Mary Nigel’s Sexual Orientation and Gender Identity

The objective of this report is to research and address the issue of sexual orientation and gender identity regarding Mary Nigel, a recently employed female worker on the assembly line. The aim is to discuss various issues regarding sex, gender, sexual preference, and sex discrimination which have the likelihood to be implemented within the management of human resources.

References are also made to laws and legislation which may be used in the determination of such issues which consist of Title 7 of the 1964 Act on Civil Rights and the commission on equal opportunity of employment which make provisions on the safeguarding of employees from sex discrimination in a workplace centered on their gender identity, sex, and sexual orientation. Reference is also made to case laws which include Macy v Holder and Price Waterhouse v Hopkins which have established precedence in cases involving discrimination based on sex. The terms sex, gender, sexual orientation, and sex discrimination are defined for the purpose of this report. Moreover, various courses of legal action, as well as remedies, are outlined pertaining to the incidents of sexual discrimination in the workplace. In conclusion, there are various recommendations which are made to inhibit sex discrimination in the organization which consists of regular updates on policies of anti-discrimination, provision of regular employer training, consultation of legal counsel, and designation of specific people to receive complaints.

Introduction

Discrimination in the workplace is a significant problem which workers are ought to safeguard themselves against. There are numerous cases on discrimination in various organizations in the world. Discrimination happens when there is a difference in the treatment of employees on grounds which consist of sex, gender, color, religion, physical disability as well as age. Article one subsection two of the (UDHR) Universal Declaration of Human Rights provides that each and every individual is equal in dignity and rights. Thus, it is contrary to the law to discriminate upon any person on any basis. The following paper, is a report on my investigation concerning the issue of Mary’s gender, a recently hired female employee who works in the assembly line. The finding of this report is essential because it will enlighten the organization as a whole on issues related to sex discrimination in the workplace (Flentje, Bacca, & Cochran, 2015). The report will entail the definition of terms such as gender identity, orientation based on sex, and sex, to create a better comprehension of discrimination in the workplace as well as make recommendations on how to prevent discrimination based on sex and how to solve Mary’s issue.

Definition

To understand the background of the report, there are key terms which require to be defined. They include sex, gender, and sexual orientation. Sex entails the biological characteristics of women and men. Gender is defined by the conception of functions, roles, and tasks attributed to men and women in the society as well as in private and public life. Sexual orientation encompasses a concept in law that is generally acknowledged to denote whether an individual is heterosexual (straight), bisexual or homosexual (gay). It is imperative to recognize that not all transgender individuals are gay (O’Flaherty, 2014). A lot of people who are transgender are straight. Furthermore, many transgender males have female partners. Often, when transgender individuals face discrimination, it is not associated with their sexual orientation. Sex discrimination entails the treatment of an applicant or an employee differently on the basis of sex stereotype since she or he does not conform to the traditional notions of masculinity or femininity. For discrimination based on sex to be unlawful, it should comprise various treatments which negatively impact the conditions or terms of employment such as one’s work responsibilities, salary, job location as well as training opportunities (Galupo, Davis, Grynkiewicz, & Mitchell, 2014). Having checked my records, it was discovered that she checked in as a female on the employment application. Moreover, she has a spouse whose name is Katherine.

Sex discrimination is illegal. The federal law which prohibits discrimination on the basis of sex in the work place is the Title 7, 1964 Act on Civil Rights. The Title 7 is applicable to local and state government personnel, private workers, job agencies, labor organizations as well as joint union of employers who offer apprenticeship programs that consist of a minimum of fifteen workers (Cahill & Makadon, 2014). The Equal Employment Opportunity Commission (EEOC) interprets and enforces Title VII which prohibits sexual discrimination as forbidding any form of discrimination in employment centered on sex orientation as well as gender identity. These protections are applicable irrespectively of any contrary local or state laws. Sexual discrimination refers to the unfavorable treatment of individuals due to their gender (Ciocca, et al., 2014). Title VII of the 1964 Civil Rights Act states that discrimination upon a person based

