Gender Identity Discrimination in Hiring: Recognizing and Combatting Bias

By Douglas Lipsky

Gender identity discrimination in hiring is an unlawful practice where job candidates are unfairly judged or denied opportunities based on their gender identity. Federal, state, and city laws protect candidates against such discrimination. These legal protections are pivotal in promoting a fair and inclusive hiring process in today’s diverse workforce. Let’s take a look at gender identity discrimination in hiring and what you can do about it.

Understanding Gender Identity Discrimination in Hiring

Gender identity discrimination in hiring occurs when employers make employment decisions based on an individual’s gender identity rather than their qualifications and skills. This form of discrimination can occur at various stages of the hiring process, from job advertisements to interview questions and decision-making. 

It may involve biased language in job postings, assuming gender roles, or disregarding candidates who don’t conform to traditional gender norms. Such discriminatory practices not only limit the opportunities for transgender and gender non-conforming individuals but also contribute to a workplace culture that is less diverse and inclusive.

It’s important to recognize both overt and subtle forms gender identity discrimination can take:

  • Overt discrimination can involve outright refusal to hire someone based on their gender identity or derogatory comments during an interview. 
  • Subtle forms are harder to detect, such as unconscious bias influencing the evaluation of a candidate’s resume or demeanor during an interview. 

No matter how it occurs, gender identity discrimination in hiring is illegal and victims have powerful legal recourse under applicable equal employment opportunity (EEO) laws.

Legal Protections Against Gender Identity Discrimination in New York

Federal, state, and city laws prohibit gender identity discrimination in any aspect of employment including hiring and job screening. Federally, the Equal Employment Opportunity Commission (EEOC) and the courts have held that Title VII of the Civil Rights Act prohibits discrimination based on gender identity. The U.S. Supreme Court reinforced this protection in the landmark 2020 decision in Bostock v. Clayton County, which explicitly included gender identity under the umbrella of sex discrimination.

At the state level, the New York State Human Rights Law provides robust protections against discrimination based on gender identity or expression, making it unlawful for employers to base hiring decisions on these factors. New York City further strengthens these protections with the NYC Human Rights Law, one of the most comprehensive anti-discrimination laws in the nation. This city law explicitly prohibits discrimination in employment based on gender identity, offering extensive legal recourse for individuals who face such discrimination in the hiring process.

The Subtle Signs of Gender Identity Discrimination

Recognizing subtle forms of gender identity discrimination in hiring is crucial for creating an equitable workplace. These subtle biases often manifest in ways that are not immediately apparent, making them more challenging to identify and address. Some common examples include:

  • Resume screening – overlooking candidates with names or experiences that don’t align with traditional gender expectations
  • Interview questions – asking questions that imply assumptions about a candidate’s gender identity or expression.
  • Assessment standards – evaluating candidates based on gender stereotypes rather than job-related criteria.

How To Fight Gender Identity Discrimination in Hiring 

If you suspect that you have been subjected to gender identity discrimination, you have a right to seek legal recourse. This may involve filing a complaint with the EEOC or state and city human rights agencies or pursuing an employment discrimination lawsuit. By working with a skilled gender discrimination attorney, you can protect your rights and foster a more inclusive workplace.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.