Discrimination | Transgender Rights | Rhode Island
Does Rhode Island have an anti-discrimination law protecting transgender individuals from discrimination?
Yes. Since 1995, Rhode Island has had a comprehensive anti-discrimination law concerning sexual orientation in employment, housing, credit and public accommodations and has included sexual orientation under its equal opportunity and affirmative action law. In 2001, Rhode Island added gender identity or expression to each of these statutory protections (R.I. Gen. Laws, ch. 11-24 (public accommodations); ch. 28-5 (employment); ch. 28-5.1 (equal opportunity and affirmative action); and ch. 34-37 (housing and credit)).
Does it also protect people perceived to be transgender?
Yes. The anti-discrimination laws define “sexual orientation” as “having or being perceived as having an orientation for heterosexuality, bisexuality or homosexuality and define “gender identity or expression” as including a “person’s actual or perceived gender” (R.I. Gen. Laws §§ 28-5-6(11)(gender identity or expression) and (16)(sexual orientation) (employment); 34-37-3(9)(gender identity or expression) and (15)(sexual orientation) (housing and credit); and 11-24-2.1(h)(sexual orientation) and (i)(gender identity or expression) (public accommodations)). Thus, if a person is fired because they are perceived to be gay (whether they are or not), they may still invoke the protection of the anti-discrimination law to challenge the firing.
How do I file a claim of discrimination?
You may file a charge of discrimination in person or in writing at the Rhode Island Commission For Human Rights (RICHR), 180 Westminster Street, 3rd floor, Providence, RI 02903. If you plan to go in person, you can call in advance to set up an appointment and find out what you need to bring. Their phone number is (401) 222-2661 (voice) and 401-222-2664 (TTY). The fax number is (401) 222-2616.
The charge must be under oath and must state the name and address of the individual making the complaint as well as the name and address of the entity against which he or she is complaining (called the “respondent”). The complaint must set out the particulars of the alleged unlawful acts and (preferably) the times they occurred.
Do I need a lawyer?
No, but GLAD strongly encourages people to find lawyers to represent them throughout the process. Although the process is designed to allow people to represent themselves, there are many legal rules governing the RICHR process, and employers and other defendants are almost certain to have legal representation.
What are the deadlines for filing a complaint of discrimination?
A complaint must generally be filed with the RICHR within one year of the discriminatory act or acts (R.I. Gen. Laws §§ 28-5-17(a); 34-37-5 (b); see Rules and Regulations of the RICHR Rule 4.05). There are very few exceptions for lateness, and GLAD encourages people to move promptly in filing claims.
Can I file more than one type of discrimination complaint at once, for example, if I believe I was fired both because I am transgender and Latina?
Yes, you can file several claims if you have suffered discriminatory treatment based on more than one personal characteristic. The state antidiscrimination laws for employment and public accommodations forbid taking an action against someone because of sexual orientation or gender identity or expression as well as race, color, religion, sex (including pregnancy and sexual harassment), disability, age, or country of ancestral origin (R.I. Gen. Laws § 11-24-2 and § 28-5-7 (1)(i)).
For credit, the R.I. law adds to the foregoing prohibitions on discrimination based on marital status, familial status, military status and associating with members of a protected class (R.I. Gen. Laws § 34-37-4(b)).
In housing, all of the foregoing are protected as well as status as a victim of domestic violence and housing status (R.I. Gen. Laws, § 34-37-4 (a)).
What happens after a charge is filed with the RICHR?
The RICHR may initiate a preliminary investigation in an employment, credit, housing, or public accommodations case. If the RICHR determines it is probable that a defendant is or was engaged in unlawful practices, then the RICHR shall attempt to eliminate the unlawful practices by “informal methods of conference, conciliation and persuasion” (See, e.g., R.I. Gen. Laws, § 28-5-17(a) and § 34-37-5(b); see also Rules and Regulations of the RICHR Rule 5.02).
If conciliation is unsuccessful, or at any time when the circumstances so warrant (including before investigation in egregious cases), the RICHR may serve a complaint and notice of hearing on the respondent. This process involves a trial type hearing but is not as formal as an actual trial in court. This process must be commenced within 2 years of when the complainant first filed his or her charge with the RICHR (R.I. Gen. Laws §§ 28-5-18; 34-37-5).
