth. Gender identity discrimination is a form of sexual orientation discrimination.

Employers can't discriminate based on sexual orientation, which means actual or perceived heterosexuality, bisexuality, homosexuality or gender identity or expression.

Maryland

Employers can't discriminate based on sex, although they can make hiring or employment decisions based on sex if sex is a bona fide occupational qualification that is reasonably necessary to normal business operations.

Employers can't discriminate based on gender identity. Gender identity means a person's gender-related identity, appearance, expression, or behavior, regardless of the person's assigned sex at birth. Gender identity can be shown through a consistent, uniform assertion of the person's gender identity or other evidence that gender identity is a sincerely held part of the person's core identity.

Employers must allow employees to appear, groom, and dress in a manner consistent with their gender identity.

Employers can't discriminate based on sexual orientation. Sexual orientation means homosexuality, heterosexuality, or bisexuality.

Employers aren't required to offer health insurance benefits to unmarried domestic partners. They also aren't liable for reasonable actions taken to verify employees' and applicants' sexual orientation in response to charges of sexual orientation discrimination filed against employers.

Massachusetts

Employers can't discriminate based on sex, unless this discrimination is based on a bona fide occupational qualification. They also can't require employees to use a surname based on their sex. Sex discrimination includes sexual harassment.

Employers can't discriminate based on gender identity, unless this discrimination is based on a bona fide occupational qualification. They also can't require employees to use a surname based on their gender identity. Gender identity refers to employees' and applicants' gender-related identity, appearance, and behavior, regardless of whether these traits are traditionally associated with their physiology or assigned sex at birth. Employees and applicants can demonstrate their gender-related identity by providing evidence of the medical history, care, or treatment of such identity; evidence of consistent, uniform assertion of such identity; or other evidence that their gender-related identity is a sincerely held part of their core identity. However, they can't assert their gender-related identity for improper purposes.

Employers can't discriminate based on sexual orientation, unless this discrimination is based on a bona fide occupational qualification. Sexual orientation means having or being identified as having an orientation for heterosexuality, bisexuality, or homosexuality.

Michigan

Employers can't discriminate based on sex, unless sex is a bona fide occupational qualification that is reasonably necessary to normal business operations. Sex discrimination includes sexual harassment and discrimination based on pregnancy, childbirth, or related medical conditions. [Note: On May 22, 2018, the Michigan Department of Civil Rights announced that its Civil Rights Commission voted to issue an interpretive statement clarifying that sex discrimination includes discrimination based on gender identity and sexual orientation. The department also stated that it would begin processing complaints of such discrimination. On July 20, 2018, the Michigan attorney general's office issued an opinion finding that the interpretive statement is invalid because it conflicts with the state legislature's intent and the plain language of the state's fair employment practices law (Mich. Att'y Gen. Op. No. 7305). On July 23, 2018, the commission reiterated support for the interpretive statement and directed the department to continue investigating complaints of sexual orientation and gender identity discrimination.]

[Note: On May 22, 2018, the Michigan Department of Civil Rights announced that its Civil Rights Commission voted to issue an interpretive statement clarifying that sex discrimination includes discrimination based on gender identity and sexual orientation. The department also stated that it would begin processing complaints of such discrimination. On July 20, 2018, the Michigan attorney general's office issued an opinion finding that the interpretive statement is invalid because it conflicts with the state legislature's intent and the plain language of the state's fair employment practices law (Mich. Att'y Gen. Op. No. 7305). On July 23, 2018, the commission reiterated support for the interpretive statement and directed the department to continue investigating complaints of sexual orientation and gender identity discrimination.]

No data

Minnesota

Employers can't discriminate based on sex, unless this discrimination is justified by a bona fide occupational qualification. Employers' fringe benefit programs can't discriminate based on sex, unless there is a valid business reason.

Employers can't discriminate based on gender identity. Gender identity means having or being perceived as having a self-image or identity that isn't traditionally associated with a person's sex.

Employers can't discriminate based on sexual orientation, unless this discrimination is justified by a bona fide occupational qualification. Sexual orientation is an actual or perceived emotional, physical, or sexual attachment or orientation for such attachment to another person without regard to the person's sex. Sexual orientation discrimination includes gender identity discrimination. Affirmative action with respect to homosexuality or bisexuality isn't required.

