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California Employment Law: Discrimination of Transgender Employees

Updated: Nov 23

Learn everything you need to know about the rights of transgender employees and LGBTQ+ members in California.

Transgender employees face a lot of discrimination daily, and facing the same challenges in their work environments is no exception.

This type of discrimination can take the form of a wide range of offensive behaviors, such as workplace gossip and false rumors that specifically target and mock an employee's gender expression and identity. It may also include physical or sexual attacks and mental or verbal abuse.

Let's talk about gender identity discrimination in California and how it affects trans employees.

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If an employer makes decisions that willfully single out or shows bias against an employee's gender identity, it already qualifies as Los Angeles employment discrimination.

While incidents of discrimination are so often easy to recognize, there are situations that you might be unsure about. Here are example scenarios:

  • Terminating a transgender employee's contract after the employer learns of their gender identity or planned transition

  • Denying a transgender employee access to workplace restroom facilities available to all or other employees

  • Requiring a transgender employee to use a restroom that does not match the employee's gender identity, expression, or presentation

  • Harassing a transgender employee (whether sexually, verbally, or physically)

Discrimination based on gender identity is not specifically prohibited under federal law at this time, although there are attempts underway to pass federal legislation to make it so.

In certain cases, some courts interpret sex discrimination laws to include gender identity. In 18 states, state or local anti-discrimination authorities enact protections against gender identity discrimination.

Even More Scenarios:

  • Employees who identify as trans (or are considered to be trans) are not recruited.

  • After finding that a candidate is transgender, an employer decides to rescind a work offer.

  • Transgender workers are paid less than other employees.

  • Providing fewer benefits to transgender workers than to other employees.

  • Employees are not promoted based on their ethnicity, gender identity, or sexual orientation.

  • Employing fewer skilled workers who identify as trans or LGBTQ+ over more qualified employees.

  • Employees who identify as trans are denied training, mentorship, or apprenticeship opportunities.

  • Using racial, sexist, or generally abusive words against trans people.

  • Employees are terminated because of their gender, gender identity, gender expression, or sexual preference.

If any of this happened to you at work, you might have been discriminated against because of your gender identity. A gender discrimination lawyer in Los Angeles, CA specializes in handling employment-related cases of discrimination and might be able to work out your next move.

What is Being Done About Discrimination Against Transgender Employees In California?

Several states use one of three approaches to specifically ban gender identity discrimination. Some states, such as Iowa and New Mexico, have passed legislation that expressly recognizes gender identity as a protected characteristic. Other states, such as Colorado and Minnesota, have laws prohibiting discrimination based on sexual orientation, and gender identity is included in the legislative definition.

Gender identity or expression is included in the legislative definition of sex for purposes of California's anti-discrimination legislation, which protects transgender workers from workplace discrimination.

Examples of Transgender Discrimination in the Workplace

Both policies and activities involving unequal treatment are forbidden under conventional analyses of sex discrimination under Title VII. Disparate care cases are when an employer has intentionally engaged in discriminatory behavior. Disparate impact cases include an employment policy or procedure that appears neutral on the surface but disproportionately impacts a community with a protected characteristic.

According to the EEOC opinion and federal judicial patterns, employers who deliberately discriminate against transgender workers are likely to run afoul of the prohibition against unequal treatment based on sex.

Examples include:

  • When a hiring manager refuses to recruit a transgender person because they may not suit the workplace's "culture," for example, sex discrimination in violation of Title VII may have occurred.

  • If a factory refuses a work application from a transgender man because he does not suit the hiring manager's idea of what a man should look like, it could be illegal sex discrimination; this is also argued as a form of illegal sex stereotyping.

  • A company's strict rules on which gender can use each bathroom are an example of disparate effects. Employees who are transgender can find themselves in an awkward position as a result of this. In that case, it could be reasonable for the employee to request an allowance to use the bathroom of the gender with which the employee identifies, even though the employer does not believe this is the appropriate bathroom. However, if the accommodation causes undue inconvenience, the employer has the right to refuse it.

  • Hostility, Bullying, Stereotyping, and other forms of harassment. Harassment based on gender identity is also prohibited under Title VII as a form of sex discrimination. Harassment is characterized as offensive behavior that is so serious and widespread that it produces a hostile work atmosphere or contributes to a negative employment decision, such as demotion, dismissal, or reassignment to a lower-level role.

A transgender woman might, for example, inform her boss that she is taking hormones and plans to transition. If she is threatened and then dismissed, she might have a claim for assault and wrongful termination under Title VII. Likewise, a trans man who is fired because his transformation is deemed "unnatural" can also file a discrimination lawsuit in California.

