Nevada Adds Gender Identity To Categories Protected From Employment Discrimination

Effective October 1, 2011, Nevada law will be amended to prohibit discrimination based on gender identity or expression of a person. The amendments, enacted through Assembly Bill 211 ("AB 211"), are primarily intended to extend protections and prohibit discrimination against transgender employees. The bill adds protections against discrimination based on gender identity and expression to Nevada's existing employment non-discrimination laws.

AB 211 defines gender identity or expression as "gender-related identity, appearance, expression or behavior of a person, regardless of the person's assigned sex at birth." However, the definition of "gender" adopted by the Nevada Legislature goes beyond protecting against transgender discrimination. It also prohibits discrimination based on an individual's identity, appearance, expression or behavior as they relate to the individual's gender.

The law makes it unlawful "to fail to hire or to fire or otherwise discriminate" against employees based on their "gender identity or expression." Employers with 15 or more employees will be subject to the law. Nevada law already prohibits job discrimination based on a person's color, race, sex, religion, age, disability, national origin, or sexual orientation. Employees who believe they have been discriminated against under the new law can file complaints with the Nevada Equal Rights Commission.

Although employers cannot discriminate against people based on their gender "identity or expression," employers will be able to require all of their employees to wear appropriate workplace clothing. They will also be able to require employees to maintain grooming standards that are consistent with their preferred gender. The new law states, "It is not an unlawful employment practice for an employer to require employees to adhere to reasonable workplace appearance, grooming and dress standards so long as such requirements are not precluded by law, except that an employer shall allow an employee to appear, groom and dress consistent with the employee's gender identity or expression." For example, it appears that a policy prohibiting males from wearing make-up would be valid, as long as an employee identifying with the male gender is also prohibited from wearing make-up.

It is unclear whether under AB 211 an employer can require that an employee use only the restroom used by members of his or her biological sex. As a general matter under similar laws in effect elsewhere...