Mississippi

No data

No data

No data

Missouri

Employers can't discriminate based on sex. Specifically, employers can't make sex-based distinctions in employment opportunities, wages, hours, or other conditions of employment. For example, employers can't deny employment to women with young children, unless the same rule applies to men. Employers also can't discharge employees of one sex in a particular job classification when they reach a certain age, unless the same rule applies to members of the opposite sex. In addition, employers' wage schedules can't be related to or based on sex.

Employers also can't deny female employees the right to pursue any job they are qualified to perform. For example, employers can't bar women from jobs that require a certain number of hours or bar them from jobs that require lifting or carrying a certain amount of weight. Employers also can't classify jobs as “male” or “female” or maintain separate progression lines or seniority lists based on sex, unless sex is a BFOQ. Seniority systems or progression lines that distinguish between light and heavy jobs are unlawful if they effectively classify jobs by sex or create unreasonable obstacles to advancement for members of either sex. Employers must take steps to make jobs available to all qualified employees in all job classifications, regardless of their sex.

Facilities: Employer policies and practices must ensure appropriate physical facilities for people of both sexes. Employers can't refuse to hire people of one sex or deny them a particular job because appropriate restroom or related facilities aren't available.

Fringe benefits: Employers can't discriminate based on sex regarding fringe benefits, which include medical, hospital, accident, or life insurance, retirement benefits, profit-sharing or bonus plans, leave, and other terms, conditions, and privileges of employment. For example, employers can't condition fringe benefits on whether employees are the head of their household or the principal wage earner of their family. Employers also can't offer fringe benefits to male employees' dependents if these benefits aren't offered to female employees' dependents. In addition, employers can't offer fringe benefits to male employees' wives if these benefits aren't offered to female employees and vice versa. Employers can't cite higher benefit costs for people of one sex as a defense against sex discrimination charges.

Employer contributions for insurance, pensions, welfare programs, and other similar fringe benefits are lawful if their benefits are equal for men and women.

Recruiting practices: Unless sex is a bona fide occupational qualification (BFOQ), employers:

  • must recruit employees of both sexes for all job openings;
  • can't express any sex-based preference in job advertisements;
  • can't directly or indirectly express any sex-based limitation, specification, or discrimination in pre-employment inquiries; and
  • must give employees and applicants of both sexes an equal opportunity regarding any available job that they are qualified to perform.

The BFOQ exception can't be based on stereotypes or the preferences of coworkers, employers, clients, or customers. Employers can ask applicants if they are male or female and if they go by Mr., Mrs., or Miss when these inquiries are made in good faith for nondiscriminatory purposes.

No data

No data

Montana

Employers can't discriminate based on sex, unless a position's reasonable demands require distinctions based on sex. Sex discrimination includes discrimination based on pregnancy.

No data

No data

Nebraska

Employers can't discriminate based on sex, unless a bona fide occupational qualification exists. Sex discrimination includes discrimination based on pregnancy, childbirth or related medical conditions.

No data

No data

Nevada

Employers can't discriminate based on sex, unless sex is a bona fide occupational qualification that is reasonably necessary to normal business operations.

Employers can't discriminate based on gender identity or expression, unless gender identity or expression is a bona fide occupational qualification that is reasonably necessary to normal business operations. Gender identity or expression means a person's gender-related identity, appearance, expression, or behavior, regardless of the person's assigned sex at birth. Employers must allow employees to appear, groom, and dress in a manner consistent with their gender identity or expression.

Employers can't discriminate based on sexual orientation, unless sexual orientation is a bona fide occupational qualification that is reasonably necessary to normal business operations. Sexual orientation means having or being perceived as having an orientation for heterosexuality, homosexuality, or bisexuality.

New Hampshire

Employers can't discriminate based on sex, unless a bona fide occupational qualification applies. Sex discrimination includes sexual harassment and discrimination based on pregnancy or related medical conditions.

Employers can't discriminate based on gender identity, unless a bona fide occupational qualification applies. Gender identity is a person's gender-related identity, appearance, or behavior, regardless of whether these traits are traditionally associated with the person's physiology or assigned sex at birth.

Gender-related identity can be shown by providing evidence such as medical history, care, or treatment of the gender-related identity; consistent and uniform assertion of the gender-related identity; or any other evidence that the gender-related identity is a sincerely held part of a person's core identity. Employees and applicants can't assert gender-related identity for any improper purpose.