Further, the law provides that it is illicit for an employer to retaliate against an individual because of their complaint on discrimination, the filing of a suit on discrimination or their taking part in a lawsuit or investigation on employment discrimination (Diemer, Grant, Munn-Chernoff, Patterson, & Duncan, 2015). The legislation also requires that employers should accommodate the sincerely held religious practices of employees, as well as applicants and the failure to do so will result in extreme difficulties on the running of the employer’s business (Brewer & Hamilton, 2014). Through people’s investigations, conciliations, and charges of litigation against employers in the private sector, in addition to appeals and hearings for workers in the federal sector, the EEOC has adopted the stand that the preexisting Title VII provisions on sexual discrimination safeguard transgender, gay, bisexual, lesbian and other employees from biases in the process of employment

Although sexual orientation or gender identity is not explicitly provided for in the 1964 Title 7 Act on Civil Rights in the its content of safeguarded bases, the Commission in conformity with the case holding of the Supreme Court that action in employment which is re-motivated by the stereotyping of gender are illegal sexual discrimination. Along with several court rulings interpret the law’s provision on sexual discrimination as inhibiting discrimination on workers based on gender identity or sexual orientation (Kosciw, Palmer, & Kull, 2015). Some of the examples of claims on discrimination based on sex consist of the use of facilities, firing, harassment, gender identity, and sexual orientation.

Use of Facilities

The prohibition of an employee to the equal accessibility to a common washroom in correspondence to the gender identity of a worker - for example, an individual may be prohibited from using restroom facilities by the management in their organizations due to suspicions on their gender identity.

Firing

A job candidate may be informed that they would be laid off as a result of a company’s reorganization and cutbacks (Stewart, Renn, Brazelton, & Jourian, 2015). Nevertheless, an applicant of a different gender with a lesser seniority or applying for a similar position may keep their job positions. This is firing a worker due to their decision to undergo a transition of their gender. For instance, a job applicant who has long-term experience as well as good qualification may apply for a job. However, they may fail to be hired due to an organization’s preference to employ a specific gender.

Harassment

Harassment of an employee due to their gender transition for instance by the persistent and intentional failure to address an employee by the name which they have communicated to the management as well as to their colleagues (Ton, Eidson-Ton, Iosif, Henderson, Callahan, & Sitkin, 2016). This is harassment of a worker because of their sexual orientation such as making disparaging comments due to their association with individuals of similar sex.

Gender Identity

The failure to hire a job candidate if they are transgender - for instance, an individual may apply and get hired for a job position at a specific company. Before commencing their job responsibilities, they resolve to inform their employer that they are yet to undergo a transition of their gender and will present as a man instead of a woman (Diemer, Grant, Munn-Chernoff, Patterson, & Duncan, 2015). As a result, the employer informs the individual that the position is no longer available due to undisclosed reasons. Afterward, the applicant finds out that the position was in fact offered to another individual.

Sexual Orientation

This may consist of reception of poor assessment in one’s performance which comprises comments concerning one’s lack of femininity or masculinity.

Case Laws on Sex Discrimination

Despite the fact that the decision of the Equal Employment Opportunity Commission is not BINDING on the courts, The Supreme Court has identified that its interpretations form informed judgment and a body of experience to which litigants and courts can properly resort for guidance (Diemer, Grant, Munn-Chernoff, Patterson, & Duncan, 2015). In this respect, the decisions of the EEOC have significant informal authority although they are devoid of precedential values of the opinions of courts.

In the Macy V. Holder case, the plaintiff filed a suit claiming that she was denied a crime lab job due to her gender identity. In December 2010, Macy applied for a job in a crime lab known as Walnut Creek. Consequently, the director of the laboratory in two different telephone conversations informed her that she could get the job on condition that a check on her background did not uncover any issues (Diemer, Grant, Munn-Chernoff, Patterson, & Duncan, 2015). In 2011 March, Macy informed Aspen the organization tasked with the responsibility for the filling of the job position of her process to transition from a man to a woman. Aspen made known of Macy’s transition to Walnut Creek upon her request. After two days, the Aspen Investigator informed Macy of his hope to complete his findings in the next week. However, Macy did not get any feedback concerning the check on her background.

