Nonbinary people have a gender identity that does not fit into the male/female binary. According to The Trevor Project’s 2019 National Survey on LGBTQ Youth Mental Health, one in four LGBT youth identify as nonbinary.

The number of nonbinary individuals in the workplace is thus on the rise, but they continue to experience significant rates of discrimination in the workplace and in the hiring process.

Many nonbinary individuals are repeatedly misgendered, but harassment law does not reach accidental or isolated remarks, nor does it generally require the use of any idiosyncratic pronouns a person might request. See Jessica A. Clarke, They, Them, and Theirs, 132 Harv. L. Rev. 894, 957-58 (2019). Harassment generally must be severe or pervasive to be actionable.

The law surrounding LGBT protections is constantly evolving. In a landmark decision, the Supreme Court in Bostock v. Clayton County held that workplace discrimination based on an individual’s sexual orientation or gender identity is unlawful discrimination because of sex under Title VII of the Civil Rights Act of 1964. Justice Gorsuch wrote in the majority opinion: “An individual’s homosexuality or transgender status is not relevant to employment decisions.”

​Because the Court used the binary definition of sex as male or female to demonstrate that discrimination against homosexual or transgender individuals involved in sex discrimination, it is unclear whether Title VII applies to nonbinary or gender nonconforming individuals.

There is a compelling argument that there is no coherent way to interpret the Bostock v. Clayton County decision as excluding nonbinary individuals from protection, since the decision applies with equal force to nonbinary people as it does to transgender men and women.

A person is understood as nonbinary by virtue of sex-based characteristics, so when an employer discriminates against someone because of their nonbinary status, it inevitably discriminates because of sex. Without express application to nonbinary individuals, though, there remains a potential loophole for employers to permissibly discriminate against nonbinary individuals without technically implicating sex discrimination.

The EEOC has likewise ruled that Title VII's prohibition against discrimination based on a person's sex includes gender identity and sexual orientation. The federal agency has further provided guidance about how employers may fulfill EEO-1 reporting obligations for nonbinary employees, providing additional space to explain if any employees identify as nonbinary.

Lower courts are more frequently discussing the need to expand discrimination protection to nonbinary employees. The Sixth Circuit in EEOC v. R.G. & G.R. Harris Funeral Homes recently stated “discrimination because of a person’s transgender, intersex, or sexually indeterminate status is no less actionable than discrimination because of a person’s identification with two religions, an unorthodox religion, or no religion at all. And ‘religious identity’ can be just as fluid, variable, and difficult to define as ‘gender identity;” after all, both have ‘a deeply personal, internal genesis that lacks a fixed external referent.”

22 states currently extend protections based on gender identity, although Texas is not one of them. The most prominent interpretation to encompass nonbinary individuals is the New York City Human Rights Law’s gender discrimination provision that expressly reaches individuals who are nonbinary, gender nonconforming, and intersex.

Nonbinary individuals are seeing more protections under federal and state laws than ever before, but there are many loopholes employers can find to continue discriminatory practices in the workplace. Employees should keep a close eye on legal developments in the discrimination field, as the landscape is ever-changing—and hopefully for the better.

The numbers behind sexual harassment in the workplace in the U.S. are staggering. In Fiscal Year 2020, more than 6,500 sexual harassment claims were filed with the EEOC, and it is widely known that sexual harassment in the workplace—much like sexual assault—is under-reported by employees.

The Society for Human Resource Management (SHRM) survey found that 11 percent of non-management employees said they had experienced some form of sexual harassment in the past 12 months, yet 76 percent of those said they did not report it for reasons including fear of retaliation or a belief that nothing would change.

Although most employers have a policy on sexual harassment and a complaint and grievance procedure for victims of harassment in their workplace, some employees are not aware of it, and many policies and procedures inadequately prevent harassing conduct. Employers ultimately bear high costs in defending sexual harassment actions. In 2019 alone, employers paid out $68.2 million to employees alleging sexual harassment violations.
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With the sweeping power of the #MeToo movement encouraging victims to share their stories and the consequences employers and perpetrators now experience when sexual harassment allegations come to light, the landscape of harassment law is bound to change—and hopefully for the better.

​If an employee does experience sexual harassment, there are several important factors to keep in mind.

Sexual harassment is a form of sex discrimination under Title VII of the Civil Rights Act of 1964.

The U.S. Equal Employment Opportunity Commission (EEOC) defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature” that interferes with one’s employment or work performance or is so frequent and severe that it creates a “hostile or offensive work environment.” Simple teasing, offhand comments, or isolated incidents may not be considered actionable harassment.

The victim, as well as the harasser, may be a woman or a man, and the victim does not have to be the opposite sex from the harasser. The harasser may be the victim’s supervisor, an agent of the employer, a supervisor in another department, a co-worker, or a non-employee vendor or customer. The victim can also include anyone affected by the offensive conduct, but regardless the harasser’s conduct must be unwelcome. The victim does not have to suffer economic injury or discharge for the harassment to be actionable.

Under Texas law, sexual harassment at work is addressed by the Texas Workforce Commission (TWC).

The law applies to private employers with 15 or more employees as well as government and labor organizations. Similar to the EEOC’s definition, the TWC holds that sexual harassment “can be unwelcome advances, requests for sexual favors, or physical touching of a sexual nature.”

Victims of sexual harassment in the workplace have several options for initiating a sexual harassment claim:

• Go through the complaint and grievance procedure maintained by his or her employer.
• File a claim with the state Texas Workforce Commission’s Civil Rights Division (TWC-CRD)
• File a claim with the federal EEOC.

Filing a claim with both agencies is unnecessary but permissible as long as the employee indicates to one of the agencies that he or she wants it cross-filed with the other agency.

There are strict deadlines in which employees must file their sexual harassment charge. To preserve a claim under state law, an employee must file with the TWC-CRD within 180 days of the alleged harassment. The deadline for filing an EEOC charge is 300 days after the last date of alleged harassment.

​Although an employee may wish to consult an attorney prior to filing a claim, it is not necessary to have an attorney file a claim with either agency, and the employee should be careful not to miss the stringent deadlines to file.
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If sexual harassment escalates to sexual assault or rape, such harassment goes beyond workplace discrimination and should be reported to the police or other law enforcement agencies as a criminal act.

Once the charge is filed, the EEOC will return a copy of the charge with a charge number, and within 10 days, the EEOC will also send a notice and a copy of the charge to the employer.

The EEOC may:

• ask both parties to take part in mediation.
• ask the employer to provide a written response to the charge before giving the charge to an investigator.
• dismiss the charge if it is untimely filed or the EEOC does not have jurisdiction.

If, at the conclusion of the EEOC’s investigation, it determines that sexual harassment did not occur, the charging party will be given a “Notice of Right to Sue,” which permits the employee to file a lawsuit.

If, however, the EEOC determines sexual harassment did occur, the agency will try to reach a voluntary settlement with the employer, and if a settlement cannot be reached, will refer the case to either the EEOC’s legal staff or the Department of Justice to determine whether the agency should file a lawsuit on the employee’s behalf.

​If the EEOC decides not to file a lawsuit, the employee is given the “Notice of Right to Sue.”

Sexual harassment claims may be brought in either state or federal court, although a case filed in state court under federal law such as Title VII may be subject to removal to federal court if the employer requests to move the case.