GLAD believes the answer is yes, and that an employer has to respect the chosen name of an employee of any age, including on a nametag, and allow an employee to wear the uniform consistent with their gender identity. This does not mean that an employer won’t take a different point of view. This issue has not been litigated in Maine. GLAD also believes that an employer has to allow an employee to use the bathroom or other facilities consistent with their gender identity. Again though, this does not mean an employer won’t take a different point of view, and it may take advocacy to resolve.

In Massachusetts, a recent decision of the Massachusetts Commission Against Discrimination recognized that an employer’s continued misuse of an employee’s name and pronouns violated the gender identity and constituted unlawful harassment.

The Maine anti-discrimination law (Maine Human Rights Act, Title 5 Maine Revised Statutes Sections 4551-4634) provides protection against discrimination based on actual or perceived “sexual orientation,” which is defined to “include heterosexuality, bisexuality, homosexuality, and gender identity and expression.” 5 Maine Revised Statutes Section 4553. The law applies to local and state governmental employers and private employers with any number of employees. The law also applies to employed minors, since there is nothing in the definition of employer or employee to suggest that an employed minor is not an employee.

It is unlawful for an employer to discriminate against an employee or potential employee on the basis of sexual orientation, including gender identity and expression, in hiring, recruitment, discharge (firing), promotion, compensation, and any other terms or conditions directly or indirectly related to employment. GLAD believes that if an employer requires a name tag or uniform, then those are conditions of employment. Likewise, access to facilities in the course of the job is also a condition of employment.

The Maine Human Rights Commission (HRC) also has issued regulations clarifying the scope of anti-discrimination protections for employees (Chapter 3: Employment Regulations of the Maine Human Rights Commission, 94-348). These regulations require employers, employment agencies, and labor organizations to make “reasonable accommodations” for employees in rules, policies, practices or service that apply directly or indirectly to gender identity or gender expression.

As noted, name tags, uniforms, and access to facilities are conditions of employment. In addition, the duty to reasonably accommodate employees in rules, policies, practices, or services that apply directly or indirectly to gender identity or expression includes a duty to reasonably accommodate employee’s wearing the name tag and uniform and using the facilities consistent with their gender identity.

Note that there is an exception to the duty of accommodation, however, if the business can show that the accommodations would impose an “undue hardship” on the conduct of the business. The burden of proving undue hardship falls on the business, not the employee. GLAD believes that using an employee’s chosen name, including on a nametag, and allowing an employee to wear the uniform and use the facilities consistent with their gender identity are reasonable accommodations that do not impose undue hardship on a business.

GLAD believes employers must allow employees to use the facilities consistent with their gender identity for an additional reason as well:  the Maine Law Court already decided a comparable situation in schools, ruling that transgender students must be allowed to use the bathroom consistent with their gender identity. See Doe v. Reg’l Sch. Unit 26, 2014 ME 11 (2014), https://www.glad.org/wp-content/uploads/2016/10/doe-v-clenchy-decision-1-30-14.pdf. There is no difference between the antidiscrimination laws in employment and public accommodations where both prohibit different treatment based on gender identity. In fact, GLAD brought a lawsuit against Denny’s for denying a transgender woman access to the women’s restroom. (https://www.glad.org/cases/freeman-v-dennys/). As a result of the lawsuit, Denny’s changed its policy to welcome customers to use the restroom consistent with their gender identity. Stated another way, where the law requires respect for a person’s gender identity in schools and employment, that rule applies whether the employee is a youth or adult.

TIP: Some people are confused about where things stand for transgender people and restroom facilities because of the U.S. Supreme Court’s April 2017 dismissal of Gavin Grimm’s case. Grimm’s case involved his high school’s decision to bar him from using the boys bathroom and his challenge to that. He won his case at the federal appeals court because of a Guidance document from the U.S. Departments of Justice and Education, which explained why sex discrimination laws apply.  When President Trump’s administration rescinded that Guidance, the Court sent the case back to the Appeals Court for review. Remember: Maine nondiscrimination law provides protections in Maine. While we work to expand protections under federal law, you can still turn to Maine law for addressing discrimination.