After the RICHR rules (either because it has found no probable cause to proceed, or because it has ruled on the merits after a hearing), any complainant, intervener, or respondent claiming to be aggrieved by a final order of the commission may obtain judicial review in Superior Court (R.I. Gen. Laws §§ 28-5-28; 34-37-6).
There are a few times when the case can be taken from the RICHR and filed in court. For example:
- Once the complaint has been pending at the RICHR for at least 120 days, (but less than 2 years and before any conciliation agreement has been made), the complainant may request permission to remove the case from the RICHR. That request should be granted, and the complainant then has 90 days from when he or she receives a “right to sue” letter to file the case in Superior Court (R.I. Gen. Laws § 28-5-24.1(a) and § 34-37-5(l); see also Rules and Regulations of the RICHR Rule 17.01).
- After the RICHR finds probable cause to credit the allegations in a complaint, either party may elect to terminate the proceedings at the RICHR and file in court as long as they do so within the strict timelines set by the RICHR rules (See R.I. Gen. Laws, § 28-5-24.1(c) and § 34-37-5(n)).
- In addition, in housing cases, the RICHR may go to court to seek an order forbidding the respondent from selling, renting or otherwise disposing of the property at issue while the case is pending (R.I. Gen. Laws § 34-37-5(m)).
If probable cause is found lacking, the case is over unless you seek judicial review of the “lack of probable cause” finding. There are special rules and time constraints on this process which must be observed strictly (R.I. Gen. Laws § 28-5-28 and § 34-37-6).
What are the legal remedies the RICHR may award for discrimination if an individual wins their case there?
In all cases alleging different treatment discrimination, the remedies for a successful complainant in an intentional discrimination case may include compensatory damages (including for emotional distress), attorney’s fees (including expert fees and other litigation expenses), cease and desist orders, and any other action which will effectuate the purpose of the anti-discrimination laws (R.I. Gen. Laws § 28-5-24 (b)(employment); § 34-37-5(h) (housing cases); § 11-24-4 (public accommodations cases); Rules and Regulations of the RICHR Rule 12.02).
In addition, in employment cases, a successful complaint may be entitled to a remedy involving hiring, reinstatement or upgrading of employment, back pay, and admission or restoration to union membership (R.I. Gen. Laws § 28-5-24 (a)(1)). If the adverse job action was taken against the individual for a variety of reasons, and sexual orientation or gender identity or expression was not the sole motivating factor, the RICHR may limit the damages awarded.
In housing cases, the RICHR is also empowered to impose civil fines, with increasing severity depending on whether the offender has committed other discriminatory acts in the past (R.I. Gen. Laws § 34-37-5(h)(2)).
When complainants prevail in court, the remedies named above may be awarded, as well as punitive damages when the challenged conduct is shown to be motivated by malice or ill will, or when the action involves reckless or callous indifference to the statutorily protected rights of others (R.I. Gen. Laws § 28-5-29.1 (employment); § 11-24-4 (public accommodations); § 34-37-5 (o) (3) (housing)). The only exception is that punitive damages may not be awarded against the State.
Can I also file a discrimination complaint with a federal agency?
Yes, in many cases. Since federal law and state law contain overlapping provisions, someone bringing a discrimination claim may sometimes pursue protections under both. For example, the federal employment non-discrimination law, called Title VII, applies to employers with at least 15 employees and forbids employment discrimination based on race, sex, age, religion, and disability (which includes HIV status).
While Title VII does not expressly forbid discrimination based on sexual orientation or gender identity, a growing number of courts and government agencies have taken the position that its proscription against sex discrimination encompasses both (See, e.g., United States & Dr. Rachel Tudor v. Southeastern Oklahoma State University, 2015 U.S. Dist. LEXIS 89547 (2015) (denying motion to dismiss professor’s Title VII complaint that school had subjected her to a hostile work environment based on her gender identity)). In two separate decisions in 2012 and 2016, the EEOC itself concluded that sexual orientation discrimination, gender identity discrimination, and sex discrimination are one and the same, since the latter two are based on preferences, assumptions, expectations, stereotypes, and norms associated with masculinity and femininity (See Macy v. Holder, EEOC Appeal No. 0120120821 (Apr. 20, 2012); Baldwin v. Foxx, EEOC Appeal No. 0120133080 (July 15, 2015)). Although the EEOC’s decisions are not binding on the courts, many have used similar reasoning in affirming Title VII’s applicability to discrimination based on gender identity and sexual orientation (See, e.g., Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) (holding that Title VII prohibits discrimination against transgender people based on gender stereotyping); Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151, 1160 (C.D. Cal. 2015) (holding “sexual orientation discrimination is a form of sex or gender discrimination”)).
