One month ago, we discussed a bill introduced in the Ohio General Assembly to prohibit discrimination on the basis of sexual orientation and gender identity and expression. Representative Barney Frank (D-Mass.) recently introduced a similar bill in Congress to prohibit employment discrimination on the basis of sexual orientation and gender identity, The Employment Non-Discrimination Act of 2009, H.R. 2981. This bill, which has been referred to committee, defines “gender identity” as “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.” This language is similar to the proposed definition of “gender identity and expression” under the Ohio bill. This proposed bill, like the Ohio proposal, also includes broad protection of “actual or perceived” sexual orientation. The language in the proposed federal statute limits potential claims under the Act to disparate treatment and retaliation actions only, expressly excluding disparate impact claims. The procedures and remedies for violations of the Act are the same as those provided under Title VII. The proposed federal statute, like the proposed Ohio statute, expressly excludes religious organizations that are exempt from Title VII’s religious discrimination provisions.
The proposed federal statute, in contrast to the Ohio proposal, directly addresses grooming standards and restroom, shower, and changing facility usage. Under the federal proposal, employers may deny, on the basis of gender identity, employees access to changing areas or showers where being seen unclothed is “unavoidable”—if the employer provides “reasonable access” to adequate facilities “not inconsistent with the employee’s gender identity” determined at the time of employment or when the employee notifies the employer that he/she is undergoing/has undergone gender transition. The federal proposal also allows for reasonable dress and grooming standards—provided the employer allows employees who are undergoing, or who have undergone, gender transition to adhere to the standards for the gender to which the employee transitioned or is transitioning.