Employers can't discriminate based on sexual orientation, unless a bona fide occupational qualification applies.

New Jersey

Employers can't discriminate based on sex. However, they can reject applicants on that basis if sex is a bona fide occupational qualification that is reasonably necessary to normal business operations (for example, employers can require female attendants for ladies' restrooms).

Employers can't discriminate based on gender identity or expression. Gender identity or expression is a person's actual or perceived gender-related identity or expression, regardless of whether it is stereotypically associated with the person's assigned sex at birth. Employers can require reasonable appearance, grooming, or dress standards, as permitted by New Jersey or federal law, but must allow employees to appear, groom, or dress in a way that is consistent with their gender identity or expression.

Employers can't discriminate based on affectional or sexual orientation. Affectional or sexual orientation refers to being perceived as, identified as, or presumed to be heterosexual, homosexual, or bisexual in practice, identity, or expression.

New Mexico

Employers can't discriminate against otherwise qualified employees and applicants based on sex, unless such discrimination is based on a bona fide occupational qualification or another statutory prohibition. Sex discrimination includes sexual harassment and discrimination based on marital status or pregnancy, childbirth, or related medical conditions.

Employers can't discriminate against otherwise qualified employees and applicants based on gender identity, unless such discrimination is based on a bona fide occupational qualification or another statutory prohibition. Gender identity means the perception of a person's identity as male or female, by the person or another person, based on appearance, behavior, or physical characteristics that accord or conflict with the person's physical anatomy, chromosomal sex, or sex at birth. Employers can't use the fair employment practices law to adopt or implement a quota based on gender identity.

Employers can't discriminate against otherwise qualified employees and applicants based on sexual orientation, unless such discrimination is based on a bona fide occupational qualification or another statutory prohibition. Sexual orientation means actual or perceived heterosexuality, homosexuality, or bisexuality. Employers can't use the fair employment practices law to adopt or implement a quota based on sexual orientation.

New York

Employers can't discriminate based on sex. Sex includes gender identity and transgender status under N.Y. Comp. Codes R. & Regs. tit. 9, § 466.13.

Employers can't discriminate based on gender identity or transgender status under the regulations implementing the fair employment practices law (N.Y. Comp. Codes R. & Regs. tit. 9, § 466.13). Gender identity means having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, regardless of whether such traits are different from those traditionally associated with a person's assigned sex at birth. Transgender means having a gender identity that is different from a person's assigned sex at birth. Discrimination based on gender identity or transgender status is a form of sex discrimination. Harassment based on gender identity or transgender status is considered sexual harassment.

Effective Feb. 24, 2019, employers can't discriminate based on gender identity or expression under the fair employment practices law (N.Y. Exec. Law § 296 (2019 N.Y. Laws 8 (S.B. 1047)). Gender identity or expression is a person's actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic, regardless of the person's assigned sex at birth, and it includes transgender status.

Employers can't discriminate against employees, applicants, and interns based on gender dysphoria if they can reasonably perform their job duties with or without reasonable accommodations. Gender dysphoria is a recognized medical condition related to having a gender identity that is different from a person's assigned sex at birth. Discrimination based on gender dysphoria is a form of disability discrimination. Harassment based on gender dysphoria is considered harassment based on disability.

Employers can't discriminate based on sexual orientation. Sexual orientation means actual or perceived heterosexuality, homosexuality, bisexuality, or asexuality.

North Carolina

Employers can't discriminate based on biological sex.

No data

No data

North Dakota

Employers cannot discriminate based on sex. Sex discrimination includes sexual harassment and discrimination based on pregnancy, childbirth or related disabilities.

No data

No data

Ohio

Employers cannot discriminate based on sex, unless sex is a bona fide occupational qualification. Sex discrimination includes sexual harassment and discrimination based on pregnancy, childbirth or related medical conditions.

Employers can, however, refuse employment if sex is a bona fide occupational qualification that has been certified in advance by the Civil Rights Commission. Employers cannot base a BFOQ on sex stereotypes, necessity for providing sex-segregated facilities or customer, client or employer preferences.

