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California Employment Law: Discrimination of Transgender Employees
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.
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.
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.
Employers should not ask for paperwork to support a transgender employee's request for a name change if other workers are not required to provide evidence. If an employer's policy or procedure allows all workers to use their full legal name on company documents, the employer should revise the policy to accommodate employees who choose to use a different name.
Such policies and procedures should be adaptable to demonstrate an employer's commitment to treating all workers with dignity and respect. While transgender workers should not be treated differently than other employees who request a name change, they should be treated equally.
3. Employees can adhere to their gender identity's appearance, grooming, and dress-code standards.
The FEHA expressly permits employers to impose fair workplace appearance, grooming, and dress/clothing requirements as long as workers are permitted to dress in a manner that is compatible with their gender identity or gender expression. This means that if your workplace has a dress code that is based on your gender identity or gender expression, the dress code must be applied in a manner that judges your compliance based on requirements that are suitable for your gender identity or gender expression.
When it comes to personal appearance, grooming, or dress, an employer cannot force an employee to adhere to a norm that is incompatible with that person's gender identity or expression.
By the regulations, employers should handle workers who do not identify as male or female. As a result, employers who implement gender-specific dress codes can be held responsible for discrimination against employees who do not specifically identify as male or female, who identify as both male and female, or who are in transition.
Job responsibilities must be aligned with an employee's gender identity or expression. This means that an employer cannot ask a transman who works as a clothing model to dress up in female-coded clothing without their explicit permission.
If all of the elements of the BFOQ defense are met, employers must allow an employee to perform duties that conform to the employee's gender expression or gender identity, not the gender assigned to the employee at birth.
4. Employers should give access to bathrooms that coincide with the employees' gender identity
By law, transgender employees have the right to use the toilet that corresponds to their gender identity at work. It is permissible for the employer to provide transgender workers with a unisex bathroom as long as they are not denied the right to use the restroom that corresponds to their gender identity.
Employers can, in theory, always have a readily accessible unisex bathroom for any employee who requests it. However, if a gender-appropriate toilet is open, no employee should be forced to use it.
What to Do if You Experience Transgender Discrimination in the California Workplace?
While the higher courts haven't completely addressed the issue, legislation and agency recommendations around the country are heading in the right direction. Some states have attempted but failed to pass legislation requiring workers to use the toilet of their birth sex. On the other hand, employers in Colorado, Iowa, and Vermont must allow employees to use the restroom that corresponds to their gender identity.
In April 2015, the United States Equal Employment Opportunity Commission (EEOC) ruled that a transgender woman who notified her employer of her gender identity must be able to use the bathroom of the gender with which she identifies. In 2014, an executive order that prohibited and punished the act of workplace discrimination against transgender federal employees and contractors was signed by President Barack Obama.
The Occupational Safety and Health Administration (OSHA) requires employers to provide bathrooms to their employees for health reasons. According to OSHA, employers cannot place arbitrary restrictions on bathroom use. Transgender employees can suffer psychological damage if their employers limit which bathrooms they may use, according to OSHA.
Discrimination may also cause workers so much humiliation that they fail to use the toilet at work, causing physical harm. Transgender people must have access to toilets that adhere to their gender identity. OSHA also requires employees to be able to work in a manner that is consistent with their gender identity in their everyday lives, regardless of whether or not they have changed their gender.
On the other hand, OSHA has not set any conditions on employers' transgender bathroom policies; rather, it has suggested measures employers can take, such as encouraging employees to use the bathroom that corresponds to their gender identity.
Employees should not be asked to inform their employer which gender they identify with, and all staff should have access to gender-neutral toilets.
OSHA recently issued a "Guide to Restroom Access for Transgender Workers" to address some of the more practical questions and problems surrounding how to accommodate the needs of transgender employees best. Although the above suggestions can help with certain bathroom problems, OSHA regulations say employers cannot compel transgender employees to use these restrooms exclusively.
The 4th Circuit ruled on March 27, 2015, in Lusardi v. Department of Army that denying employees equal access to a popular toilet corresponding to their gender identity is sex discrimination. As a result, referring a transgender person to a single-user bathroom would not allow an employer to avoid having equal access to a shared toilet.
Several employers have successfully dealt with the issue of bathroom use on a case-by-case basis. The most obvious alternative is for transgender employees to use the toilet, corresponding to their current gender presentation. On the first day of the work shift, the employee can use the bathroom that corresponds to his or her new gender.
This decision should be communicated to all workers with the support of management. Other staff will be able to return to work and forget about the problem if management supports the right to use a gender-appropriate bathroom.
If a single-occupancy unisex bathroom is available near the workplace, the transgender employee can take advantage of it. If this does not solve the issue, or if your employer refuses to work with you to find a solution, you should obtain legal advice from a discrimination attorney in Los Angeles, who can provide you with further advice and talk with your employer about its legal obligations.
There are still issues with Multi-User Restrooms
Even though the new regulations require employers to allow workers to use "facilities that conform to the employee's gender identity or gender expression, regardless of the employee's assigned sex at birth," they do not provide guidelines on how to provide facilities for employees who have no internal understanding of their gender identity.
