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Montgomery County Enacts Law Prohibiting Discrimination Based on Gender Identification

Montgomery County, Maryland recently enacted an ordinance -- effective February 20, 2008 -- which prohibits discrimination based upon a person's "gender identity" in employment and in the use of public accommodations (such as retail stores, offices, hospitals, exercise clubs, restaurants, hotels, etc.). The ordinance defines gender identity as an individual's actual or perceived gender, including a person's gender-related appearance, expression, image, identity or behavior, regardless of whether those characteristics differ from the characteristics customarily associated with the person's assigned gender at birth. As a consequence, the ordinance protects not only individuals who have undergone or are undergoing sex change medical procedures, but also persons who dress or behave in a manner which differs from that normally associated with their current gender. The ordinance additionally provides that employers and places of public accommodations may not deny an employee or any other individual equal use of any restroom, shower, dressing or locker room, or similar facility associated with the gender identity publicly or exclusively expressed or asserted by that person. That provision could obviously lead to some delicate situations if other employees or customers object that their privacy is being invaded by allowing someone who claims to be a member of the same sex, but whose appearance resembles the opposite gender, to use one of the designated areas. The ordinance does not provide any guidance as to what employers and places of public accommodations must do in that type of situation. Indeed, the plain wording of the ordinance suggests that an employer or place of public accommodation must override the objections of co-workers and customers when an individual claims to be "associated with" a particular gender identity. If dealing with the gender identity of an employee becomes an issue in your workplace, it may be advantageous to conduct educational sessions or sensitivity training.

The ordinance provides for significant liability if employers or places of public accommodations engage in discriminatory conduct. For example, an individual who prevails on a claim can recover up to $500,000 in damages for humiliation and embarrassment, in addition to damages for any economic harm which was suffered and the attorneys' fees which have been incurred.

A similar law is in place in Baltimore City, but unlike the Montgomery County ordinance, it does not create a private cause of action. At this time, gender identity is not a protected characteristic under federal or Maryland law, or the laws of other cities or counties in this State.

If you have any questions regarding the ordinance, please contact:

Chuck Bacharach Bob Kellner Mike Smith
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Date

01.02.08

Type

Publications

Authors

Bacharach, Charles R.
Kellner, Robert C.

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