Orange County Employment Lawyers Blog
It’s been nearly three years since the U.S. Supreme Court ruled in Bostock v. Clayton County, Georgia that firing someone on the basis of their sexual orientation or transgender status is a breach of Title VII – specifically, its prohibition against discrimination on the basis of sex. And yet, data continues to show that people who are nonbinary (about 1.2 million adults in the U.S.) are facing clear discrimination – both on-the-job and while searching for work. 
A market analysis by Business.com (a business resource platform) revealed that nearly 80 percent of nonbinary workers believe that to identify themselves according to their gender would hinder their job search. More than half say their gender identity has actively impacted their work life in a negative way.
To test this theory, researchers sent out 180 “phantom” resumes to various job postings – identical (with gender-ambiguous names like, “Taylor Williams”) except for the fact that some indicated they/them pronouns while others indicated typical cisgender pronouns. Perhaps unsurprisingly, those resumes that contained nonbinary pronouns received fewer interview requests. Resumes with they/them pronouns received 8 percent fewer responses from employers. Nearly 65 percent of these companies are designated “Equal Opportunity Employees,” so the fact that there’s a noticeable disparity even among them is troubling.
California has prohibited employment discrimination on the basis of sex since 1992 – and broadened that law in 2000 to protect transgender, nonbinary, and homosexual workers. And yet, a recent report from the California Civil Rights Department revealed that among private employers in the state with 100+ workers, more than half of those who identified as non-binary were in positions with below-average pay (less than $31,000 annually). By comparison, 32 percent of cisgender men fell beneath this pay grade, as did 43 percent of cisgender women.
Leadership teams in most industries don’t proportionately represent the U.S. population, and haven’t for a long time, Cisgender, heterosexual, White, Christian men tend to be overrepresented among most new hires and employees in higher-paying, more desirable jobs. This is especially true in more conservative regions, where laws restrict LGBTQIA+ access to certain bathrooms and discussion/books/education about what it means to be LGBTQIA+. Dual discrimination (among those of color, racial/ethnic minorities, or religions) also led to an outsized impact.
Hiring Practices Should be Intentional
One of the excuses we as Los Angeles employment lawyers sometimes hear from employers when it comes to discriminatory hiring practices is that they weren’t intentional. They might concede that a certain practice or question put some protected groups at a disadvantage – but they “didn’t mean to.”
The reality is: That doesn’t matter. Employers need to craft their hiring practices with intention. Companies have a responsibility to actively seek and identify their own biases (conscious or otherwise). They need to listen to their employees with differing perspectives about their thoughts about company culture and hiring practices. Those that actively seek to be inclusive (and aligned with the law) should regularly audit their hiring practices and platforms to ascertain whether they’re unintentionally sidelining certain protected groups. And they must hold themselves accountable when they fall short of the law and best ethical practices.
If you believe you have been discriminated against in hiring or at work because of your gender identity, we can help.
Contact the employment attorneys at Nassiri Law Group, practicing in Newport Beach, Riverside and Los Angeles. Call 714-937-2020.
Additional Resources:
Sexual Orientation and Gender Identity (SOGI) Discrimination, EEOC
More Blog Entries:
How Hiring Technology Can Lead to Los Angeles Employment Discrimination Lawsuit, March 6, 2023, California Nonbinary Employment Discrimination Lawyer Blog