GLAD believes that an employer must allow an employee to use the facilities (including bathrooms, changing rooms, and locker rooms) consistent with their gender identity. As explained above, GLAD believes this because:

1. Maine’s anti-discrimination law protects employees from discrimination based on actual or perceived sexual orientation, which includes gender identity and expression. Maine Human Rights Act, Title 5 Maine Revised Statutes Section 45514634.
2. The Maine Human Rights Commission employment regulations require employers to make reasonable accommodations for employees that apply directly or indirectly to gender identity or gender expression, as long as there isn’t an undue burden on the business. Chapter 3: Employment Regulations of the Maine Human Rights Commission, 94-348. GLAD believes that allowing employees to use the facilities consistent with their gender identity is a reasonable accommodation that does not impose an undue burden.
3. In Doe v. Reg’l Sch. Unit 26, the Maine High Court found that schools must allow students to use the bathroom consistent with their gender identity. The Denny’s case GLAD litigated was resolved quickly in favor of bathroom access when Denny’s realized it was violating the law.

This should ensure access to any sexsegregated facility – including showers, changing rooms, or restrooms – consistent with a person’s gender identity.

If your employer refuses, you can file a complaint of discrimination with the Maine Human Rights Commission by phone, mail, or online at:

(207) 624-6050

State House Station #51

Augusta, ME 04333-0051

www.state.me.us/mhrc/index.shtml

For more information on pursuing a complaint, refer to GLAD’s website at: https://www.glad.org/wp-content/uploads/2017/01/me-lgbt-overview.pdf beginning on page 10 or call GLAD Answers.

Regulations issued by the Maine Human Rights Commission (HRC) define the terms “gender identity” and “gender expression” as follows:

“Gender identity means an individual’s genderrelated identity, whether or not that identity is different from that traditionally associated with that individual’s assigned sex at birth, including, but not limited to, a gender identity that is transgender or androgynous.”

This definition of gender identity is not limited to “male” and “female,” and appears broad enough to encompass those not on the gender binary, including but not limited those who are “genderqueer” or “androgynous.”

The regulations define gender expression as:

“the manner in which an individual’s gender identity is expressed, including, but not limited to, through dress, appearance, manner, speech, or lifestyle, whether or not that expression is different from that traditionally associated with that individual’s assigned sex at birth.”

Gender expression is simply the outward manifestation of gender identity, and need not be “male” or “female.”

In an Advisory Opinion clarifying regulations (Maine Human Rights Commission, Advisory Opinion – Employee Bathroom Access, Sept. 10, 2013), the HRC stated that gender expression is protected only when it accords with a person’s gender identity. Or, a gender expression that does not accord with a person’s gender identity is not protected. What the HRC is getting at here is that a person whose gender identity is male cannot expect anti-discrimination protections to apply if he dresses as a woman or attempts to access sexsegregated facilities set aside for women. It does not limit gender identity or gender expression to male and female only.

In that Advisory Opinion, the HRC also said it is not necessary that a person have genderreassignment surgery or other medical intervention to be covered by the protections on gender identity and expression. As they put it; “what is important is a person’s internal sense of being male or female.”

As explained above, the Maine antidiscrimination law protects potential employees (people applying for jobs) from being discriminated against based on their sexual orientation (which is defined to include gender identity and gender expression) during hiring (the job application process). The HRC employment regulations also protect people from discrimination based on their gender identity and gender expression. For these reasons, GLAD does not believe people should have to hide their identity, including if their chosen name and affirmed gender are different than their legal name and gender. However, this does not mean a potential employer won’t take a different point of view. In addition, it is unfortunately very hard to prove discrimination during hiring.

 TIP: Anyone applying for a position of employment should be careful not to lie or misrepresent information on an application that can be used by the employer to justify not hiring them even if the real reason may be bias.

If you believe you have been discriminated against during hiring, you can file a complaint with the Maine HRC and/or call GLAD Answers. If you suspect or have reason to believe you may have suffered discrimination in the hiring process of a job, you can also call GLAD Answers so we can keep track of the specific employer.

Employer questions during a job interview may reveal discriminatory animus in the hiring process. It may help to know that the Maine antidiscrimination law also forbids employers, employment agencies, or labor organization from eliciting (asking about directly or indirectly, trying to find out about) or recording (writing down) information about a person’s sexual orientation (which is defined to include gender identity and gender expression). In other words, a potential employer can’t ask you about your sexual orientation, gender identity, or gender expression.

GLAD has resources to help if you are interested in changing your legal documentation to reflect your chosen name and affirmed gender. See https://www.glad.org/wp-content/uploads/2017/01/trans-legal-issues.pdf beginning on page 42 or call GLAD Answers.

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