LGBT people who are discriminated against in housing may also be able to file a complaint with the federal Department of Housing and Urban Development (HUD) in addition to the RICHR. For more information go to: http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing _equal_opp/LGBT_Housing_Discrimination.
Should I file a complaint with a federal agency?
GLAD recommends that, where there may be overlapping state and federal jurisdiction, you explore filing with the state first but keep in mind the possibility of pursuing a federal claim as well. Federal complaints must be filed within 180 days of the discriminatory act with the Equal Employment Opportunity Commission (EEOC). However, if you initially institute your complaint with the RICHR and indicate that you wish to have the complaint cross-filed with the EEOC, then the time limit is extended to the earlier of 300 days or 30 days after the RICHR has terminated the case (42 United States Code § 2000e-5(e)(1)). (People who work for federal agencies are beyond the scope of this publication.)
If you have a sexual orientation or gender identity or expression complaint, you should check off “sex” as well as “sexual orientation” or “gender identity” as the bases for your claim and request that the RICHR cross-file your complaint with the EEOC.
Are there other options for filing a complaint for discrimination?
Possibly yes, depending on the facts of your particular situation.
Union: If you are a member of a union, your contract (collective bargaining agreement) may provide additional rights to you in the event of discipline, discharge or other job-related actions. In fact, if you obtain relief under your contract, you may decide not to pursue other remedies. Obtain and read a copy of your contract and contact a union steward about filing a complaint. Deadlines in contracts are strict. Bear in mind that if your union refuses to assist you with a complaint, you may have a discrimination action against them for their failure to work with you, or for failure of duty of fair representation.
State or Federal Court: After filing with the RICHR, the EEOC, or both, you may decide to remove your discrimination case from those agencies and file the case in court. There are rules about when and how this must be done, as discussed above. In addition, you may file a court case to address other claims which are not appropriately handled by discrimination agencies. For example, if you are fired in violation of a contract; fired without the progressive discipline promised in a handbook; or fired for doing something the employer doesn’t like but which the law requires, then these matters are beyond the scope of what the agencies can investigate and the matter should be pursued in court. Similarly, if your claim involves a violation of constitutional rights, such as a teacher or governmental employee who believes his or her free speech or equal protection rights were violated, then those matters must be heard in court.
What can I do if my employer fires me or my landlord evicts me for filing a complaint of discrimination?
It is illegal to retaliate in these circumstances, and the employee or tenant could file an additional complaint for retaliation. If an employer, employment agency or labor organization discriminates against you in any manner because you have opposed a forbidden practice or have made a charge, testified or assisted in a complaint filed under the antidiscrimination laws, then you can state a claim of retaliation ( R.I. Gen. Laws § 28-5-7 (5) and § 34-37-4(m). See also R.I. Gen. Laws, § 28-51-2(b)(1)(ii) (“Every employer shall adopt a policy against sexual harassment which shall include a statement that it is unlawful to retaliate against an employee for filing a complaint of sexual harassment of for cooperating in an investigation of sexual harassment”); Provencher v. CVS Pharmacy, 76 F.E.P. Cases (BNA) 1569 (1st Cir. 1998)(upholding federal retaliation claim of gay man). The U.S. Supreme Court has broadly interpreted the anti-retaliation provisions in federal anti-discrimination laws. See Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)).
What can I do to prepare myself before filing a complaint of discrimination?
Contact GLAD Answers at www.GLADAnswers.org or by phone at 1-800-455-4523 (GLAD) any weekday to discuss options.
As a general matter, people who are still working with or residing under discriminatory conditions have to evaluate how filing a case will affect their job or housing, and if they are willing to assume those possible consequences. Even if you have been fired or evicted, you may decide it is not worth it to pursue a discrimination claim. This is an individual choice which should be made after gathering enough information to make an informed choice.
Some people prefer to meet with an attorney to evaluate the strength of their claims before filing a case. It is always helpful to bring the attorney an outline of what happened on the job that you are complaining about, organized by date and with an explanation of who the various players are (and how to get in touch with them); what happened; who said what; and who else was present. Try to have on hand copies of your employee handbooks or personnel manuals, as well as any contracts, job evaluations, memos, discharge letters and the like. If you are concerned about a housing matter, bring a copy of your lease, along with any notices and letters you have received from your landlord.
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