Benefits: Employers cannot discriminate based on sex when offering fringe benefits. Employers cannot make available benefits for the wives and families of male employees that are not available for the husbands and families of female employees. Employers cannot condition employee benefits on whether an employee is the “head of household” or “principal wage earner” and cannot defend discrimination claims on the grounds that the cost of benefits is greater for one sex than the other.

Employers must offer pregnant employees the same benefits as nonpregnant employees.

Employers cannot use pension or retirement plans that establish different retirement ages on the basis of sex or differentiate benefits on the basis of sex.

No data

No data

Oklahoma

Employers can't discriminate based on sex. Employers can differentiate between male and female employees if such differences are required or permitted by state or federal fair employment practices or labor laws. Sex discrimination includes sexual harassment and discrimination based on marital status and pregnancy, childbirth or related medical conditions.

Benefits: Employers can't discriminate based on sex when offering fringe benefits. Employers can't provide benefits for the wives and families of male employees that they don't provide for the husbands and families of female employees. Employers can't condition employee benefits on whether an employee is the “head of household” or “principal wage earner” and can't defend discrimination claims on the grounds that the cost of benefits is greater for one sex than the other.

Employers can't use pension or retirement plans that establish different retirement ages on the basis of sex or differentiate benefits on the basis of sex.

Employers can differentiate between annuity, death and survivors' benefits paid to widows and widowers of deceased employees.

Facilities: Employers must provide appropriate physical facilities—such as restrooms and changing areas—to employees of both sexes. Employers can't deny employment due to a lack of restrooms or associated facilities.

No data

No data

Oregon

Employers can't discriminate based on sex, unless this discrimination is justified by a bona fide occupational qualification. Sex discrimination includes sexual harassment and discrimination based on pregnancy, childbirth or related medical conditions.

Employers can't discriminate based on gender identity or transsexualism. Gender identity refers to employees' and applicants' gender-related identity, appearance, expression and behavior regardless of their assigned sex at birth.

Employers can't require employees and applicants to dress in a manner that is inconsistent with their gender expression. Employers must provide reasonable and appropriate restroom facilities that are consistent with employees' and applicants' gender expression. Gender expression is the manner in which employees and applicants express their gender (for example, through clothing, hair or makeup) regardless of their assigned sex at birth.

Employers don't violate the discrimination prohibitions solely because they fail to provide reasonable accommodation to employees and applicants with a disability related to transsexualism.

Employers can't discriminate based on sexual orientation, unless this discrimination is justified by a bona fide occupational qualification. Sexual orientation means actual or perceived heterosexuality, homosexuality, bisexuality or gender identity.

Pennsylvania

Employers can't discriminate based on sex, unless this discrimination is based on a bona fide occupational qualification or applicable federal or state security regulations. Employers can exclude employees and applicants from positions based on sex if sex-related characteristics are crucial to performing the job.

[Note: In August 2018, the Pennsylvania Human Relations Commission issued guidance stating that sex discrimination, under the state's fair employment practices law, includes discrimination based on sexual orientation, transgender identity, gender transition, gender identity, and gender expression. The guidance also states that the commission will accept complaints alleging such discrimination.]

[Note: In August 2018, the Pennsylvania Human Relations Commission issued guidance stating that sex discrimination, under the state's fair employment practices law, includes discrimination based on transgender identity, gender transition, gender identity, and gender expression. The guidance also states that the commission will accept complaints alleging such discrimination.]

[Note: In August 2018, the Pennsylvania Human Relations Commission issued guidance stating that sex discrimination, under the state's fair employment practices law, includes discrimination based on sexual orientation. The guidance also states that the commission will accept complaints alleging such discrimination.]

Rhode Island

Employers can't discriminate based on sex.

Employers can't discriminate based on gender identity or expression. Gender identity or expression includes employees' and applicants' actual or perceived gender, gender identity and gender-related self image, appearance and expression regardless of their assigned sex at birth.

Employers can't discriminate based on sexual orientation. Sexual orientation means having or being perceived as having an orientation for heterosexuality, bisexuality or homosexuality. Employers aren't required to provide insurance benefits to unmarried partners of employees. Sexual orientation discrimination doesn't include conduct prohibited by Rhode Island criminal laws.

[Note: For information on the recognition of same-sex legal unions in Rhode Island, see “Marital Status Discrimination.”]

South Carolina

Employers can't discriminate based on sex, which includes pregnancy, childbirth, and related medical conditions such as lactation.