On the contrary, Aspen told her that due to the restrictions on federal budget, the crime lab position at Walnut Creek was no longer available. As a result of the abrupt change, Macy contacted a counselor from the Equal Employment Opportunity Commission who told her that the job position had, in fact, being offered to another applicant whom the bureau alleged was furthest in the process of the background investigation (Ciocca, et al., 2014). Therefore, Macy instituted a complaint with the alleging discrimination by gender identity, sex stereotyping as well as sex. In response, the bureau stated that under the Title VII the claims on gender identity stereotyping“ could not be adjudicated. Instead, they informed her that they would present her allegations to the DOJ (Department of Justice) which would resolve the issue in line with its policies on gender identity (Diemer, Grant, Munn-Chernoff, Patterson, & Duncan, 2015). Nevertheless, Macy objected to the policies of the Department of Justice and opted to appeal her claim to the Equal Employment Opportunity Commission under Title VII. It was held that the the discrimination based on gender identity claims are recognised under Title Seven’s prohibition on sex (Diemer, Grant, Munn-Chernoff, Patterson, & Duncan, 2015). The complaint was remanded to the bureau by the EEOC for further Processing.

In recognizing the appellant’s claims were merely different methods of defining sex discrimination, the EEOC articulated various ways to state a valid claim as well as offer further definitions of two approaches which courts have advanced in the past. The two theories comprise the per se approach that denotes that such discrimination is inherently discernment based on sex, since it is associated with an alteration of one’s sex and the sex-stereotyping approach that describes the discrimination against transgender people. To elaborate on the approach of stereotyping, the EEOC analyzed the Price Waterhouse v Hopkins case which is a landmark case which extended the safeguarding of employees against discrimination based on gender stereotyping under Title Seven(Ciocca, et al., 2014). In the case Ann Hopkins was a senior manager in Price Waterhouse. In 182, she was endorsed for a partnership position. However, her endorsement was put on hold for reconsideration in the following year. Later on, when the co-partners in the firm denied to repropose the respondent for partnership, she filed a suit under Title 7 of the 1964 Act on Civil Rights in the court of the Federal District claiming that she had been discriminated based on sex in the matter concerning the partnership (Galupo, Davis, Grynkiewicz, & Mitchell, 2014). The decision of the District Court was in favor of the respondent.

It was held that the petitioner, Price Waterhouse had illegally discriminated upon Hopkins based on sex by consciously giving credence as well as effects to the comments of the partners regarding her, which were the result of sex stereotyping (Galupo, Davis, Grynkiewicz, & Mitchell, 2014). Among the comments that influenced the decisions of the court were made by a partner who was responsible for explaining to the respondent the Policy Boards reason to make the resolution to place Hopkins candidacy on hold. The partner informed Hopkins that to raise her chances to acquire partnership she required her to put on makeup, style her hair like a lady as well as dress, walk, and talk like a woman (Stewart, Renn, Brazelton, & Jourian, 2015). The decisions were affirmed by the Court of Appeal. The two courts stated that employer who permits a discriminatory act ought to prove by clear and compelling evidence that it would have arrived at a similar decision in the absence of prejudice and also that a complainant should not bear this burden.

Moreover, the Supreme Court stated that the act by Price Waterhouse was in violation of the Title VII since the Equal Employment Opportunity Commission, in summary, provided that discrimination on the basis of gender occurs any time employers treat employees differently for the failure to comply with the norms or expectations based on the gender. Hence, following the ruling on Price Waterhouse, numerous courts have recognized the theory of sex-stereotyping as a valid method of proving discrimination on the basis of sex.

