End Of “Binary Sex Identity” Is Employer Conundrum

A  look at case law regarding gender discrimination and how this issue is playing out in a world where “binary sex identity” can no longer be assumed. One specific issue that has generated numerous lawsuits is whether discrimination based on sexual identity or orientation comes within Title VII’s prohibitions against discrimination based on “sex.” These and other claims for wrongful discrimination, hostile workplace and other employment practices are on the rise, and they can be expensive, according to Robins Kaplan attorney Marie L. Roehm. A single claim, she writes, “can easily cost over $100,000 to defend, while a class action lawsuit can rack up more than $1,000,000 in defense fees and costs.” In view of these potential costs, she advises employers to look carefully at the Employment Practices Liability Insurance (EPLI) option, either as part of a package or as standalone policy. “The premium and the deductible may represent a substantial investment by the employer,” she says,“but if a claim is made, the insurer’s payment of the defense expenses shows a good return on that investment regardless of the outcome of the claim.”