No data

No data

South Dakota

Employers cannot discriminate based on sex; however, employers can refuse employment where sex is a bona fide occupational qualification (BFOQ). Employers cannot base BFOQs on sex stereotypes or customer, client or employer preferences. They also cannot refuse employment to employees and applicants of one sex based on a lack of appropriate facilities if federal law requires separate restrooms for employees of each sex. Sex discrimination includes discrimination based on marital status and pregnancy, childbirth or related medical conditions.

Employers cannot publish job advertisements that express sex discrimination, unless sex is a BFOQ. Employers also cannot ask nonjob-related questions about sex on job applications or in job interviews, unless sex is a BFOQ.

Employers cannot maintain separate, sex-based lines of progression or seniority lists, unless sex is a BFOQ.

Employers cannot discriminate based on sex when offering fringe benefits. Employers cannot provide benefits for the wives and families of male employees that are provided for the husbands and families of female employees. Employers cannot condition employee benefits on whether an employee is the “head of household” or “principal wage earner” and cannot defend discrimination claims on the grounds that the cost of benefits is greater for one sex than the other. Employers cannot use pension or retirement plans that establish different retirement ages on the basis of sex or differentiate benefits on the basis of sex.

Employers can maintain different pay scales or provide different terms of employment pursuant to merit systems or systems that vary pay based on production quantity or quality or locality differences if these pay variations do not discriminate based on sex. Employers also can administer and act on the results of professionally developed ability tests if these tests are not designed or used to evade the sex discrimination prohibitions.

No data

No data

Tennessee

Employers can't discriminate on the basis of sex unless sex is a bona fide occupational qualification reasonably necessary to the normal operation of employers’ business. Sex means the designation of persons as male or female on their birth certificate.

No data

No data

Texas

Employers can't discriminate based on sex. Sex discrimination includes discrimination based on pregnancy, childbirth, or related medical conditions. Employers can, however, refuse employment if sex is a bona fide occupational qualification.

No data

No data

Utah

Employers can't discriminate based on sex.

Employers can't discriminate based on gender identity. Gender identity has the meaning provided in the Diagnostic and Statistical Manual (DSM-5). Employees' and applicants' gender identity can be shown through evidence such as their medical history, care, or treatment; their consistent and uniform assertion of their gender identity; or other evidence that their gender identity is a sincerely held part of their core identity and isn't being asserted for improper purposes.

Employers can adopt reasonable, lawful dress and grooming standards if they provide reasonable accommodations based on gender identity. They also can adopt reasonable rules and policies that designate sex-specific facilities, including restrooms and shower or dressing facilities, if they provide reasonable accommodations based on gender identity.

Employers can't discriminate based on sexual orientation, which means employees' and applicants' actual or perceived orientation as heterosexual, homosexual, or bisexual.

Vermont

Employers can't discriminate based on sex, unless a bona fide occupational qualification requires people of a particular sex. Sex discrimination includes sexual harassment.

Employers can't discriminate based on gender identity, unless a bona fide occupational qualification requires people of a particular gender identity. Gender identity is defined in Vt. Stat. Ann. tit. 1, § 144. Employers can adopt and enforce reasonable workplace policies to address issues related to employees' gender identity, including a reasonable dress code for the workplace.

Employers can't discriminate based on sexual orientation, unless a bona fide occupational qualification requires people of a particular sexual orientation. Sexual orientation is defined in Vt. Stat. Ann. tit. 1, § 143.

Virginia

Employers with 15 or more employees cannot discriminate based on sex. Employers with six to 14 employees cannot discharge employees based on sex.

No data

No data

Washington

Employers can't discriminate based on actual or perceived sex, unless a bona fide occupational qualification applies. Sex and gender have the same meaning. Employers also generally can't ask applicants about their sex or gender.

Employers can segregate restrooms and locker facilities and determine other terms and conditions of employment based on sex if the Washington State Human Rights Commission finds these employment practices appropriate for equal employment opportunity purposes. If the use of a gender-neutral job title isn't practicable, employers can use a sex-specific job title with its counterpart (waiter/waitress, for example) or otherwise indicate that the job title applies to men and women.

Other prohibited practices: Employers can't disqualify employees and applicants from engaging in or pursuing any employment based on sex and can't exclude them from any workplace based on sex.