Mary’s Issue

In this case, Mary was seen entering the men’s restroom during lunch break, an incident which was noticed by a few of her fellow employees. This resulted in carrying out background research on her records where it was discovered that she checked in as a female on the employment application. Moreover, she has a spouse known as Katherine (Galupo, Davis, Grynkiewicz, & Mitchell, 2014). As a result, the suspicion developed that she may be biologically male, but is presenting herself as a female. Recently, the company has established a fitness center with separate open showers for each gender. This has now resulted in a dilemma regarding which of either the male or female restrooms Mary will use.

Recommendations

Routine Updates on Policies of Anti-Discrimination

Employers ought to have experienced employment attorneys to update and review their anti-discrimination policies on a frequent basis. For instance, recently, the LGBTQ community has been very successful in obtaining legal protections by both cities, and state laws in addition to court rulings that widen the scope of Title VII as a lot of anti-discrimination policies do not include these alterations in the law.

Provision of Regular Employer Training

It is essential for employees to attend numerous training courses which give them an insight into discrimination. Furthermore, employees can provide workers with bystander training which teaches them on how to react when they identify discriminatory behavior.

Consultation of Legal Counsel

Laws on employment can sometimes be complicated for an employer, thus it is best to consult the services of an employment attorney. Having policies as well as being proactive by educating one’s workers on sex discrimination can assist in the insulation of companies from claims on sexual discrimination.

Designation of Specific Persons to Receive Complaints

Most employers designate only 1 or 2 individuals to receive complaints of discrimination. This may be negative in cases where the designated individuals actually engage in the prejudices. However, when employers choose several people to receive such discrimination complaints, more employees are likely to feel comfortable to present their claims (Stewart, Renn, Brazelton, & Jourian, 2015). So as long as every employee who has been assigned to receive complaints has proper training, they will facilitate a conducive environment in which victims of discrimination may report their complaints.

In Mary’s issue, the problem of gender identity may also arise. Gender identity encompasses an individual’s identified as a woman or a man. Usually, a person’s gender identity conforms t their anatomical sex. Nevertheless, for some individuals, their gender identity does not always align with their anatomical sex (Stewart, Renn, Brazelton, & Jourian, 2015). For instance, an individual born male can have a significant inner self-image as well as self-identification as a male. The phrase transgender is used to refer to people who in one way or another do not conform to stereotypes of gender expression or gender identity. Transsexual individuals are safeguarded from prejudices under the Title VII. There are several remedies which an individual can recover after filing a suit due to the discrimination based on sex. They may consist of compensatory damages due to emotional suffering and pain, punitive damages to punish the employer, reinstatement, back pay, promotion, hiring, and front pay. The remedies may also comprise the payment of attorney’s fees, court costs, and fees for expert witnesses. An employer can be required to implement preventive and corrective actions in line with the source of the discrimination and lower the chances that it might occur again in addition to terminating the particular discriminatory practices associated with the case.

Mary’s Gender Identity

Gender identity is a personal matter. Therefore, Mary may choose whether or not to disclose this information to her employer. However, in the event that she begins to experience discrimination, she may decide to file a complaint with the company’s human resource department or an individual from the management team to find a solution to the issues she may undergoing due to her gender identity. Moreover, Mary may opt to file a suit with the commission on employment of Equal Opportunity Commission. Upon filing the complaint, the EEOC will inform the Company of the charge and will then commence integration to the claim. Afterward, the Equal Employment Opportunity Commission can result in taking a number of varying paths. Firstly, the commission can make attempts to settle Mary’s complaint or refer the complainant as well as the company to a mediator. Secondly, if the Equal Employment Opportunity Commission is not capable of reaching a settlement that both parties Agree On, the complainant, Mary, in this case, may institute a suit in a federal court. The EEOC also has an option of dismissing the claim if it is not able to arrive at a settlement. The complainant will then be issued with a notice which advises them on their right to sue in a court of law. The notice ISSUED by the commission is referred to as a ”right to sue” letter. Moreover, if a person decides to institute a suit before the completion of the investigations of the Equal Employment Opportunity Commission, they can request for the ”right to sue letter.”