Employment regulations are periodically reviewed by Congress and state legislatures to see whether they represent employers' and workers' needs properly. As a result, federal and state laws prohibiting discrimination based on gender identity could change.

Since 2011, California's Fair Jobs and Housing Act has prohibited employment discrimination based on "gender identity" and "gender expression." Still, employers have provided little clarity on the law's practical consequences and what is needed to ensure enforcement. The California Fair Employment and Housing Council (FEHC) has issued new regulations that will take effect on July 1, 2017. Whether or not they do so is debatable.

What Are the Gender Identity Discrimination Laws in California?

The California Fair Employment and Housing Commission (FEHC) has the authority to levy administrative fines against employers who discriminate based on sexual orientation or gender identity. The commission may also levy civil fines against an employer, which must be paid to an employee who has been subjected to transgender employment discrimination in California.

Finally, an employee can request administrative remedies, file a discrimination lawsuit in California against the employer after seeking administrative remedies, and recover legal fees if the lawsuit is filed.

Federal Emergency Health Administration (FEHA)

The Fair Employment and Housing Act, also known as the "FEHA," made it illegal for employers with five or more workers to fire, refuse to recruit, or discriminate in any way against employees who are or are considered to be transgender or gender nonconforming as of January 1, 2004.

FEHA also forbids harassment based on gender identity or expression, regardless of the employer's size. Harassment happens when you are subjected to aggressive, insulting, or threatening actions at work because of your gender identity or gender expression by a boss, coworker, or non-employee. Harassment must be so "serious or persistent" that it interferes with your ability to do your job to be deemed illegal.

The Use of Offensive Jokes and Slurs

One joke or slur about your gender identity or expression, or an inadvertent failure to address you with the correct pronoun, for example, might be disrespectful and unreasonable. Still, it is insufficient to constitute unlawful harassment.

It is, however, unlawful if you are exposed to such remarks daily or if your employer fails to respect your gender identity or gender expression deliberately or persistently. Similarly, if one of your coworkers physically assaults you because of your gender identity, it is abuse, even if it occurs only once.

Anti-discrimination regulations extend to all aspects of the employment relationship, including recruiting, firing, promotion, benefits, and any other employment circumstance.

FEHC Regulations Related To California Transgender Rights In The Workplace

Gender Identity has been given a more comprehensive description. The expanded concept of "gender identity," which is described as a person's "internal perception of their gender...which may include male, female, a mixture of male and female, neither male nor female, a gender other than the person's sex assigned at birth, and transgender," is one of the more important aspects of the new regulations.

The extent of this description is still unclear. The law does not describe what constitutes an "internal knowledge" of one's gender, even though it more accurately captures the current understanding of the continuum of gender identity beyond the binary male/female model.

It's also not necessary for such an understanding to be expressed outwardly to invoke immunity. Furthermore, the rules are silent on how employers can treat workers who identify as non-binary (defined as "a combination of male and female" or "neither male nor female").

How Does Your Employment Affect Transitioning?

It is illegal to discriminate against an employee who is transitioning or transitioning to a gender other than that assigned at birth. Changes in name and pronoun use, facility usage, participation in employer-sponsored events (such as sports teams, team-building programs, and volunteering), hormone therapy, surgeries, and other medical procedures are all part of the transitioning phase.

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What Issues Arise In California Transgender Rights In The Workplace?

1. Employers should not request proof of a candidate's gender or sex.

Employers are forbidden from inquiring about or requesting evidence or proof of an individual's sex, gender, gender identity, or gender expression as a condition of employment. Discrimination against applicants who fail or refuse to indicate whether they are male or female on an application form is also forbidden.

2. Employers must use the preferred name and gender pronoun of their employees.

An employer who fails to comply with an employee's request to be known by a preferred name or gender may be liable for discrimination under the FEHA. Only when required to fulfill a legally-mandated requirement, such as IRS documents or reports to other government entities, can an employer use an employee's legal name and gender (as shown on government-issued identification) rather than the employee's preferred name and gender.

You have the right to be called by the name and pronoun that corresponds to your gender identity if you change at work. Additionally, you can update your employee records and identity documents to reflect the new name and pronoun.

While it is unlikely that a coworker's honest mistake in using the wrong pronoun constitutes discrimination, your employer might be engaging in unlawful harassment if you are knowingly and persistently addressed with the incorrect name or pronoun, even after you have told your employer of your gender identity.