Employers can't discriminate based on gender expression or identity, unless a bona fide occupational qualification applies. Gender expression or identity means having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, regardless of whether these traits are traditionally associated with a person's assigned sex at birth.

For related harassment provisions, see “Harassment.”

Appearance standards: Employers can require dress or grooming standards that serve a reasonable business purpose, such as promoting safety, developing a company identity, or projecting a professional public image. However, they must allow employees to dress and groom in ways that are consistent with their gender expression or identity.

Benefits: Employer-provided employee benefits must be provided on a consistent, equal basis to all employees, regardless of their gender expression or identity. Other employee benefits, including health-club memberships, discount programs, training, staff retreats, company gatherings or parties, and the use of company vehicles or services, also must be provided on an equal basis to all employees, regardless of their gender expression or identity.

Facilities: Employers must allow employees to use gender-segregated facilities, such as restrooms, locker rooms, and dressing rooms, that are consistent with their gender expression or identity, including facilities where undressing occurs in the presence of other people. Employers can't ask or require employees to use gender-segregated facilities that are inconsistent with their gender expression or identity, separate facilities, or gender-neutral facilities. If a person expresses concern or discomfort about employees who use facilities that are consistent with their gender expression or identity, that person should be directed to a separate or gender-neutral facility if available.

Employers can't take actions against employees who use gender-segregated facilities, such as removing them from the facilities, if these actions are related to their gender expression or identity instead of their conduct or behavior. Employers must consistently apply the same conduct and behavior standards to all employees who use facilities, regardless of their gender expression or identity.

Leave: Employers must treat leave requests to address medical or health-care needs related to employees' gender expression or identity in the same way as leave requests for other medical conditions.

Pre-employment inquiries: Employers can't ask applicants about their gender expression or identity, transgender status, or sex assigned at birth. Employers also can't ask applicants about their original name if it has been changed by a court order. In addition, employers can't ask applicants about their name if doing so would reveal their gender expression or identity, transgender status, or sex as assigned at birth. An employer can ask applicants if they have worked for the employer or another employer under a different name and, if so, what name they worked under. Employers also can ask applicants if their references know them under a different name.

Reasonable accommodations: Employers must provide reasonable accommodations for disabilities related to gender expression or identity, unless these accommodations would cause them undue hardship. Reasonable accommodations can include medical leave for medical and counseling appointments, surgery, and post-surgery recovery related to gender reassignment procedures and treatments. Undue hardship is analyzed in the same way as with accommodations for other disabilities. For more information, see “Reasonable Accommodations” in Washington Disability Discrimination.

Employers can't discriminate based on actual or perceived sexual orientation, unless a bona fide occupational qualification applies. Sexual orientation means heterosexuality, homosexuality, bisexuality, and gender expression or identity. Employers also can't ask applicants about their sexual orientation. In addition, employers can't ask applicants about their name if doing so would reveal their sexual orientation.

Employer-provided employee benefits must be provided on a consistent, equal basis to all employees, regardless of their sexual orientation. Other employee benefits, including health-club memberships, discount programs, training, staff retreats, company gatherings or parties, and the use of company vehicles or services, also must be provided on an equal basis to all employees, regardless of their sexual orientation. If benefits or privileges are extended to employees' opposite-sex spouses, they also must be extended to employees' same-sex spouses.

For related harassment provisions, see “Harassment.”

West Virginia

Employers can't discriminate based on sex, unless this discrimination is based on bona fide occupational qualifications or applicable federal or state security regulations.

No data

No data

Wisconsin

Employers can't discriminate based on sex, unless sex is a bona fide occupational qualification. Sex discrimination includes sexual harassment; discrimination based on pregnancy, childbirth, maternity leave, or related medical conditions; sexual orientation discrimination; and discrimination based on sex in compensation for equal or substantially similar work.

No data

Employers can't discriminate based on sexual orientation. Sexual orientation means having a preference or being identified with a preference for heterosexuality, homosexuality, or bisexuality. Sexual orientation discrimination is a form of sex discrimination.

Wyoming

Employers can't discriminate against qualified employees and applicants based on sex.

No data

No data

Source: Bloomberg Law 

Please note NCSL cannot provide advice or assistance to private citizens or businesses regarding employment-related matters. Please consult your state department of labor or a private attorney.

Additional Resources