Is it necessary for an employee who identifies as nonbinary to be allowed to use whatever bathroom they choose, regardless of how they present themselves?
To make matters even more complicated, an employer can only conduct "a fair and confidential investigation of an employee for the sole purpose of maintaining access to comparable, secure, and sufficient multi-user facilities." It's unclear exactly what this clause allows.
Furthermore, regulations elsewhere forbid an employer from inquiring about an employee's gender identity or gender orientation unless the employer can demonstrate that all three factors necessary to create a Bona Fide Occupational Qualification ('BFOQ") protection are present:
The job requires an employee to observe other employees in a state of nudity or conduct body searches.
It would be offensive to "prevailing social standards" to have a person of a different sex present.
It is "detrimental to the mental or physical welfare" of those being observed or searched.
Even if an employer could prove the second and third factors, a multi-user restroom with locked stalls would appear to preclude evidence of the first factor, and hence the protection if an employer prohibited an individual who poses as one gender but identifies as another from using his preferred gender's multi-user restroom.
Proper Signages for Single-Occupancy Restrooms
However, for single-occupancy bathrooms, the rules make it simple to comply with: employers need only to adjust the signage to ensure that it is gender-neutral. As examples of acceptable signage, using words like "all-gender bathroom" and "unisex" are suggestions.
Should Your Company's Health Insurance Cover Costs for Transition?
This question's answer is determined by the terms of the employer's health insurance plan. Approximately 200 of the country's largest employers have healthcare plans that include transition-related medical services. Gender identity discrimination has been challenged by recent advances at the state and federal levels. At the state level, the automatic ban on Medicare coverage for sex reassignment surgery has been lifted.
According to the US Department of Health and Human Services, sex reassignment surgery is a medically necessary and acceptable treatment for those who do not comply with their biological sex, so Medicare does not automatically deny coverage. Coverage would be determined on a case-by-case basis.
While some companies that offer medical coverage for employees seeking sex reassignment opt not to advertise it, the vast majority do not, citing cost concerns, a lack of demand in the past, and/or insurance provider policies.
If you work for a company that has a policy prohibiting discrimination based on gender identity and/or expression, or if company management has shown an openness to transgender workplace issues, you may be able to convince your employer to take the next logical step and fully accept transgender employees' medical needs.
If your company wishes to assist transgender employees by providing sex reassignment surgery under existing plans, you'll need to check with the insurer or switch insurance companies. As state laws in this area are increasingly evolving, it may also be useful to consult with other organizations that offer sex reassignment surgical coverage to learn more about the future costs and coverage requirements.
The costs of transitioning aren't just those associated with the surgery. You must first undergo psychiatric therapy before undergoing sex reassignment surgery. Hormone medications are one of the most costly treatments, so you'll still have to pay for follow-up doctor's visits and medical care.
I think I experienced discrimination. Should I hire a gender discrimination lawyer in Los Angeles, CA?
As per California laws, employers who discriminate or take discriminatory employment actions against employees based on their gender identity violate the rule. Consequently, if you are discriminated against because of your gender identity or other protected characteristics, you have the legal right to sue.
If your employer, HR, or relevant departments cannot resolve your concerns of retaliation, you might have to take it up to court yourself. There are non-profit organizations that provide legal help when you need them. It would be best if you remembered that these organizations could sometimes be underfunded and unable to deal with the high volume of requests they receive.
It's also necessary to file the claim with the proper entity because, in most cases, an administrative complaint must be filed before a discrimination lawsuit in California can be filed.
Gathering information and documenting your employer's conduct both before and after your complaint are necessary steps in building a case against your employer for workplace retaliation.
An experienced gender discrimination lawyer in Los Angeles will help you file a claim and protect your rights. They can also look into other possible claims, especially if the acts of discrimination have intersected with other unlawful employment practices. If your employer has chosen to spread harmful rumors about you in retaliation, it would be grounds for an additional retaliation and defamation claim.
If you are fired, suspended, not working, demoted, or treated unfairly at work because of your real or perceived sexuality and gender identity, California gender discrimination attorneys will help you make a strong case to defend your civil rights. No one should be exposed to such mistreatment or prejudice, and a Los Angeles gender discrimination attorney may be able to help.
Compensation for lost wages, additional benefits, damages for physical injuries or mental distress, and legal fees could be available to you. Discrimination in the workplace based on gender identity and expression is unlawful. You can let a Los Angeles gender discrimination attorney assist you in defending yourself against someone who is violating the law.
What payable damages can you collect for a discrimination claim?
If you were discriminated against because of your gender identity, you could be entitled to a variety of damages and remedies, including but not limited to the following:
Reimbursement
Re-employment or promotion
Changes in policy and preparation
The court decides reasonable equivalent payables for non-economic losses, such as mental anguish, stress, and humiliation.
Attorney fees and expenses
Punitive damages are used to discipline an employer that has engaged in illegal behavior.
Employers who violate discrimination laws can face administrative penalties from the California Department of Fair Employment and Housing.
Should I report a discriminatory incident to my employer?