Conclusion

In conclusion, discrimination is a significant problem in any workplace. Every individual is equal in dignity and rights. Therefore, it is against the law to discriminate upon any person on any basis. Sex entails the biological characteristics of women and men. Gender is described as the conception of functions, roles, and tasks attributed to men and women in the society as well as in private and public life. Sexual orientation entails a concept in law that is generally acknowledged to denote whether an individual is heterosexual (straight), bisexual or homosexual (gay). The federal law which prohibits discrimination on the basis of sex in a workplace is the Title VII of the Civil Rights Act of 1964. The commission on employment of equal opportunity interprets and enforces Title VII which prohibits sexual discrimination as forbidding any form of discrimination in employment centered on orientation based on sex as well as on the gender identity. Some of the examples of claims on discrimination based on sex consist of the use of facilities, firing, harassment, gender identity, and sexual orientation. In the Price Waterhouse v Hopkins case, it was held that the petitioner, Price Waterhouse had illegally discriminated upon Hopkins based on sex by consciously giving credence as well as effects to the comments of the partners regarding her which were as a result of sex stereotyping. In the Macy v Holder case, it was held that the EEOC ruled that the gender identity discrimination claims are acknowledged under Title 7’s prohibition on sex

There is an urgent need for a proper approach of the management of the human resource department on the rights of the LGBT within the workplace. Research has revealed that the departments of human resource in organizations are not fully supporting the recognition of the right of the LGBT individuals. For instance, a SAMPLE of professionals from the human resource department showed that although they are of the view that sexual orientation ought to be addressed formally in organizations, as well as that they would personally speak out AGAINST anti-gay actions, only twenty percent of these professional’s firms have diverse programs which particularly address lesbian and gay work issues. With regard to the labor unions’ attitude towards LGBT within the work pace the function of an individual agency in association with the union leaders and activists plays a major aspect towards the response. In the United States, demographic and structural factors also assist in the determination of the level of responsiveness of the labor unions to issues concerning sexual diversity. Nevertheless, a lot of organization in the US have ENACTED rules and regulations to safeguard their, bisexual, lesbian, transgender and gay employees.

References

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Ciocca, G., Limoncin, E., Cellerino, A., Fisher, A. D., Gravina, G. L., Carosa, E., et al. (2014). Gender Identity Rather Than Sexual Orientation Impacts on Facial Preferences. The Journal of Sexual Medicine, 2500-2507.

Diemer, E. W., Grant, J. D., Munn-Chernoff, M. A., Patterson, D. A., & Duncan, A. E. (2015). Gender Identity, Sexual Orientation, and Eating-Related Pathology in a National Sample of College Students. Journal of Adolescent Health, 144-149.

Flentje, A., Bacca, C., & Cochran, B. (2015). Missing data in substance abuse research? Researchers’ reporting practices of sexual orientation and gender identity. Drug and alcohol dependence, 147.

Galupo, M. P., Davis, K. S., Grynkiewicz, A. L., & Mitchell, R. C. (2014). Conceptualization of Sexual Orientation Identity among Sexual Minorities: Patterns Across Sexual and Gender Identity. Journal of Bisexuality, 433-456.

Kosciw, J. G., Palmer, N. A., & Kull, R. M. (2015). Reflecting Resiliency: Openness about Sexual Orientation and/or Gender Identity and Its Relationship to Well-Being and Educational Outcomes for LGBT Students. American Journal of Community Psychology, 167-178.

O’Flaherty, M. (2014). Sexual Orientation and Gender Identity. International human rights law, 303-315.

Stewart, D.-L., Renn, K. A., Brazelton, G. B., & Jourian, T. J. (2015). Evolving Nature of Sexual Orientation and Gender Identity Evolving Nature of Sexual Orientation and Gender Identity. New Directions for Student Services, 11-23.

Ton, H., Eidson-Ton, W., Iosif, A.-M., Henderson, S., Callahan, E., & Sitkin, N. (2016). Using a Retreat to Develop a 4-Year Sexual Orientation and Gender Identity Curriculum. Academic Psychiatry, 796-801.