Can I be fired (or fire someone) in Nevada for crossdressing at work?

Posted by Unknown | Sep 28, 2016 | 0 Comments

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Gender identity and your rights in the Nevada workplace

Both Nevada and federal law prohibit discrimination on the basis of gender or gender identity or expression, including by reason of transgender status or sexual orientation.

Gender identity is a person's internal sense of being male or female. Gender expression includes external personal characteristics associated with being male or female, such as appearance, clothing, hair, mannerisms and behaviors.

This means that, with few exceptions, it is illegal to discriminate against someone for dressing or behaving in ways traditionally associated with one sex but not the other.

Federal equal employment laws and Title VII

Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2(a), makes it unlawful for an employer to discriminate against any individual with respect to compensation, or to terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.

In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the United States Supreme Court held that Title VII extends to discrimination based on the failure to comport with sex stereotypes. In the case, Price Waterhouse claimed they didn't make a female employee a partner due to “interpersonal problems,” including acting too aggressively. But the employee, Hopkins, introduced evidence to show that some of the partners had criticized her for not wearing enough make-up or being feminine enough.

While not ruling on the ultimate merits of the case, the Supreme Court held that under Title VII, a plaintiff need prove only that discrimination was "a motivating factor" for an adverse employment action. Once that standard was met, the burden shifted to the employer to prove by a preponderance of the evidence that its decision would have been the same if sex discrimination had not occurred.

The U.S. Equal Employment Opportunity Commission has also made it clear that treating an applicant or employee unfavorably because of gender identity, transgender status, or sexual orientation is discrimination because of sex in violation of Title VII.

What if the policy in question applies to everyone?

In general, an employer may impose grooming standards or require uniforms on condition that the policy:

  • Applies to everyone, regardless of sex, 
  • Is job-related and reasonably necessary to the operation of the business, and
  • Does not have a negative impact on the employment of people of a certain sex.

However, an employment policy or practice that applies to everyone, regardless of sex, can be illegal if it has a negative impact on the employment of any group protected under Title VII. So if a policy were to make it impossible for employees to express their gender identity, it might well run afoul of Title VII.

Nevada law also prohibits gender identity discrimination

In 2011, the Nevada legislature passed AB 211, which amended NRS 610.010 to include gender identity and expression. NRS 610.010 and subsequent sections make it illegal to base hiring, termination, promotion, compensation, job training, or any other work terms, conditions, or privileges on gender stereotypes or assumptions about abilities, traits, or the performance of individuals because of gender identity or expression. The law also prohibits both intentional and neutral job policies that disproportionately exclude individuals on the basis of gender identity or expression if they are unrelated to the job.

This begs the question of when gender identity or expression is related to the job. In the famous case of Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (2005), the 9th circuit United States Court of Appeals ruled that employers can have a different dress and/or grooming requirements for men and women, so long as the rules do not place an unfairly heavy burden on either sex.

In that case, the plaintiff, Darlene Jespersen, was fired as a bartender at Harrah's Reno casino for refusing to comply with Harrah's comprehensive uniform, appearance and grooming standards for bartenders. In addition to requiring all bartenders, male and female, to wear the same uniform of black pants and white shirts, a bow tie, and comfortable black shoes, the standards included grooming requirements that required women to wear makeup and prohibited men from doing so while mandating that they have short hair. Jespersen's employment was terminated when she refused to wear make-up to work.

Jespersen claimed that it costs more money and takes more time for a woman to comply with the makeup requirement than for a man to comply with requirements such as keeping his hair short. However, the court held that the burden was on Jespersen to make out a prima facie case establishing that the challenged employment action was either intentionally discriminatory or that it had a discriminatory effect on the basis of gender. But she had not introduced any evidence to prove this point and the court refused to take “judicial notice” of it – that is, to accept it as given.

So while the court acknowledged that appearance standards, including makeup requirements, may well be the subject of a Title VII claim for sexual stereotyping, they nevertheless refused to rule in Jespersen's favor. Although Jespersen is still a valid legal precedent, it is questionable whether the same result would apply today, especially if the case turned on gender expression. AB 211 was passed in 2011, six years after the holding in Jespersen.

What if I am not expressing sexual identity?

Given the holding in Jespersen, it is unclear whether the protections to Nevada law would extend to you IF there are separate grooming standards for men and women arguably related to the company's business. So, for instance, if you cisgender male – that is, you are physically male and you identify as a man – and you want to wear make-up to work, it should be permitted to the same extent as for female employees, unless there is a policy prohibiting it. However, the policy must be reasonably related to work and not pose an undue burden on either sex. As the law on this point remains unsettled in Nevada, you may wish to consult with a lawyer versed in employment law before doing anything that might compromise your position.

What can I do if my employer discriminates against me for the way I dress?

If your employer has not yet adopted a policy that contains legal protections for transgender employees, you might want to ask your employer to adopt one.

If your employer is not willing to do so, you may wish to consult an attorney familiar with employment discrimination law. Or you can contact the Nevada Equal Rights Commission at:

1820 E Sahara Ave #314,
Las Vegas, NV 89104
PH: 702 486-7161
Fax: 702-486-7054

Note that a complaint must be filed within 300 days of the date of the alleged discriminatory conduct.

I acted out against my employer and now I am accused of a crime - what can I do?

We understand that being a victim of discrimination is frustrating. If you have acted out against your employer – or been falsely accused of doing so – we invite you to call us for help. Our caring Nevada criminal defense lawyers will stand up for your rights and fight aggressively to get your criminal charges reduced or dismissed. (Also see our article, Can I be fired in California for crossdressing at work?)


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