gender discrimination lawyer

Can California Employees Be Legally Fired For Not Conforming to Gender Stereotypes?

Your employer cannot fire you because they believe you do not fit within what they consider to be an acceptable stereotype. However, that does not necessarily stop employers. According to the National Center for Transgender Equality, more than 25 percent of transgender employees have been fired, and more than 75 percent have suffered workplace discrimination.

The terms “sex” and “gender” have always had different meanings. Until recently, much of the public used these two words interchangeably. Sex refers to a set of biological attributes. Traditionally, sex is categorized as female or male. Gender refers to socially-constructed behaviors and expressions. Gender is not binary (male or female) and is more fluid than sex, meaning that, for some people, gender changes over time.

California law protects employees from both sex and gender discrimination. Under the Fair Employment and Housing Act (FEHA), “sex” discrimination includes discrimination based on an employee’s gender. California law explains that gender includes an employee’s “identity, appearance or behavior, whether or not that identity, appearance or behavior is different from that traditionally associated with the employee’s sex at birth.” Thus, an employer cannot rely on an employee’s sex or gender when making an employment decision, unless there is a legitimate reason for doing so, which is extremely uncommon. Employers are also responsible for fostering a harassment-free workplace.

California law also protects against discrimination based on an employee’s sexual orientation. Notably, these protections extend to both gay and straight employees, as well as bisexual and asexual workers.

When it comes to defining what counts as discrimination, any “adverse action” taken against an employee can be the basis of an employment discrimination lawsuit. For example, if an employer fires an employee because they do not conform to gender stereotypes, this would be discrimination. However, the term adverse action covers a broad range of employment decisions. While courts require that an employee show that an employer’s actions were more than “minor or trivial,” they do not need to rise to the level of termination.

Often, employees intuitively know when they have suffered an adverse employment action. However, proving that it was related to their sex, gender or sexual orientation can be challenging. California employers typically know what the law requires of them. Thus, employers are rarely explicit about their intentions, and may couch their decisions in seemingly valid reasons. However, courts do not necessarily take an employer’s proffered reasons on their face. By working with an experienced Bay Area gender discrimination lawyer, employees can help get to the bottom of their employer’s decision to fire them, and potentially recover compensation through a California wrongful termination lawsuit.

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