• Nevada Prohibits Discrimination Based Upon a Person's "Gender Identity or Expression"
  • July 29, 2011 | Author: Aisha S. Sanchez
  • Law Firm: Ford & Harrison LLP - Tampa Office
  • Executive Summary: Following a targeted lobbying effort by LGBT and civil liberties activists, Nevada recently became the 15th state,1 along with the District of Columbia, to adopt legislation expressly prohibiting workplace discrimination against transgendered employees.

    What Does the Law Provide?

    Nevada currently prohibits employment discrimination based upon a person's color, religion, sex, sexual orientation, age, disability, or national origin. Assembly Bill No. 211 adds to that list "gender identity or expression," defined as "a gender-related identity, appearance, expression, or behavior of a person, regardless of the person's assigned sex at birth." Under Nevada law, an employer commits an unlawful employment practice if, based on any of these protected classes, it discriminates against any person "with respect to the person's compensation, terms, conditions, or privileges of employment." Although the bill adds the transgender category to anti-discrimination statutes, it does not alter an employee's procedural requirements for pursuing a claim under state law.

    In expanding legal protections to transgender employees, the bill further addresses some of the practical implications that may affect employers. For instance, the bill allows employers to enforce gender-specific dress codes and grooming policies. In doing so, however, employers must allow employees to "appear, groom and dress consistent with the employee's gender identity or expression." In other words, employers must defer to an employee's self-identified gender when applying workplace grooming policies and dress codes.

    The bill also permits employers, in limited circumstances, to indicate a "preference, limitation, specification or discrimination . . . based on gender identity or expression." Specifically, to qualify for this exception, an employer must show that an employee's gender identity or expression is a "bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise."

    Employers' Bottom Line

    Nevada's transgender law goes into effect on October 1, 2011. The new law applies to employers with 15 or more employees, employment agencies, labor organizations, and apprenticeship programs. It does not apply to out-of-state employment or ยง 501(c)(3) tax-exempt entities. To facilitate timely compliance with the new legislation, employers should revise their employee handbooks and internal policies (such as dressing and grooming, harassment, and equal employment opportunity). Employers should also educate supervisors, employees, and orientees alike on the prohibition against discrimination based on gender identity or expression. Employers might also find value in preliminarily assessing their restroom accommodations in the event the Nevada courts and/or regulatory bodies later interpret the law to assign restroom use based on an employee's self-identification. In that case, gender-neutral, stand-alone restrooms that are available to any employee might help minimize exposure to harassment and discrimination claims so long as transgendered employees are not pressured into using the alternate restrooms exclusively.

    1. California, Colorado, Hawaii, Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico, Nevada, Oregon, Rhode Island, Vermont, and Washington also prohibit discrimination based on gender identity.