Yes. Not only is it an unlawful practice, but ignoring the grave signs of it might allow for this horrible work culture to continue. Ignoring it right now might lead to unforeseen incidents that you don't want to happen. HR is there for a reason. You have the right to feel safe and respected in your workplace, and your employers must ensure that by law.
What happens when my employer punishes me for reporting it?
The act of punishing an employee reasonably pointing out unlawful or unconstitutional behavior in the workplace is a case of retaliation. While your boss might not explicitly announce it, workplace retaliation can take the form of decisions that specifically and negatively affects your employment experience.
Here are examples:
Right after you make the complaint, you are demoted or fired
Willfully skewing performance rankings, even when you have done enough of more than your job description needs from you
Unexplained reduced salary
Your working hours have been increased (either by blatantly arranging it or giving you more workload than you should be getting), even when you are not paid by the hour.
Your work responsibilities have been greatly decreased, leaving you with excessive free time. This might affect the prospects of promotion.
You are not permitted to use paid leave or sick days.
You are not permitted to attend company-wide training sessions.
You're intentionally left out of the company's special events and social gatherings.
You are constantly given unfavorable work assignments
You were not given the promotion that you genuinely think you deserve
Your colleagues are bullying you
You're not invited to meetings about a project you're working on.
Can You Prove A Retaliation Claim In California?
To have a solid claim of retaliation, you must prove that you engaged in the protected activity of filing a discrimination lawsuit, that you were mistreated, and that the adverse employment action was causally linked to your complaint filing.
Even though you did not file a complaint with the DFEH if you tell your employer that your boss or a coworker is sexually harassing you and you are moved to a lower-paying department or role. As a result, you are already being retaliated against. The complaint must not be formal to be considered a protected practice.
When you file a report, you must notify your boss right away, and you will be subjected to an investigation. It's also a good idea to seek advice on the validity of your statements. Ascertaining that the racist incidents you're citing are, in fact, unlawful under the law will help you win your discrimination and retaliation cases.
Can You Collect Damages for Retaliation Claims?
Even if the court considers the cited acts to be non-discriminatory by legal definition, you can still sue for retaliation damages. You may have reason to believe that your boss declined to promote you because of your gender. You will also win on the retaliation claim even though you bring a gender identity discrimination case that does not result in a favorable outcome.
If you have been the victim of retaliation in California, you could be entitled to a range of damages, depending on the type of adverse action taken against you. If you are fired because of unlawful or unethical grounds, you are entitled to the compensation you would have earned if you had stayed on until you could reasonably be expected to find another job.
Since each case has its own set of facts, consulting with an experienced California Employment Attorney about the situation may be helpful.
In Case of Wrongful Termination
If you were fired from a job because of your gender identity--including manner, clothing, or the intention to undergo transitional surgery--then your case has gone beyond an employment discrimination claim. When the discriminatory incident has come to the point that your employer boots you out, you already have a wrongful termination claim.
California's Fair Housing and Employment Act (FEHA) expressly prohibits discrimination based on sexual orientation and gender identity (and other protected characteristics), so you will have two claims at once.
In general, employment in California is on an at-will basis. This implies that you can be fired at any time without having to give your boss a reason. There are cases under which termination is considered unjust, and you have the right to file a lawsuit. This is an example of getting targeted because of your sexual orientation and gender identity.
Constructive Dismissal
An employee may not be fired outright in some situations but may be required to work in unacceptable conditions that suggest an underhanded method of forcing them to resign. These conditions may be created by socially isolating the target, giving them more assignments, and initiating or tolerating a toxic work environment among their coworkers.
You will be entitled to file a wrongful termination case based on constructive discharge in violation of public policy and/or the FEHA if you are subjected to harassment or discrimination because you are gay or bisexual.
You must demonstrate that the defendant who hired you subjected you to unacceptable working conditions that were so unbearable that a rational person in your position would have no choice but to resign, that the employer purposefully produced or deliberately enabled those conditions, and that you resigned as a result of those conditions.
The workplace climate must be exceedingly unacceptable at the end of your employment for conditions to be considered "unacceptable" at the time of your resignation. If you were subjected to slurs or physical harassment at work, specifically to target your gender identity and other protected characteristics, and your employer did nothing about it, you could file a constructive dismissal lawsuit.
Furthermore, the employer must be mindful of these clauses' consequences to pursue a constructive dismissal or wrongful termination lawsuit. Until resigning, consult with California gender discrimination attorneys to ensure that the situation has progressed to the point that legal action is required.
In a wrongful termination lawsuit, back pay, front pay, emotional distress costs, interest, and attorneys' fees are potential damages. In certain cases, you can recover punitive damages against the employer for truly egregious behavior.
Do note that punitive damages are rare. They are not impossible, but fairly hard to prove. With enough evidence, however, it can be awarded to you.
Hire the best Gender Discrimination Lawyer in Los Angeles, CA
1000Attorneys.com is a California Bar Association-Certified Lawyer Referral Service that can refer you to a prescreened California gender discrimination lawyer best fit to handle your claims. Contact us on our 24/7 lawyer referral hotline at 1-661-310-7999 or complete our inquiry submission form for a FREE INITIAL CONSULTATION.
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