Are transgender workers protected under California’s employment laws?



Are transgender workers protected under California’s employment laws?

Yes, California’s Fair Employment and Housing Act makes it illegal to discriminate based on employee’s sexual orientation, gender identity or gender expression. These laws necessarily cover an employee’s transgender and transitioning status. Thus, workers of covered employers are protected if they tell their employer that they are in the process of transitioning, or have already transitioned.

Employees who work for covered employers are protected not only from being fired based on their sexual orientation, gender identity or gender expression, but also from any other type of discriminatory employment action. For example, an employer cannot demote, fail to promote or otherwise discriminate against a person based on their protected status. Also included in the terms of employment are the benefits that an employer provides to its employees. Thus, an employer cannot exclude coverage for same-sex spouses or registered domestic partners. Additionally, employers are not permitted to ask – directly or indirectly – about a job applicant’s sexual orientation, gender identity, or gender expression.

Harassment is also a form of discrimination. If an employer subjects an employee to a hostile, intimidating or offensive work environment that interferes with the worker’s ability to do their job, the employer can be liable through a California employment discrimination claim. Some of the types of conduct that a court may consider when reviewing a hostile work environment claim based on an employee’s sexual orientation, gender identity or gender expression include:

  • Intentional and continued use of the wrong pronouns when referring to the employee;
  • Allowing other employees to make crude jokes;
  • Permitting the posting of offensive or sexually suggestive material in common work areas;
  • Tolerating threatening or sexualized language; or
  • Denying an employee from using the restroom of their choice.

In California, discrimination is prohibited based on “actual or perceived” sexual orientation, gender identity and gender expression. Thus, it is not a defense to a sexual discrimination claim that the employer was mistaken about an employee’s identity.

While the vast majority of employers are covered under the federal and California anti-discrimination laws, certain employers are not. These may include religious organizations and small businesses with fewer than five employees.

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